Hillary Clinton emails - FOIA
2016-01-16-Politico-Appeals-Court-hears-argument-on-private-email-being-subject-to-FOIA
Appeals court could complicate Clinton email litigationBy Josh Gerstein
Politico, 2016-01-16
A federal appeals court appears poised to issue a ruling
that could complicate and prolong
the litigation morass surrounding Hillary Clinton's use of a private email account
during her tenure as secretary of state.
A D.C. Circuit three-judge panel hearing arguments in an unrelated dispute
over the emails of White House science and technology adviser John Holdren
strongly signaled Thursday that
it plans to overturn a district court ruling that emails in Holdren's personal account
are beyond the reach of the Freedom of Information Act.
During more than an hour of arguments,
Judge Harry Edwards was openly hostile to the Justice Department's arguments.
Judge David Sentelle appeared similarly inclined against the government,
though he expressed his view a bit less vociferously.
Judge Sri Srinivasan seemed more conflicted, leaving his vote in some doubt
but apparently not consequential to the outcome.
"Your version of 'control' is really strange,"
Edwards told Justice Department lawyer Daniel Tenny.
"It's utterly implausible," the judge added,
also referring for good measure to the government's position as
"narrow," "bizarre," "perplexing," and "silly."
He insisted an agency could have "constructive control" of records
even if they were in a private account or home.
"To write a decision the way you're describing it would really be an embarrassment.
A lot of people would be laughing at us.....
You are asking us to [issue a decision] that is beyond anything
I could ever imagine the court ought say,"
Edwards said, repeatedly declaring of the government's position:
"It makes no sense."
"You're reasoning in a circle here," Sentelle complained to Tenny at one point.
Clinton's situation was never mentioned explicitly,
although both Sentelle and Edwards brought up hypotheticals
that seemed to encompass Clinton's decision
to keep work-related emails in a private account
and leave the agency without turning them over.
...
When fighting requests for more assertive action
to verify that Clinton and her top aides have turned over
all work-related emails in their possession,
the Justice Department has repeatedly turned to
U.S. District Court Judge Gladys Kessler's March ruling in the Holdren dispute
as authority for the proposition that
agencies have no duty under FOIA
to do anything to obtain emails in personal accounts.
If the appeals court reverses that decision, as the judges seem inclined to do,
plaintiffs in dozens of pending FOIA suits are likely to re-file motions
seeking to force the State Department to do more to confirm that
all work-related messages have been provided to the agency,
perhaps by involving an outside special master.
The case before the appeals judges' Thursday involved
a request from the conservative Competitive Enterprise Institute
for records Holdren kept on a "whrc.org" email account connected to
the privately-run Woods Hole Research Center in Falmouth, Mass.
The White House Office of Science and Technology Policy, which Holdren runs,
rebuffed the request,
saying his personal-account emails were beyond FOIA's reach.
Last March, Kessler dismissed CEI's lawsuit, holding that
the agency was not improperly withholding records under FOIA
if it did not have possession or control of those records.
She relied, as the government did Thursday, on
a 1980 Supreme Court case that held
journalists could not use FOIA to obtain records Secretary of State Henry Kissinger
deeded to the Library of Congress.
Tenny insisted the Kissinger case was squarely on point
and relieved OSTP of any obligation to ask Holdren to search his personal account.
"The question is whether the agency has them,"
Tenny said, referring to the records or emails.
"In Kissinger...the court did not say you have to ask for the materials."
Tenny also noted that in the case of the Kissinger records,
he retained the right to access them and to designate others who could review them.
The DOJ lawyer also noted that Holdren's emails aren't physically in his possession,
but in the possession of a private party who controls the server.
...
A coalition of 27 media organizations represented by the Reporters Committee for Freedom of the Press
filed an amicus brief urging the appeals court to overturn Kessler's decision.
Reporters Committee attorney Katie Townsend warned the appeals judges Thursday that
allowing an agency to disclaim any responsibility for records kept in a personal email account
would open the door for evasion of FOIA.
"if countenanced by this court, the district court decision
will have a disastrous effect on government transparency."
One issue lurking in the case background is the impact of a 2014 law
that orders federal employees to copy all work-related emails in their personal accounts
to an official account within 20 days.
Some records at issue in the CEI case and all of those in the Clinton-related cases predate that law,
but many legal experts contend employees had a legal duty to do that
even before the law was passed.
Edwards was appointed by President Jimmy Carter,
Sentelle by President Ronald Reagan,
Srinivasan by President Barack Obama and
Kessler by President Bill Clinton.
2016-02-23-WP-us-judge-weighs-deeper-probe-into-clintons-private-email-system
U.S. judge orders discovery to go forward over Clinton’s private email systemBy Spencer S. Hsu
Washington Post, 2016-02-23 (February 23 at 4:02 PM)
A federal judge on Tuesday ruled that State Department officials and top aides to Hillary Clinton should be questioned under oath about whether they intentionally thwarted federal open records laws by using or allowing the use of a private email server throughout Clinton’s tenure as secretary of state from 2009 to 2013.
The decision by U.S. District Judge Emmet G. Sullivan of Washington came in a lawsuit over public records brought by Judicial Watch, a conservative legal watchdog group, regarding its May 2013 request for information about the employment arrangement of Huma Abedin, a longtime Clinton aide.
Officials with the State and Justice departments said that they were aware of the order but declined to comment further, citing the ongoing litigation. Discovery orders are not readily appealable. An attorney for Abedin declined to comment.
Sullivan set an April 12 deadline for parties to litigate a detailed investigative plan--subject to court approval--that would reach well beyond the limited and carefully worded explanations of the use of the private server that department and Clinton officials have given.
Sullivan also suggested from the bench that he might at some point order the department to subpoena Clinton and Abedin to return all emails related to Clinton’s private account, not just records their camps previously deemed work-related and returned.
“There has been a constant drip, drip, drip of declarations. When does it stop?” Sullivan said, “This case is about the public’s right to know.”
In granting Judicial Watch’s request, Sullivan said that months of piecemeal revelations about Clinton and the State Department’s handling of the email controversy created “at least a ‘reasonable suspicion’ ” that public access to official government records under the federal Freedom of Information Act was undermined.
Sullivan noted that there was no dispute that senior State Department officials were aware of the email set-up from time Clinton took office, citing a January 2009 email exchange including Undersecretary for Management Patrick F. Kennedy, Clinton chief of staff Cheryl D. Mills and Abedin about establishing a “stand-alone network” email system.
Sullivan said the State Department’s inspector general last month faulted the department and Clinton’s office for overseeing processes that repeatedly allowed “inaccurate and incomplete” FOIA responses, including a May 2013 reply that found “no records” concerning email accounts Clinton used, even though dozens of senior officials had corresponded with her private account.
In a statement, Judicial Watch President Thomas J. Fitton called the ruling “a major victory” for the public, and did not rule out that Clinton could become one of the current and former department officials whose testimony his group would seek.
“The court-ordered discovery will help determine why the State Department and Mrs. Clinton, even despite receiving numerous FOIA requests, kept the record system secret for years,” Fitton said. “While Mrs. Clinton’s testimony may not be required initially, it may happen that her testimony is necessary for the Court to resolve the legal issues about her unprecedented email practices.”
Sutton’s group in court filings did not ask to depose Clinton by name, but targeted requests at those who handled her transition, arrival and departure from the department and who oversaw Abedin, a direct subordinate.
...
The FBI and the department’s inspector general are continuing to look into whether the private setup mishandled classified information or violated other federal laws.
For six months in 2012, Abedin was employed simultaneously by the State Department, the Clinton Foundation, Clinton’s personal office and a private consulting firm connected to the Clintons.
The department stated in February 2014 that it had completed its search of records for the secretary’s office. After Clinton’s exclusive use of a private server was made public in May, the department said that additional records probably were available.
In pursuing information about Abedin’s role, Judicial Watch argued that the only way to determine whether all official records subject to its request were made public was to allow it to depose or submit detailed written questions about the private email arrangement to a slew of current and former top State Department officials, Clinton aides, her attorneys and outside parties.
Justice Department lawyers countered in court that the State Department is poised to finish publicly releasing all 54,000 pages of emails that Clinton’s attorneys determined to be work-related and that were returned to the State Department at its request for review.
The case before Sullivan, a longtime jurist who has overseen other politically contentious FOIA cases, is one of more than 50 active FOIA lawsuits by legal groups, news media organizations and others seeking information included in emails sent to or by Clinton and her aides on the private server.
The State Department has been releasing Clinton’s newly recovered correspondence in batches since last summer with a final set due Monday.
Meanwhile, former Clinton department aides Mills, Abedin, Jacob Sullivan and Philippe Reines have returned tens of thousands of pages of documents to the department for FOIA review, with releases projected to continue into at least 2017.
The State Department also has asked the FBI to turn over any of an estimated 30,000 deleted emails deemed personal by Clinton’s attorneys that the FBI is able to recover in its investigation of the security of the private email server.
“There can be no doubt that [the State Department’s] search for responsive records has been exceedingly thorough and more than adequate under FOIA,” according to filings by Justice Department civil division lawyers, led by Principal Deputy Assistant Attorney General Benjamin C. Mizer.
They argued that FOIA requires the agency to release records only under its control — not under the control of its current or former officials — and that “federal employees routinely manage their email and ‘self-select’ their work-related messages when they, quite permissibly, designate and delete personal emails from their government email accounts.”
...
In seeking records related to Abedin’s employment, Judicial Watch asked to be allowed to depose or submit written questions to current and former State Department employees and Clinton aides, including Kennedy; John F. Hackett, director of information services; Executive Secretary Joseph E. Macmanus; Clinton’s chief of staff, Mills; lawyer David E. Kendall; Abedin; and Bryan Pagliano, a Clinton staff member during her 2008 presidential campaign who helped set up the private server.
More broadly, the group’s motion targets who oversaw State Department information systems, Clinton’s transition and arrival at the department, her communications, and her and Abedin’s departure from the agency.
“What emails . . . were deleted . . . who decided to delete them, and when?” Judicial Watch asks in filings.
The group also asks whether any archived copies of sent or received emails on the private server existed, including correspondence with Clinton technology contractors Platte River Networks and Datto.
Rosalind S. Helderman contributed to this report.
2016-02-23-WP-hillary-clinton-staff-questioned-email
Judge rules Clinton staff can be questioned about emailsBy Rachael Bade and Josh Gerstein
Politco, 2016-02-23
A federal judge on Tuesday ruled that top Hillary Clinton staff should be questioned under oath about her use of a private email — another potential setback to the Democratic frontrunner's effort to leave the email controversy behind.
U.S. District Court Judge Emmet Sullivan granted a motion for discovery filed by Judicial Watch, which sued the State Department for Clinton-related documents and is now arguing there is “reasonable suspicion” that Clinton or State staff tried to thwart the Freedom of Information Act. That law requires all work emails to be archived in a government systems for public view.
...
Fitton said the judge mentioned in the hearing he is considering subpoenaing Clinton for all of her emails, not just the ones her staff and lawyer deemed official.
“He said he didn’t know how he could not conclude that there was a ‘reasonable suspicion,’” that aides tiptoed around FOIA, pointing to not only the State IG report but also emails suggesting top State staff knew of the personal email set up.
The ruling comes just hours after a 10 a.m. hearing on the matter in Washington. Judicial Watch lawyers argued that there was “reasonable suspicion” that Clinton and her staff intentionally tried to undermine record-keeping rules. They held up as proof a State inspector general report published in January that blasted the department for inaccurate and incomplete responses to FOIA requests on Clinton email accounts.
So far, the group has not sought to depose Clinton, but says it may still do so.
...
2016-02-23-JudicialWatch-federal-court-grants-judicial-watch-discovery-on-clinton-email-issue
Federal Court Grants Judicial Watch Discovery on Clinton Email Issuefrom the Judicial Watch "Press Room", 2016-02-23
[This brief announcement of Judge Sullivan's statements includes
a link to the 87-page complete testimony of the hearing
(BTW, note the error in the date on that transcript).
This is an EXTRAORDINARILY useful document,
showing Judge Sullivan working through with the lead Judicial Watch attorney
what the status of the case is and what can or should be done in the future.
Note that several quotations from Judge Sullivan's remarks are featured in
the 2016-02-29 Washington Times article on the emails.
This transcript begins with Judge Sullivan giving a very useful summary of how this case originated and got to this point,
in which he interjects his opinions and surprise about various government actions regarding the emails,
e.g., page 5, lines 9-17, especially lines 14-16.
Note the following statements from Judge Sullivan (when not noted)
or Michael Bekesha, attorney for Judicial Watch (when so noted):]
page 9, lines 1-4:
the major exception to this limited scope of discovery is when
the plaintiff raises a sufficient question as to
the agency's good faith in processing the documents;
in such instances, discovery has been permitted.
page 10, lines 5-7:
you need discovery in order to uncover admissible evidence about
whether the State Department and the former secretary deliberately thwarted FOIA.
page 29, lines 23-25
Judge Sullivan:
Did the government claim it was unaware of that parallel system?
[Which means Clinton's private server, vice the State Department's systems.]
Judicial Watch attorney Bekesha:
They haven't answered that question.
page 32, lines 15-19
Judicial Watch attorney Bekesha:
In fact, we provided limited evidence that shows that State Department employees helped manage, maintain, use the system.
And there was the head of the agency.
For all intents and purposes, the system was an agency system.
It was just parallel to the normal course.
page 36, lines 17-20
Judge Sullivan:
you [Attorney Bekesha] say that you need discovery
to explore whether Mrs. Clinton and the State Department
sought to deliberately thwart FOIA
through the establishment used in the concealment of Clintonemail.com.
page 45, lines 6-22
[Bekesha lays out the proposed sequence of events: discovery followed by subpoenas.]
page 46
[Court recess from 1109 to 1137.]
page 47, lines 1-6
MR. BEKESHA:
...
I wanted to just come up and formally ask the Court
so that it's before you, move that in -- based on the entire record,
that orders be entered to the State Department
to subpoena the PST files of Mrs. Clinton and Mrs. Abedin
from the Clintonemail.com system.
page 47, lines 14-17
Judge Sullivan:
The understanding I have right now is that
there are sufficient facts to show that
senior State Department staff knew about Clintonemail.com
from the beginning of the former secretary's tenure as Secretary of State.
For example ...
page 47, lines 24-25; page 48, lines 1-4
Judge Sullivan:
There's a January 2016 OIG report that concludes there is evidence that
dozens of staff communicated with the secretary through personal accounts,
yet have [sic?] the OIG found no evidence that
staff involved in responding to FOIA
had knowledge of the secretary's personal email server,
and that's set forth in pages 14 and 15 of that report.
page 48, lines 20-25; page 49, lines 1-6
Judge Sullivan:
How on earth can the Court conclude there's not, at a minimum,
a reasonable suspicion of bad faith regarding
the State Department's response to this FOIA request?
[I suspect Judge Sullivan meant for the "not" to precede "conclude"
rather than be where it is now.]
It appears that no one took any steps to ensure that agency records on Clintonemail.com
were secured within the State Department's record systems
so that FOIA requests received during the former secretary's tenure
would be responded to appropriately.
Am I missing something?
Government counsel needs to tell me what I'm missing.
How in the world could this happen?
[Emphasis added by the author of the current blog.]
Which leads to the first question:
Does the government -- does the State Department
concede that senior staff knew about and condoned
the use of Clintonemail.com?
page 49
[The lead counsel for the government,
Steven A. Myers of the Department of Justice,
finally gets a chance to respond.
As a key part of his argument, he cites
Kissinger v. Reporters Committee for Freedom of the Press (1980)
(detailed explanation).]
page 57, lines 15-17
THE COURT:
The public may never know what the answers are
to the OIG investigation or
to this FBI investigation,
if there is one ongoing.
page 60, lines 14-20
THE COURT:
So if the Court were to permit Judicial Watch to take discovery
in order to answer some of the many outstanding questions
regarding who approved the use of Clintonemail.com, et cetera,
and the Court were to conclude that
there's sufficient evidence to show that
the State Department condoned the use of Clintonemail.com,
isn't that enough to show that
the State Department deliberately thwarted FOIA?
page 78, line 9-24
THE COURT
It seems to me, though, that until those questions have been satisfactorily answered,
how in the world can the Court determine, as a matter of law,
that considering all the circumstances in this case,
the government has, indeed, as a matter of law,
conducted an adequate search to ensure compliance with the FOIA request?
That's the troubling predicament that the Court finds itself in now,
because this is the atypical case,
and there's not a lot of -- there's not another case --
Kissinger only goes so far,
and it doesn't go as far as the government would like it to go.
So there's not another case out there,
and hopefully there won't be another case like that
because we're not talking about a director of an office or an employee of an agency.
We're talking about a cabinet-level official
who was accommodated by the government
for reasons unknown to the public.
And I think that's a fair statement:
For reasons heretofore unknown to the public.
And all the public can do is speculate.
...
page 80, lines 20-25, page 81, lines 1-23
MR. MYERS [DOJ attorney]: Well, Your Honor, respectfully,
this case is not about the public's right to know.
It's about judicial --
THE COURT: It's not?
MR. MYERS: It's about judicial --
THE COURT: Oh, I've got the wrong file, then.
I thought this was a FOIA case.
MR. MYERS: This is about Judicial Watch's request for certain documents,
and it's about whether or not State has searched for and provided those documents.
I understand that the
use of the Clintonemail.com server raises broader questions,
but they're not before Your Honor.
THE COURT: Right. All right. Which questions are not before me?
MR. MYERS: The question, for example, of
why the system was set up the way that it was
is not relevant to --
THE COURT: And it doesn't dovetail into a legitimate FOIA inquiry?
MR. MYERS: It does not, Your Honor.
THE COURT: It don't help the Court determine, in the final analysis,
whether the search was adequate?
MR. MYERS: It does not, Your Honor. It does not.
THE COURT: And why not?
MR. MYERS: Because the only questions here are
whether State searched, you know, for the records adequately,
and why the records where -- you know,
were where they were, is not relevant to that question.
And, again, Kissinger says you can assume wrongful removal.
You can assume they're agency records,
but FOIA still does not provide relief.
THE COURT: All right. All right.
Anything else you want to say, Counsel?
JW attorney Bekesha offers his comments on page 82 ff.
Judge Sullivan says "Here's what I'm going to do." on page 83 ff.
page 85, lines 4-9
THE COURT:
It'll be 15th of March for plaintiff's submission of detailed discovery plan, and --
oh, I'm sorry, April the 5th. April the 5th for the government's submission,
and maybe I'll give you -- give the plaintiffs a week thereafter to --
ten days thereafter, April 15th, for any reply to the government's submission.
page 85, lines 16-22
THE COURT
...
I think there are some legitimate issues that arise
because of this very atypical system that was created,
and I think that answers to the questions may well inform the Court
and put the Court in a better position to determine whether or not,
as a matter of law -- and that's the big question:
Whether or not, as a matter of law,
the government has discharged its FOIA responsibilities
and conducted an adequate search.
page 86, lines 8-19
THE COURT: All right. I know I mentioned issuing a subpoena.
I'll give that some thought.
It may well be that discovery should be accomplished, commenced, and concluded
prior to the issuance of a subpoena or directive to issue to a subpoena.
I think that that's a legitimate tool, but in the interim
the Court will not direct the government at this time to issue a subpoena.
But I think it's an issue that's worthy of further discussion at the appropriate time,
and I appreciate the plaintiff's candor in that regard, too.
It may well will be that there needs to be a more fully-developed record before a subpoena is issued,
but I think it's a fair issue to discuss at the appropriate time.
But I want to get past discovery at this time.
2016-03-15-JW-judicial-watch-presents-federal-court-with-proposed-witness-list-discovery-plan-in-clinton-email-matter
Judicial Watch Submits Proposed Witness List, Discovery Plan to Federal Court in Clinton Email MatterJudicial Watch, 2016-03-15
...
Judicial Watch seeks testimony from:
Stephen D. Mull (Executive Secretary of the State Department from June 2009 to October 2012 and suggested that Mrs. Clinton be issued a State Department BlackBerry, which would protect her identity and would also be subject to FOIA requests);
Lewis A. Lukens (Executive Director of the Executive Secretariat from 2008 to 2011 and emailed with Patrick Kennedy and Cheryl Smith about setting up a computer for Mrs. Clinton to check her clintonemail.com email account);
Patrick F. Kennedy (Under Secretary for Management since 2007 and the Secretary’s principal advisor on management issues, including technology and information services);
Donald R. Reid (Senior Coordinator for Security Infrastructure, Bureau of Diplomatic Security since 2003 and was involved in early discussions about Mrs. Clinton using her BlackBerry and other devices to conduct official State Department business);
30(b)(6) deposition(s) of Defendant [designated witness(es) for the State Department] regarding the processing of FOIA requests, including Plaintiff’s FOIA request, for emails of Mrs. Clinton and Ms. Abedin both during Mrs. Clinton’s tenure as Secretary of State and after;
Cheryl D. Mills (Mrs. Clinton’s Chief of Staff throughout her four years as Secretary of State);
Huma Abedin (Mrs. Clinton’s Deputy Chief of Staff and a senior advisor to Mrs. Clinton throughout her four years as Secretary of State and also had an email account on clintonemail.com); and
Bryan Pagliano (State Department Schedule C employee who has been reported to have serviced and maintained the server that hosted the “clintonemail.com” system during Mrs. Clinton’s tenure as Secretary of State four years as secretary).
With respect to testimony of Clinton, the Judicial Watch court filing states:
Based on information learned during discovery, the deposition of Mrs. Clinton may be necessary. If [Judicial Watch] believes Mrs. Clinton’s testimony is required, it will request permission from the Court at the appropriate time.
Judicial Watch also seeks court approval of written questions requiring answers under oath by the State Department:
Who was responsible for processing and/or responding to record requests, including FOIA requests, concerning emails of Mrs. Clinton and other employees of the Office of the Secretary;
Who was responsible for the inventorying or other accounting of Mrs. Clinton’s and Ms. Abedin’s emails, records, and information;
Who was responsible for responding to Plaintiff’s FOIA request from the date of submission to the present; and
Which State Department officials and employees had and/or used an account on the clintonemail.com system to conduct official government business.
Judicial Watch also seeks testimony from a 30 (b)(6) witness or witnesses who can provide testimony on behalf of the State Department on the following issues:
the creation or establishment of the clintonemail.com system as well as any maintenance, service, or support provided by the State Department of that system;
the knowledge or awareness of State Department officials and employees about the existence and use of the clintonemail.com system;
any instructions or directions given to State Department officials and employees about communicating with Mrs. Clinton and Ms. Abedin via email;
any inquiries into Mrs. Clinton’s use of the clintonemail.com system as well as any discussions about responding to such inquiries or publicly revealing the existence and use of the clintonemail.com system to the public; and
the inventorying or other accounting of Mrs. Clinton’s and Ms. Abedin’s email upon their departure from the State Department.
The Judicial Watch plan requests only eight weeks to conduct the requested depositions.
Judge Sullivan will rule on Judicial Watch’s proposed discovery plan after April 15.
2016-03-28-CSPAN-washington-journal-joseph-digenova-hillary-clintons-emails
Investigation Into Hillary Clinton's EmailsJoseph diGenova talked about the investigation into emails sent to and from Hillary Clinton’s personal email server during her time as Secretary of State.
C-SPAN Washington Journal, 2016-03-18
[Joseph diGenova gives a very well-informed discussion of the legal issues.
The full program is about 49 minutes.
diGenova discusses criminal intent and the "Original Sin" between 4:14 and 5:52.
Asked about criminal intent (at 4:15 into the interview),
he answered by saying,
“[4:55] The question I ask myself as an investigator is
‘Why would someone set up a private server to all of their government business?’ . . .
The answer I get is
to avoid disclosure, to evade, to prevent people from finding out what’s there.”
The call-in part begins about 14:00.
DiGenova gives a detailed analysis of the FOIA issues between 30:30 and 34:00 of the video.]
Video of FOIA part only:
Video of complete program:
2016-03-29-JW-second-federal-court-grants-discovery-in-clinton-email-case-Judge-Lamberth
Second Federal Court Grants Discovery in Clinton Email CaseJudicial Watch Press Release, 2016-03-29
(Washington, DC) –
Judicial Watch announced today that
U.S. District Court Judge Royce Lamberth
granted “limited discovery” to Judicial Watch
into former Secretary of State Hillary Clinton’s email matter.
Lamberth ruled that
“where there is evidence of government wrong-doing and bad faith, as here,
limited discovery is appropriate, even though it is exceedingly rare in FOIA cases.”
...
Judge Lamberth granted Judicial Watch’s Motion for Discovery,
which was filed in opposition to the State Department’s Motion for Summary Judgement.
The court ruled:
This matter comes before the Court
on plaintiffs motion for limited discovery
regarding the adequacy of
the State Department's search for responsive documents
in this Freedom of Information Act case.
...
Where there is evidence of government wrong-doing and bad faith,
as here,
limited discovery is appropriate,
even though it is exceedingly rare in FOIA cases.
An understanding of the facts and circumstances surrounding
Secretary Clinton’s extraordinary and exclusive use of her “clintonemail.com” account to conduct official government business,
as well as other officials’ use of this account and their own personal e-mail accounts to conduct official government business
is required before the Court can determine
whether the search conducted here reasonably produced
all responsive documents.
Plaintiff is certainly entitled to dispute the State Department’s position
that it has no obligation to produce these documents
because it did not “possess” or “control” them
at the time the FOIA request was made.
The State Department’s willingness to now search documents voluntarily turned over to the Department by Secretary Clinton and other officials
hardly transforms such a search into an “adequate” or “reasonable” one.
Plaintiff is not relying on “speculation” or “surmise” as the State Department claims.
Plaintiff is relying on constantly shifting admissions by the Government and the former government officials.
Whether the State Department’s actions
will ultimately be determined by the Court to not be “acting in good faith”
remains to be seen at this time,
but plaintiff is clearly entitled to discovery and a record
before this Court rules on that issue.
The Court must observe that the Government argues in its opposition memorandum that
“the fact that State did not note that it had not searched Secretary Clinton’s e-mails when it responded to Plaintiffs FOIA request …
was neither a misrepresentation nor material omission,
because these documents were not in its possession and control when the original search was completed.”
The Government argues that this does not show a lack of good faith,
but that is what remains to be seen,
and the factual record must be developed appropriately
in order for this Court to make that determination.
...
2016-03-29-Politico-hillary-clinton-email-discovery-Judge-Lamberth
Second judge grants discovery in Clinton email lawsuit
By Josh Gerstein
03/29/16 12:46 PM EDT
Updated 03/29/16 05:06 PM EDT
Politico, 2016-03-29
Citing indications of wrongdoing and bad faith, a federal judge has overruled government objections by declaring that a conservative group is entitled to more details about how Hillary Clinton's private email account was integrated into the State Department recordkeeping system and why it was not searched in response to a Freedom of Information Act request.
U.S. District Court Judge Royce Lamberth entered an order Tuesday agreeing that Judicial Watch can pursue legal discovery — which often includes depositions of relevant individuals — as the group pursues legal claims that State did not respond completely to a FOIA request filed in May 2014 seeking records about talking points then-U.S. Ambassador to the United Nations Susan Rice used for TV appearances discussing the deadly attack on U.S. facilities in Benghazi in September 2012.
Lamberth is the second federal judge handling a Clinton email-related case to agree to discovery, which is unusual in FOIA litigation. Last month, U.S. District Court Judge Emmet Sullivan gave Judicial Watch the go-ahead to pursue depositions of Clinton aides in a lawsuit for records about former Clinton Deputy Chief of Staff Huma Abedin.
The new order underscores the metastasizing potential of the email-related litigation which involves dozens of lawsuits brought by Clinton's political opponents as well as news organizations. While the morass of suits seems destined to remain a nagging headache for Clinton's presidential campaign, the immediate impact of Lamberth's ruling could be limited, as he indicated Tuesday that he'll hold off approving any particular discovery until Sullivan has ruled on the issue in the case he is handling.
"Where there is evidence of government wrong-doing and bad faith, as here, limited discovery is appropriate, even though it is exceedingly rare in FOIA cases," Lamberth wrote in his three-page order. The judge noted that State argues it had no legal duty to search Clinton's emails when Judicial Watch's request arrived because her emails were not in the agency's possession and control at that time. It was not until December 2014 that Clinton turned over a portion of her email archive to State at the agency's request.
"The government argues that this does not show a lack of good faith, but that is what remains to be seen, and the factual record must be developed appropriately for the Court to make that determination," Lamberth wrote. The judge also referred to "constantly shifting admissions by the Government and the former government officials."
The FOIA suits, directed against the State Department, are largely separate from the ongoing FBI investigation into the presence of classified information on Clinton's email server. Clinton's aides are expected to be interviewed in that probe in the coming weeks, with an interview of the former secretary of state and current presidential candidate likely sometime thereafter.
A Justice Department spokeswoman declined to comment on Lamberth's ruling, while a State Department official said her agency is aware of the order and is reviewing it.
...
The State Department's response to the discovery proposal filed last month [in Judge Sullivan's court] is due next Tuesday [April 5].
Sullivan is expected to rule on the issue by April 15.
Lamberth gave Judicial Watch ten days after that ruling
to come forward with any follow-up or further discovery requests "tailored" to the dispute in front of him.
...
2016-03-30-Lang-Another-nail?
Another nail...?by Patrick Lang
Sic Semper Tyrannis, 2016-03-30
2016-04-05-Politico-Gerstein-State-Dept-wants-limits-to-discovery
State Department wants limits on questioning of Clinton aidesBy Josh Gerstein
Politico, 2016-04-05
Top aides to former Secretary of State Hillary Clinton should not be questioned about
an ongoing FBI investigation into the presence of classified information on her private email server
or about
the substance of the messages that were exchanged,
as part of a Freedom of Information Act lawsuit,
the State Department said in a court filing Tuesday night.
...
So, the question before the court now is
what the scope of the depositions and written questions will be.
...
"State submits that the scope of discovery must be limited and specified at the outset to prevent questioning that exceeds the limited inquiry that the Court has authorized,"
the filing from Justice Department laywers says.
"Based on the Court’s statements at the February 23 hearing,
State understands the scope of permissible discovery to be
'the reasons for the creation of [the clintonemail.com] system.'"
"State respectfully submits that the Court’s order should specify that discovery is limited to this topic.
To that end, State requests that the Court clarify that
Plaintiff is not entitled to discovery on matters unrelated to the topic identified by the Court,
to include without limitation:
the substantive information sought by Plaintiff in its FOIA request in this case,
which involves the employment status of a single employee;
the storage, handling,transmission, or protection of classified information, including cybersecurity issues;
and questions about any pending investigations,"
the submission says.
"State objects to any discovery requests pertaining to
the FBI’s pending investigation into matters referred to it
by the Inspectors General of the Intelligence Community and State
in connection with former Secretary Clinton’s use of a private email server."
...
2016-04-12-Politico-Gerstein-hillary-clinton-emails-judicial-watch
Judicial Watch, feds negotiate fact-finding in Clinton email caseBy Josh Gerstein
Politico, 2016-04-12 : 04/12/16 09:04 PM EDT
Lawyers for the State Department and a conservative group are in talks about the scope of a fact-finding process a federal judge has authorized in a lawsuit relating to former Secretary of State Hillary Clinton's private email server, according to a new court filing.
Attorneys for the watchdog group Judicial Watch revealed the discussions as part of a request to U.S. District Court Judge Emmet Sullivan for more time to sort out the discovery issue, which includes potential limits on questioning of former Clinton aides and other State Department officials at depositions expected to take place in the coming months.
Last week, the State Department signaled it did not plan to further oppose Judicial Watch's proposal to seek sworn testimony from former Clinton Chief of Staff Cheryl Mills, former Deputy Chief of Staff Huma Abedin and information technology aide Bryan Pagliano. However, State asked for limits on what questions could be asked of those individuals and other, current State officials to the issue of why Clinton's server was set up in the first place. State is seeking to rule out queries about cybersecurity issues, the presence of classified information on the server and about Abedin's employment arrangement, which is the subject of the Freedom of Information Act request and suit brought by Judicial Watch.
Judicial Watch was scheduled to reply to State's concerns by the end of the day Tuesday, but the group asked that deadline be extended to Friday in order to pursue an agreement with State or at least to narrow the differences.
...
2016-04-15-Judge-Sullivan-discovery-order
3 page PDF of Judge Sullivan's order for discoveryJudge Emmet G. Sullivan
2016-04-15
...
1. The scope of permissible discovery shall be as follows:
the creation and operation of clintonemail.com for State Department business,
as well as the State Department’s approach and practice for
processing FOIA requests that potentially implicated former Secretary Clinton’s and Ms. Abedin’s emails
and State’s processing of the FOIA request that is the subject of this action.
...
2016-04-16-Politico-Gerstein-feds-judicial-watch-strike-deal-on-clinton-email-depositions
Feds, Judicial Watch strike deal on Clinton email depositionsBy Josh Gerstein
Politico, 2016-04-16 : 04/16/16 11:32 AM EDT
The conservative group Judicial Watch and lawyers for the State Department
have struck a deal to govern sworn depositions from three former aides to Hillary Clinton
about the private email server and account she used during her tenure as secretary of state.
The joint proposal detailed in a Friday night court filing calls for the depositions of
former Clinton Chief of Staff Cheryl Mills,
Deputy Chief of Staff Huma Abedin and
information technology specialist Bryan Pagliano
during a two-month discovery period that would follow approval of the agreement by a federal judge.
The deal suggests the politically sensitive interviews could be videotaped.
...
One potential Achilles heel in the arrangement: there's no indication that lawyers for Mills, Abedin and Pagliano are on board. Any or all of them, who are now private citizens and not parties to Judicial Watch's FOIA suit, could try to fight subpoenas issued to them. They could also accept the subpoenas and take the Fifth Amendment, citing the ongoing FBI investigation into how classified information wound up on Clinton's server. Pagliano did that in the FBI inquiry and eventually obtained an immunity deal whose scope remains unclear.
Lawyers for the three did not immediately respond to messages Saturday morning seeking comment on the proposed discovery plan and how they plan to respond to any subpoenas.
In addition to the three ex-Clinton aides Judicial Watch had sought to interview four current State Department officials, Undersecretary of State for Management Patrick Kennedy, former Executive Secretary Stephen Mull, former Executive Secretariat Executive Director Lewis Lukens, and Diplomatic Security official Donald Reid. In the deal filed Friday, Judicial Watch agreed to withdraw the request for Reid's testimony, at least for now.
...
2016-04-21-IBD-clinton-email-scandal-is-the-state-department-part-of-a-hillary-cover-up
Clinton Email Scandal: Is The State Department Part Of A Hillary Cover-Up?Investor Business Daily Editorial, 2016-04-21
...
Clinton’s claim that the emails are personal and therefore aren’t subject to a FOIA request is dubious. When she employed her personal email account handled by her private server for government business and used a State Department employee to maintain them, did not both her emails and server become de-facto government property?
If that’s the case, and it surely appears to be, then the public is entitled to see what’s in those 30,000 emails, the exception being, of course, anything that is classified. If Clinton believes too much of her personal life will be revealed by the emails, then she will just have to suffer the consequences. She consciously chose to use the private email and server to hide what she was doing at State, and she has to live with the fallout of that decision, just as any average American citizen would have to if he or she egregiously erred.
Our concern is that those emails might never be released, especially with the State Department using its clout to keep them under cover. But it’s critical they be disclosed, even the personal ones. Clinton was a public employee and wants desperately to be again. The public deserves to know what she wanted to hide; voters need insight into how she conducts herself outside the public eye. Is she a phony, as many suspect? Or a genuinely decent, caring and honest person, as some imagine?
Then there is her State Department connection with the Clinton Foundation. Did she peddle influence from her perch at State? Secure funding from shady — and foreign — sources to use for her presidential campaign through the foundation? Is it possible that communications to this effect would be what she would deem “personal”? Yes, it is.
...
2016-04-26-JW-state-department-hid-key-clinton-benghazi-email-from-judicial-watch
State Department Hid Key Clinton Benghazi Email from Judicial WatchJudicial Watch, 2016-04-26
...
Contradicting an earlier statement to the court, an April 18, 2016, State Department letter admits that it found the email at issue in 2014 but was held back in its entirety:
Also, upon further review, the Department has determined that one document previously withheld in full in our letter dated November 12, 2014 may now be released in part.
The referenced November 12, 2014, letter does not reference any withheld emails. A search declaration suggests the hidden email was found in September 2014 as a result of a search in response to Judicial Watch’s lawsuit.
The September 29, 2012, email to Clinton from then-Deputy Chief of Staff Jake Sullivan concerns talking points for Clinton calls with senators about the Benghazi attack. The email contains Clinton’s non-state.gov address.
...
2016-05-04-Judge-Sullivan-deposition-order
Order from Judge Emmet G. Sullivan for deposing eight witnessesby Judge Emmet G. Sullivan, 2016-05-04
[Contains a very helpful, informative, and clear time-line of the relevant events and facts in this case.]
...
Finally, and critically, the January 2016 Office of Inspector General report,
“Evaluation of the Department of State’s FOIA Process for Requests Involving the Office of the Secretary” (“OIG Report”)
notes that
although dozens of State Department staff communicated with Mrs. Clinton through the clintonemail.com server,
there is no evidence that personnel involved in responding to FOIA requests
were aware of Mrs. Clinton’s clintonemail.com email address.
The OIG Report also notes that at least one State Department lawyer reported his or her belief that
the State Department was not responding to FOIA requests adequately
because Mrs. Clinton’s emails were excluded from FOIA searches.
...
In sum, the circumstances surrounding approval of
Mrs. Clinton’s use of clintonemail.com for official government business,
as well as the manner in which it was operated,
are issues that need to be explored in discovery
to enable the Court to resolve, as a matter of law,
the adequacy of the State Department’s search of relevant records
in response to Judicial Watch’s FOIA request.
...
2016-05-04-Politico-hillary-clinton-email-deposition-plan
Judge OKs deposition plan in Hillary Clinton email caseBy Josh Gerstein
Politico, 2016-05-04
...
Sullivan's order explicitly left open the question of whether Clinton should be subject to a deposition about the private email arrangement. The order calls for depositions over the next eight weeks of former Clinton chief of staff Cheryl Mills, former deputy chief of staff Huma Abedin and former information technology specialist Bryan Pagliano. Also slated to be deposed under the plan are Undersecretary of State for Management Patrick Kennedy, former executive secretary Stephen Mull and former Executive Secretariat executive director Lewis Lukens.
The eight-week period to complete the depositions will conclude in late June. That timing has the potential to tee up a debate about a possible deposition of Clinton just a few weeks before she is expected to receive the Democratic nomination for president at the party's national convention in Philadelphia.
...
Those interrogatories include:
1.
Who was responsible for processing and/or responding to record requests, including FOIA requests,
concerning emails of Mrs. Clinton and other employees of the Office of the Secretary;
2.
Who was responsible for the inventorying or other accounting of Mrs. Clinton’s and Ms. Abedin’s emails, records, and information;
3.
Who was responsible for responding to Plaintiff’s FOIA request from the date of submission to the present; and
4.
Which State Department officials and employees had and/or used an account on the clintonemail.com system to conduct official government business.
...
2016-05-17-JW-judicial-watch-announces-schedule-deposition-testimony-clinton-email-lawsuit
Judicial Watch Announces the Schedule for Deposition Testimony in Clinton Email Lawsuit [from Judge Sullivan's court]Judicial Watch, 2016-05-17
2016-05-20-JW-hillary-clinton-should-testify-under-oath
Hillary Clinton Should Testify Under Oathby Tom Fitton
Judicial Watch Weekly Update, 2016-05-20
...
Judicial Watch Seeks Hillary Clinton Testimony
The question of whether Hillary Clinton can be questioned under oath by Judicial Watch attorneys now is squarely before a federal court judge [U.S. District Court Judge Royce Lamberth].
We also announced this week that we have filed a proposed order for discovery with a federal court that seeks the testimony of Hillary Clinton, herself, about her use of non-state.gov email account(s) for official State Department business.
This additional discovery comes in a July 2014 Freedom of Information (FOIA) lawsuit seeking records and communications in the Secretary’s Office related to the since discredited talking points used by then-U.N. Ambassador Susan Rice to describe the nature of the September 11, 2012, Benghazi attack (Judicial Watch v. U.S. Department of State (No. 1:14-cv-01242)).
Clinton’s proposed testimony would cover the State Department’s search of documents in response to Judicial Watch’s FOIA request and, according to the filing:
- searches of the Office of the Secretary for emails relating to the September 12, 2012 Benghazi attack and its aftermath, including searches for the Accountability Review Board, congressional inquiries, other FOIA requests, and the preparation of Secretary Clinton’s testimony before Congress on January 23, 2013;
- the State Department’s policies, practices, procedures and/or actions (or lack thereof) to secure, inventory, and/or account for all records, including emails, of Secretary Clinton, prior to [her] termination of employment with the State Department; and
- the use of non-state.gov email account(s) to conduct official State Department business by Secretary Clinton and other officials and staff in the Office of the Secretary;
...
2016-06-02-WT-hillary-clintons-chief-email-defense-is-false
Hillary Clinton’s chief email defense is falseBy S.A. Miller and Stephen Dinan
Washington Times, 2016-06-02
Hillary Clinton’s chief defense of her email behavior is that she tried to forward her messages so they were captured by the State Department — but a Washington Times analysis found she clearly did that only a quarter of the time when she was corresponding with someone outside the department.
More often than not, when Mrs. Clinton was exchanging thoughts or policy memos with outsiders, their correspondence ended up in the digital black hole of her secret email system and were never forwarded to anyone else in the State Department.
Although dozens of her top aides knew about her private email,
they kept it secret from the State Department office charged with handling open records requests,
meaning those staffers didn’t know how to find her messages —
effectively shielding them from public view for nearly six years.
...
2016-06-09-JW-judicial-watch-releases-clinton-email-deposition-testimony-karen-lang-director-executive-secretariat-staff
Clinton Email Update: Judicial Watch Releases Clinton Email Deposition Testimony of Karin Lang, Director, Executive Secretariat StaffJudicial Watch, 2016-06-09
Judicial Watch today released the deposition transcript of Karin Lang, director of executive secretariat staff and designated representative for the State Department. The Lang transcript is available here. Lang was designated by the State Department as its 30(b)(6) witness. A 30(b)(6) witness is assigned to provide the agency’s testimony on the Clinton email issue.
Lang testified that key State Department federal recordkeeping officials
did not know that former Secretary of State Hillary Clinton and her top aide Huma Abedin
were using non-state.gov email to conduct government business.
[Did they ever read the newspapers?
The newspapers frequently published photographs showing Secretary Clinton using her Blackberry while on official trips.
What type of communications did they think she was doing then?]
She also testified that the State Department could not say
whether Clinton or Abedin has turned over all emails in their possession
that may be potentially responsive to Judicial Watch’s Freedom of the Information Act (FOIA) request.
Lang also said that it would not be reasonable
to search all 70,000 State Department email accounts
in order to retrieve Clinton’s emails.
(Clinton has suggested that the State Department would have many of her emails
because she sent most of them to State Department employees on their government accounts.)
Lang also signed, under the penalty of perjury, State Department answers to Judicial Watch’s written interrogatories about the Clinton email system and FOIA. The State Department acknowledged in its answers that it “has no method of identifying which State Department officials and employees had and/or used an account on clintonemail.com to conduct official government business.”
...
2016-07-05-Politico-Appeals-Court-OKs-private-email-freedom-of-information
Court: Private-account email can be subject to FOIABy Josh Gerstein
Politico, 2016-07-05
On the same day that the FBI announced that the criminal investigation of Hillary Clinton's use of a private email server is likely to conclude without any charges, a federal appeals court issued a ruling that could complicate and prolong a slew of ongoing civil lawsuits over access to the messages Clinton and her top aides traded on personal accounts.
In a decision Tuesday in a case not involving Clinton directly,
the U.S. Court of Appeals for the D.C. Circuit held that
messages contained in a personal email account can sometimes be considered
government records subject to Freedom of Information Act requests.
...
U.S. District Court Judge Gladys Kessler ruled last year
that the government had no duty to search an email account
that wasn't part of OSTP's official system.
But the three D.C. Circuit judges who ruled Tuesday
all said Kessler was too rash in throwing out the suit
and they agreed the case should be reinstated.
While the opinions in the case make no mention of Clinton or her private server,
it seems evident that all three appeals judges involved are aware of the obvious analogy.
"If a department head can deprive the citizens of their right to know
what his ["his"? No gender neutrality here, eh?] department is up to
by the simple expedient of maintaining his departmental emails on an account in another domain,
that purpose is hardly served.
It would make as much sense to say that
the department head could deprive requestors of hard-copy documents
by leaving them in a file at his daughter’s house
and then claiming that they are under her control,"
Judge David Sentelle wrote in an opinion joined by Judge Harry Edwards.
...
The Justice Department declined to comment on the decision,
but the loss could not have come as much of a surprise
since at oral arguments in the Holdren case in January
the judges were clearly deeply skeptical of the government's position.
[So DOJ thinks an agency head
can shield her work-related correspondence from FOIA requirements
simply by using a private server for her work-related correspondence?]
...
"While today’s ruling is a major victory for government transparency,
it’s stunning that it takes a court decision for federal employees to be held accountable to the law,”
CEI senior fellow Marlo Lewis said.
“The ‘most transparent administration in history’
has proven over and over
that it has no intention of actually letting the American public know what it is doing. ...
Director Holdren is not the first agency head to be found
using private email for his government work,
but as we continue our legal battle in this case,
we seek for this unlawful behavior to come to an end.”
2016-07-06-Politico-Glenn-Thrush-clinton-email-takeaways
5 takeaways from Clinton's email reprieveWhile the campaign dodges a bullet – dashing GOP hopes – the scandal will live on.
By Glenn Thrush
Politico, 2016-07-06
...
The email scheme
(conceived by a half-dozen longtime aides and lawyers in secret)
came as no surprise to everybody else not admitted to
the innermost inner sanctum of Hillary land.
Clinton (who famously demanded a “zone of privacy” around her family during the 1992 elections)
jealously guards her right to set up
any system she views as necessary to retain her privacy —
even when those actions conflict with
a public servant’s need to heed disclosure rules.
...
2016-07-08-JW-judicial-watch-asks-federal-court-additional-discovery-seeks-testimony-hillary-clinton
Judicial Watch Asks Federal Court for Additional Discovery:Seeks Testimony of Hillary Clinton
from Judicial Watch, 2016-07-08
...
Judicial Watch announced today that it submitted a request for permission to depose
former Secretary of State Hillary Clinton;
the Director of Office of Correspondence and Records of the Executive Secretariat (“S/ES-CRM”) Clarence Finney; and
the former Director of Information Resource Management of the Executive Secretariat (“S/ES-IRM”) John Bentel.
...
2016-07-12-JW-state-departments-hillary-clintons-opposition-deposition-clinton-finney-bentel
Judicial Watch Statement on State Department’s and Hillary Clinton’s Opposition to Deposition of Clinton, Finney and Bentelby Tom Fitton
Judicial Watch, 2016-07-12
Tom Fitton:
It is no surprise that neither Hillary Clinton nor the Obama State Department
agrees with our request to depose Mrs. Clinton.
What is notable is that the State Department finally admits that
Clinton’s practice of supposedly emailing other State officials using her non-state.gov account
was not an “appropriate method of preserving federal records or making them available for searches under FOIA.”
Second, it is both significant and disturbing that Hillary Clinton now asserts
a private “claim of right” over her non-state.gov email account,
including any of the 55,000 pages of federal records she returned to the State Department.
She further claims that these and other emails,
including emails that may have contained classified information,
have “never been the property of or in the possession or control of the State Department.
2016-07-12-Politico-hillary-clinton-block-deposition-email
Clinton legal team moves to block deposition in email lawsuitBy Josh Gerstein
Politico, 2016-07-12
...
“Judicial Watch claims that it needs to depose Secretary Clinton, a former Cabinet Secretary,
about six purportedly unanswered questions," the filing [from the Clinton legal team] states.
"The record, however, already answers those questions or makes clear that
Secretary Clinton has no personal knowledge to provide.”
...
2016-07-14-JW-judicial-watch-hillary-clinton-testimony-essential
Judicial Watch: Hillary Clinton Testimony EssentialJudicial Watch, 2016-07-16
The JW eleven-page statement to the court.
...
Very soon [at 1421 on Thursday, 2016-07-14] after making its filings, Judicial Watch received notice that the court ordered Clinton and the State Department to file responses to Judicial Watch’s reply briefs no later than Friday at 12 noon. The court specified that they “shall not repeat any argument made previously.”
District Court Judge Emmet G. Sullivan will hear arguments in this case on Monday
2016-07-15-Politico-State-wants-delay-on-deposition-decision
State Department proposes delay on Clinton deposition requestBy Josh Gerstein
Politico, 2016-07-15
2016-07-18-Politico-Judge-Sullivan-delays-decision-on-deposition-ponders-written-questions-instead
Judge mulls written questions to Clinton on emailsBy Josh Gerstein, 07/18/16 02:25 PM EDT
Politico, 2016-07-18
...
While Sullivan has said publicly that
Clinton violated government policy by doing official business on the private server,
[Clinton's lawyer David] Kendall persisted Monday in his claim that
the practice was permissible under State Department rules.
“It was clearly permitted and allowed” by policy, Kendall said,
before acknowledging that Clinton’s server was never specifically approved by anyone at State.
[From what I have read, especially the State Dept. IG report,
that claim by Kendall is a flat-out falsehood.
But who cares when it's Hillary Clinton's political future at stake?
Who cares about things like truth?]
...
During the hearing Monday, which spanned about 2½ hours, including a half-hour break, Sullivan asked several times about the possibility of issuing written “interrogatories” to Clinton, even going so far as to ask Kendall how long he and his client would need to respond to a handful of such queries. Kendall initially said two weeks, but later extended his proposed time frame to 30 days.
...
In addition to Clinton, Judicial Watch is seeking to take depositions from two other individuals in connection with the suit:
a recordkeeping official in the secretary of state's office, Clarence Finney,
and a former manager of computer services for that office, John Bentel.
One of the few areas where Sullivan was definitive Monday was regarding Bentel.
Justice Department attorney Caroline Wolverton opposed any effort to “pull [him] out of retirement,”
[Why on earth would "Justice" oppose forcing Bentel to answer questions on what he said, and why?
Doesn't DO "Justice" care about about why, according to the IG report,
conscientious State Dept. employees were told not to pursue the issue of making Hillary's emails available for FOIA requests?
Doe DO "Justice" think the FOIA does not apply to Queen Hillary?]
but the judge said he believed Bentel “should be deposed.”
A State Inspector General report said two employees remembered
Bentel rebuffing questions about Clinton’s use of a personal email account.
They said he told them not to raise the issue again.
According to one, Bentel said the arrangement was approved by State Department lawyers,
something that does not appear to have happened.
2016-07-28-Judge-Sullivan-hearing-transcript
The transcript of the Monday, 2016-07-28 hearing before Judge Emmet Sullivan...
On February the 23rd,
the Court granted the plaintiff's motion for discovery under Rule 56(d).
The Court was persuaded by the plaintiff that
questions surrounding the creation, purpose and use of the clintonemail.com server
should be explored through limited discovery
before the Court could decide, as a matter of law, the ultimate issue,
whether the government has conducted an adequate search
in response to Judicial Watch's FOIA request.
That's all set forth -- I'm not going to go over that opinion --
in the order. I stand by it. ...
The critical question explored during discovery was
whether or not Mrs. Clinton or the State Department
sought to deliberately thwart FOIA
through the creation and use of Mrs. Clinton's private server.
...
The Court takes extremely seriously the public's right to know about
the details of why Mrs. Clinton used a private server for official government business.
Indeed, FOIA was designed by Congress to,
"pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny."
And that's all set forth in D.C. Circuit precedent, especially Morley v. CIA, 501 F.3rd 1108.
As set forth by the Supreme Court, FOIA serves as,
"The citizen's right to be informed about what the government is up to,"
citing the Supreme Court authority in U.S. Department of Justice versus Reporters Community For Freedom of the Press, 489 U.S. 749.
I agree with the FBI director, Director Comey, that
the American people deserve as many details as possible
in the case of intense public interest.
...
Judicial Watch argues that
deposing Mrs. Clinton is necessary to explore the following issues:
1, the purpose for the clintonemail.com system;
2, why the system was used even though at times it interfered with her job;
3, Mrs. Clinton's claim over the records on the clintonemail.com system;
4, Mrs. Clinton's inventorying of records upon the completion of her tenure as secretary;
5, why clintonemail.com was not archival; and
6, details about Mr. Pagliano's role in creating and operating clintonemail.com.
...
THE COURT: What you've done, though,
you've taken all these depositions.
You have the IG report.
You have Mr. Comey's statement to the public, as well as under oath.
There's not a scintilla of any evidence that this e-mail system was created in a effort to thwart FOIA.
Is that a correct statement up to this point?
MR. BEKESHA: We don't believe that is a correct statement, Your Honor.
THE COURT: What evidence do you have?
MR. BEKESHA: The evidence we have --
and a lot of evidence has been provided.
The Court has the transcripts, the exhibits.
You know, very briefly, I think there are six facts that, to an extent, highlight where our focus is and why we need additional information.
THE DEFENDANT: Those are six areas?
...
THE COURT: -- and I'll give you an opportunity to focus on the six additional points.
The first area is the purpose for the clintonemail.com system.
In that regard, can you point to any credibility issues,
based upon Mrs. Clinton's current statements about the purpose for clintonemail?
Can you?
MR. BEKESHA: The -- the specific evidence we have shows that
no one was able to testify, under oath, why the system was created.
Both Ms. Abedin and Ms. Mills pointed to Mrs. Clinton's public statements.
Mrs. Clinton's public statements were for convenience.
She says she created the system because it was the most convenient for her.
THE COURT: Has Mrs. Clinton ever testified before any forum or in any case, under oath,
that the e-mail system was set up for any reason other than convenience?
MR. BEKESHA: Um, we don't know that, Your Honor.
That question was touched upon during the Benghazi select committee hearing.
It wasn't -- I don't believe it was directly asked, with a direct answer.
It may have been asked during the FBI interview of Mrs. Clinton.
THE COURT: Mr. Comey, indeed, testified under oath that
it was his understanding that the system was set up for Mrs. Clinton's convenience, did he not?
MR. BEKESHA: He said, on their best information, yes, Your Honor.
THE COURT: Right.
MR. BEKESHA: But, again --
THE COURT: And on the FBI's best information after, what, a year-long investigation?
Why isn't that sufficient?
MR. BEKESHA: They weren't asking the same questions we're asking.
The FBI was focused on -- or we assume the FBI was focused on classified information,
and her creation of the system, her use of the system,
as it relates to classified information.
And so the question wasn't about the Freedom of Information Act,
it wasn't about federal recordkeeping processes,
and the interplay of the system with those statutes and with those obligations.
THE COURT: I think I probably agree with you that the focus was not on
whether or not FOIA was violated,
but if, indeed, Mrs. Clinton's informal meeting with the FBI
[KH comment: "informal meeting" !!!!!
Is that what her questioning by the FBI was?
God forbid that the Democratic Party Queen
should be asked any question under oath
which might embarrass her, or hinder her becoming president.
God forbid anything should get in the way of the PC agenda.
Who cares about her compliance with the FOIA?
Certainly not the Democratic Party.
Can they deny that?
Not to mention her refusal to answer questions from the State Department IG.
Manifestly, to Dems, IG questions can be blown off
whenever they might hinder their agenda.
(The above from page 24 of the transcript.)]
convinced the FBI that the system was set up for her convenience, period,
why shouldn't that just carry the day on that issue?
...
MR. BEKESHA:
...
Prior to Mrs. Clinton becoming Secretary of State,
she never had FOIA obligations or federal recordkeeping obligations when she was a senator,
so that changed.
Her legal obligations changed.
And the question is:
When those legal obligations changed,
why did she not recognize those obligations
and then change her normal course of business
because of these new legal obligations that applied
when she became Secretary of State?
[A very good question.
Do Dems give a damn about it?
Of course not.
All they care about is their God-damned political correctness.]
...
The specific questions weren't put to her:
Now that you have these new obligations as Secretary of State,
obligations of FOIA and other federal recordkeeping statutes,
why did you keep using that same system?
[Page 26]
...
[Page 28]
THE COURT: Suppose you had an opportunity to ask her one question,
and that question was, "Why did you set it up?"
And she said,
"You know, I set it up, like I've said publicly, for my convenience.
And looking back -- and I don't know how many times I've said it --
it was a mistake, and I wish I could undo it,
and -- but that was my -- that's the reason why I set it up."
Would that be sufficient?
MR. BEKESHA: It wouldn't be, Your Honor, because I think --
THE COURT: Why not?
[KHarbaugh comment:
Sufficient for what?
The key point is:
If in fact there is evidence somewhere that she did not set it up for her convenience,
but rather to thwart FOIA inquiries,
would she dare making a statement under oath
that could later be shown to be perjury?
It seems clear to me that people under oath
feel stronger pressure to tell the truth
than when they are not.
Is that not so, Judge Sullivan?
Or is it not politically acceptable to dare to put Queen Hillary in a position
where she had to tell the truth, under penalty of perjury?]
...
2016-07-22-JW-judicial-watch-reports-on-2016-07-18-hearing
Judicial Watch Goes to Court for Hillary Clinton’s TestimonyJudicial Watch, 2016-07-22
Hillary Clinton sent three lawyers to federal court this past Monday in an effort to convince a judge that she shouldn’t have to provide testimony under oath to your Judicial Watch about why she set up and used a non-state.gov email account to conduct official business as secretary of state.
...
You can review the entire hearing transcript here.
2016-07-26-Politico-Judge-Contreras-faults-State-Department-as-lax
Judge faults State Department for 'lax' response to Clinton-linked FOIA surgeBy Josh Gerstein
Politico, 2016-07-26, 07/26/16 06:05 PM EDT
A federal judge is faulting the State Department for slacking off in its effort to process Freedom of Information Act requests after the diplomatic agency finished cranking out about 30,000 of Hillary Clinton's emails earlier this year.
In an order Monday, U.S. District Court Judge Rudolph Contreras largely rejected a State Department request for a 27-month extension to respond to conservative group Citizens United's demands for emails among four former State officials and individuals at the Clinton Foundation and a consulting firm close to the Clintons, Teneo.
The judge said State's own data showed a "marked drop" in resources devoted to FOIA processing at the agency in February, around the time the last batch of emails Clinton turned over to State were publicly released.
"As clearly shown in Defendant’s graph, Defendant has, since February 2016, reduced the amount of resources it is devoting to FOIA processing ... this reduction occurred even though Defendant’s number of FOIA cases in litigation and Defendant’s number of open FOIA requests have not experienced a similar decrease," Contreras wrote. "Because these facts imply that Defendant has been 'lax ... in meeting its [FOIA] obligations...with all available resources. ...,' the Court does not find a twenty-seven month extension of time appropriate."
Instead, the appointee of President Barack Obama gave State four months to finish processing about 12,000 pages of emails on a staggered schedule that will get about 10,000 pages of that to Citizens United before the November election in which Clinton will be the Democratic presidential nominee.
...
2016-07-29-Politico-Clinton-claims-someone-recommended-private-server-JW-wants-info-Kendall-tries-to-block
Clinton resists deposition to ask who urged using private serverThe democratic nominee's lawyers say her comment that someone 'recommended' unofficial system is no reason to put her under oath.
By Josh Gerstein
Politico, 2016-07-29 : 07/29/16 10:56 AM EDT
2016-07-29-Fox-Fitton-why-it-s-essential-that-hillary-testify-under-oath-about-her-private-email-servers
Judicial Watch president: Why it’s essential that Hillary testify under oath about her private email serversby Tom Fitton
Fox News column, 2016-07-29
Judicial Watch attorneys only seek to question Mrs. Clinton for no more than three hours as part of a discovery process that already saw the testimony of several witnesses, including her top State aides, Cheryl Mills and Huma Abedin.
But her legal team claimed in a court hearing before Judge Sullivan last week that questioning Secretary Clinton about her motivation for the use of the system would not yield any additional information other than that it was simply for her own “convenience.”
But it seems that Mrs. Clinton’s email claims change every time she’s asked about the issue.
...
If a State Department official,
such as the executive secretary or the legal advisor,
recommended that Secretary Clinton use a non-state.gov system for State Department business,
such evidence could demonstrate the State Department’s role in the decision.
Similarly, if someone who understood the secretary’s FOIA obligations
recommended Secretary Clinton’s use of the system,
such evidence could suggest that the motivation was more than just convenience.
Again,
Hillary Clinton has never previously suggested that
her decision to use the clintonemail.com system for official government business
was based on someone else’s recommendation.
We don’t know exactly what she told the FBI,
but nothing in FBI Director Comey’s public statement
and congressional testimony about the Clinton email issue
suggests that Clinton blamed someone else for her email woes.
And now, because of the new issue that she just raised in response to a softball question,
Hillary Clinton bolstered our argument that
her testimony under oath is essential to help the courts and the public
get complete answers about
Clinton’s illicit email practices during her time on the public dime at the State Department.
2016-08-10-JW-new-documents-show-top-clinton-aide-alerted-email-inquiry
New Documents Show Top Clinton Aide Alerted On Email InquiryJudicial Watch, 2016-08-10
...
“This is evidence that Cheryl Mills covered up Hillary Clinton’s email system.
She was aware of the FOIA request about Clinton’s email accounts
and allowed a response to go out that was a plain lie.
And you can bet if Cheryl Mills knew about this inquiry,
then Hillary Clinton did, too,”
said Judicial Watch President Tom Fitton.
“This is all the more reason for Mrs. Clinton to finally testify under oath about the key details of her email practices.”
2016-08-10-Politico-cheryl-mills-clinton-email-coverup
Email shows Mills was told of key Clinton FOIA requestBy Josh Gerstein
Politico, 2016-08-10 : 08/10/16 10:54 AM EDT
A newly released email message shows that Hillary Clinton's State Department chief of staff Cheryl Mills was alerted within days in December 2012 when a liberal watchdog group requested records describing all the email accounts used by Clinton.
Six months later, state sent a letter to Citizens for Responsibility and Ethics in Washington, saying that no records could be found. A State Department inspector general report issued in January described the episode as part of a pattern of "inaccurate and incomplete responses" to FOIA requests.
The incident is noteworthy because had the agency's response been more thorough, Clinton's exclusive use of a private email server as secretary of state could have been exposed years before it became public in March 2015.
The January State IG report found evidence that Mills was advised of the CREW FOIA request "and subsequently tasked staff to follow up." However, the newly disclosed emails — obtained by the conservative group Judicial Watch through an FOIA lawsuit — show the details of what Mills was told and just who was supposed to be involved in following up on the request. The IG shared many of those details with Senate Judiciary Committee Chairman Chuck Grassley, but they were not contained in the report.
An email chain shows that the CREW inquiry landed on a regular list of "significant" FOIA requests received by the State Department. A State spokesman, Brock Johnson, clipped out the portion about the Dec. 6, 2012 CREW request on Clinton's email use and forwarded it to Mills.
"FYI on the attached FOIA request from: ....Anne Weismann of Citizens for Responsibility and Ethics in Washington," Johnson wrote in a Dec. 11 message to Mills.
"Thanks," Mills wrote back about an hour-and-a-half later.
Another document released to Judicial Watch shows that about a month later, state officials organized a conference call to talk about CREW's request. Those to be included were two senior officials involved with State's FOIA operations, Sheryl Walter and Karen Finnegan, as well as a senior adviser and White House liaison for State, Heather Samuelson. It is unclear whether the call ever took place.
After leaving the State Department, Samuelson went on to screen the contents of the email messages Clinton kept on a private server during her tenure as secretary of state. Samuelson was tasked with separating personal messages from work-related ones and eventually testified before a closed-door session of the House Select Committee on Benghazi.
Asked about the CREW FOIA request during a deposition in May, Mills said she had no "specific recollection" of the issue before it came to the fore again in recent months.
Judicial Watch President Tom Fitton said Tuesday that the newly released emails show Mills was part of a cover-up.
“This is evidence that Cheryl Mills covered up Hillary Clinton’s email system. She was aware of the FOIA request about Clinton’s email accounts and allowed the response to go out that was a plain lie. And you can bet if Cheryl Mills knew about this inquiry, then Hillary Clinton did, too,” Fitton said. “This is all the more reason for Mrs. Clinton to finally testify under oath about the key details of her email practices.”
...
2016-08-19-Judge-Sullivan-Judge-Sullivan-order-Clinton-interrogatories-not-deposition
Order: JW-v-State-Order-Clinton-Depositionby Judge Emmet G. Sullivan
2016-08-19
[2 page PDF file]
...
FURTHER ORDERED
that, consistent with Rule 33 of the Federal Rules of Civil Procedure,
Judicial Watch may serve
interrogatories on Secretary Clinton by no later than October 14, 2016;
and it is FURTHER ORDERED
that, consistent with Rule 33 of the Federal Rules of Civil Procedure,
Secretary Clinton’s responses are due by no later than thirty days thereafter;
and it is FURTHER ORDERED
that Judicial Watch may not depose Mr. Finney;
and it is FURTHER ORDERED
that Judicial Watch may depose Mr. Bentel by no later than October 31, 2016;
and it is FURTHER ORDERED
that the parties shall submit a joint proposal
for further proceedings in this case by no later than November 30, 2016.
2016-08-19-Judge-Sullivan-memorandum-order-Clinton-interrogatories-not-deposition
Memorandum Opinion: Clinton interrogatories, not depositionby Judge Emmet G. Sullivan
2016-08-19
[28 page PDF file]
...
[page 2]
the motion is GRANTED IN PART and DENIED IN PART.
Specifically:
(1) Judicial Watch may serve interrogatories on Former Secretary of State Hillary Clinton;
(2) Judicial Watch may not depose Mr. Clarence Finney; and
(3) Judicial Watch may depose Mr. John Bentel.
...
[page 14]
The Court is persuaded that
Secretary Clinton’s testimony is necessary
to enable her to explain on the record
the purpose for the creation and operation of the clintonemail.com system for State Department business.
The Court recognizes that Secretary Clinton has stated publicly and to the FBI
that she used one email account for convenience.
See, e.g., Clinton Opp’n ECF No. 102-4 at 2
(“When Clinton got to the Department,
she opted to use her personal email account as a matter of convenience.”);
Clinton Opp’n ECF No. 102-3 at 4
(FBI Director Comey testifying that Secretary Clinton was asked
“why she set up the email system as she did in the first place”
and the answer was “convenience . . . that it was already there”).
However, Secretary Clinton has not answered questions relevant
to the limited scope of discovery authorized in this case --
the purpose for “the creation and operation of the clintonemail.com system for State Department business.” The scope of discovery authorized by the Court is limited,
but it is certainly broader than the single question
of why Secretary Clinton used her personal email account when she arrived at the State Department.
...
[page 16]
Because Secretary Clinton has not answered for the record and under oath
questions relevant to the limited scope of discovery authorized in this case --
the purpose for “the creation and operation of the clintonemail.com system for State Department business” --
and because her closest aides at the State Department
do not have personal knowledge of her purpose in using the system,
the Court will permit testimony from Secretary Clinton
consistent with the limited scope of discovery.
...
2016-08-23-NR-hillary-clinton-email-scandal-judicial-watch-questions
National Review: 15 Questions Hillary should answer under oath[Warning: This web page from the National Review contains seemingly perpetual scripts that stop the reading of the page.
Open it in a separate window to minimize the damage it can do.]
2016-08-23
2016-08-29-Klayman-claims-Judge-Sullivan-erred-in-rejecting-deposition-of-Clinton
Hillary's email cover-up compromised judges and DOJBy Larry Klayman
Renew America, 2016-08-29
...
Even the recent highly publicized ruling by Judge Emmet Sullivan –
not coincidentally a Clinton appointee to the federal bench –
to allow, after years and years, written questions to be posed to the Wicked Witch,
was a sham.
Contrary to my argument to the court,
since Freedom Watch had attempted to intervene in this case initially filed by Judicial Watch,
Sullivan delayed his ruling and then only permitted written questioning and written responses.
In this regard, any real lawyer knows that opposing lawyers –
in this case
the Wicked Witch's longtime fixer David Kendall of Williams and Connelly
(the firm not coincidentally represents the Washington Post,
which has been trying to destroy Trump at every turn) –
will draft and write the answers
and more likely make initial objections to slow things down further.
Thus, when Judicial Watch declares a victory, regrettably, nothing could be further from the truth.
Only spontaneous oral depositions questioning by an experienced trial lawyer
could potentially pin Hillary Clinton down and nail her to the wall.
In short, Judge Sullivan, trying to appear as if he is furthering justice,
gutted the process of prying crucial information from the horse's and principal felon's mouth.
...
2016-08-30-JW-judicial-watch-submits-email-questions-hillary-clinton-written-answers-oath-due-september-29
Judicial Watch Submits Email Questions to Hillary Clinton – Written Answers, Under Oath, Due September 29Judicial Watch, 2016-08-30
(Washington, DC) – Judicial Watch today announced it submitted questions to former Secretary of State Hillary Clinton concerning her email practices.
Clinton’s answers, under oath, are due on September 29.
On August 19, U.S. District Court Judge Emmet G. Sullivan granted Judicial Watch further discovery on the Clinton email matter and ordered Clinton to answer the questions “by no later than thirty days thereafter….”
Under federal court rules, Judicial Watch is limited to twenty-five questions.
The questions are:
- Describe the creation of the clintonemail.com system,
including who decided to create the system,
the date it was decided to create the system,
why it was created,
who set it up,
and when it became operational. - Describe the creation of your clintonemail.com email account,
including who decided to create it, when it was created, why it was created,
and, if you did not set up the account yourself, who set it up for you. - When did you decide to use a clintonemail.com email account
to conduct official State Department business
and whom did you consult in making this decision? - Identify all communications in which you participated
concerning or relating to your decision to use a clintonemail.com email account to conduct official State Department business
and, for each communication, identify the time, date, place, manner
(e.g., in person, in writing, by telephone, or by electronic or other means),
persons present or participating, and content of the communication. - In a 60 Minutes interview aired on July 24, 2016,
you stated that it was “recommended” you use a personal email account
to conduct official State Department business.
What recommendations were you given about using or not using a personal email account
to conduct official State Department business,
who made any such recommendations,
and when were any such recommendations made? - Were you ever advised, cautioned, or warned, was it ever suggested,
or did you ever participate in
any communication, conversation, or meeting in which it was discussed that
your use of a clintonemail.com email account to conduct official State Department business
conflicted with or violated federal recordkeeping laws.
For each instance in which you were so advised, cautioned or warned,
in which such a suggestion was made, or in which such a discussion took place,
identify the time, date, place, manner
(e.g., in person, in writing, by telephone, or by electronic or other means),
persons present or participating, and content of the advice, caution, warning, suggestion, or discussion. - Your campaign website states,
“When Clinton got to the Department, she opted to use her personal email account as a matter of convenience.”
What factors other than convenience did you consider in deciding to use a personal email account to conduct official State Department business?
Include in your answer whether you considered
federal records management and preservation requirements
and how email you used to conduct official State Department business
would be searched in response to FOIA requests. - After President Obama nominated you to be Secretary of State and during your tenure as secretary,
did you expect the State Department to receive FOIA requests for or concerning your email? - During your tenure as Secretary of State,
did you understand that email you sent or received in the course of conducting official State Department business
was subject to FOIA? - During your tenure as Secretary of State,
how did you manage and preserve emails in your clintonemail.com email account
sent or received in the course of conducting official State Department business,
and what, if anything, did you do to make those emails available to the Department for conducting searches in response to FOIA requests? - During your tenure as Secretary of State, what, if any, effort did you make to inform the State Department’s records management personnel (e.g., Clarence Finney or the Executive Secretariat’s Office of Correspondence and Records) about your use of a clintonemail.com email account to conduct official State Department business?
- During your tenure as Secretary of State, did State Department personnel ever request access to your clintonemail.com email account to search for email responsive to a FOIA request?
If so, identify the date access to your account was requested,
the person or persons requesting access,
and whether access was granted or denied. - At the time you decided to use your clintonemail.com email account
to conduct official State Department business,
or at any time thereafter during your tenure as Secretary of State,
did you consider how emails you sent to or received
from persons who did not have State Department email accounts (i.e., “state.gov” accounts)
would be maintained and preserved by the Department or searched by the Department in response to FOIA requests?
If so, what was your understanding about how such emails would be maintained, preserved, or searched by the Department in response to FOIA requests? - On March 6, 2009,
Assistant Secretary of State for Diplomatic Security Eric J. Boswell
wrote in an Information Memo to your Chief of Staff, Cheryl Mills,
that he “cannot stress too strongly, however, that
any unclassified BlackBerry is highly vulnerable in any setting
to remotely and covertly monitoring conversations, retrieving email, and exploiting calendars.”
A March 11, 2009 email states that,
in a management meeting with the assistant secretaries,
you approached Assistant Secretary Boswell and mentioned that
you had read the “IM” and that you “get it.”
Did you review the March 6, 2009 Information Memo, and, if so,
why did you continue using an unclassified BlackBerry
to access your clintonemail.com email account to conduct official State Department business?
Copies of the March 6, 2009 Information Memo and March 11, 2009 email
are attached as Exhibit A for your review. - In a November 13, 2010 email exchange with Huma Abedin about problems with your clintonemail.com email account,
you wrote to Ms. Abedin, in response to her suggestion that
you use a State Department email account or release your email address to the Department,
“Let’s get a separate address or device.”
Why did you continue using your clintonemail.com email account
to conduct official State Department business after agreeing on November 13, 2010
to “get a separate address or device?”
Include in your answer whether by “address” you meant an official State Department email account
(i.e., a “state.gov” account)
and by “device” you meant a State Department-issued BlackBerry.
A copy of the November 13, 2010 email exchange with Ms. Abedin is attached as Exhibit B for your review. - Email exchanges among your top aides and assistants in August 30, 2011 discuss providing you with a State Department-issued BlackBerry or State Department email address.
In the course of these discussions, State Department Executive Secretary Stephen Mull wrote,
“[W]e are working to provide the Secretary per her request a Department issued BlackBerry to replace her personal unit which is malfunctioning (possibly because of her personal email server is down).
We will prepare two versions for her to use – one with an operating State Department email account (which would mask her identity, but which would also be subject to FOIA requests).”
Similarly, John Bentel, the Director of Information and Records Management in the Executive Secretariat,
wrote, “You should be aware that any email would go through the Department’s infrastructure and [be] subject to FOIA searches.”
Did you request a State Department issued Blackberry or a State Department email account in or around August 2011, and, if so, why did you continue using your personal device and clintonemail.com email account to conduct official State Department business instead of replacing your device and account with a State Department-issued BlackBerry or a State Department email account? Include in your answer whether the fact that a State Department-issued BlackBerry or a State Department email address would be subject to FOIA affected your decision.
Copies of the email exchanges are attached as Exhibit C for your review. - In February 2011, Assistant Secretary Boswell sent you an Information Memo noting
“a dramatic increase since January 2011 in attempts . . .
to compromise the private home email accounts of senior Department officials.”
Assistant Secretary Boswell “urge[d] Department users to minimize the use of personal web-email for business.”
Did you review Assistant Secretary Boswell’s Information Memo in or after February 2011,
and, if so, why did you continue using your clintonemail.com email account to conduct official State Department business?
Include in your answer any steps you took to minimize use of your clintonemail.com email account after reviewing the memo.
A copy of Assistant Secretary Boswell’s February 2011 Information Memo is attached as Exhibit D for your review. - On June 28, 2011, you sent a message to all State Department personnel about securing personal email accounts.
In the message, you noted “recent targeting of personal email accounts by online adversaries”
and directed all personnel to “[a]void conducting official Department business from your personal email accounts.”
Why did you continue using your clintonemail.com email account to conduct official State Department business after June 28, 2011, when you were advising all State Department Personnel to avoid doing so?
A copy of the June 28, 2011 message is attached as Exhibit E for your review. - Were you ever advised, cautioned, or warned about hacking or attempted hacking of your clintonemail.com email account or the server that hosted your clintonemail.com account
and, if so, what did you do in response to the advice, caution, or warning? - When you were preparing to leave office, did you consider allowing the State Department access to your clintonemail.com email account to manage and preserve the official emails in your account and to search those emails in response to FOIA requests? If you considered allowing access to your email account, why did you decide against it? If you did not consider allowing access to your email account, why not?
- After you left office, did you believe you could alter, destroy, disclose, or use email you sent or received concerning official State Department business as you saw fit? If not, why not?
- In late 2014, the State Department asked that you make available to the Department copies of any federal records of which you were aware, “such as an email sent or received on a personal email account while serving as Secretary of State.” After you left office but before your attorneys reviewed the email in your clintonemail.com email account in response to the State Department’s request, did you alter, destroy, disclose, or use any of the email in the account or authorize or instruct that any email in the account be altered, destroyed, disclosed, or used? If so, describe any email that was altered, destroyed, disclosed, or used, when the alteration, destruction, disclosure, or use took place, and the circumstances under which the email was altered, destroyed, disclosed, or used?
A copy of a November 12, 2014 letter from Under Secretary of State for Management Patrick F. Kennedy regarding the State Department’s request is attached as Exhibit F for your review. - After your lawyers completed their review of the emails in your clintonemail.com email account in late 2014,
were the electronic versions of your emails preserved, deleted, or destroyed?
If they were deleted or destroyed, what tool or software was used to delete or destroy them,
who deleted or destroyed them, and was the deletion or destruction done at your direction? - During your October 22, 2015 appearance before the U.S. House of Representatives Select Committee on Benghazi,
you testified that 90 to 95 percent of your emails “were in the State’s system”
and “if they wanted to see them, they would certainly have been able to do so.”
Identify the basis for this statement, including all facts on which you relied in support of the statement, how and when you became aware of these facts, and, if you were made aware of these facts by or through another person, identify the person who made you aware of these facts. - Identify all communications between you and Brian Pagliano
concerning or relating to the management, preservation, deletion, or destruction of any emails in your clintonemail.com email account, including any instruction or direction to Mr. Pagliano about the management, preservation, deletion, or destruction of emails in your account when transferring the clintonemail.com email system to any alternate or replacement server.
For each communication, identify the time, date, place, manner (e.g., in person, in writing, by telephone, or by electronic or other means), persons present or participating, and content of the communication.
...
2016-09-19-Politico-Judge-Leon-bashes-State
Judge gives State Department tongue-lashing over Clinton classification training recordsBy Josh Gerstein
Politico, 2016-09-19 : 09/19/16 02:23 PM EDT , Updated 09/19/16 04:13 PM EDT
A federal judge lashed out at the State Department on Monday over what he charged was foot-dragging over Freedom of Information Act requests relating to Hillary Clinton's service as secretary of state.
“You have a client that, to say the least,
is not impressing the judges on this court, myself included. …
It is in your client’s interest to start being more obviously cooperative,”
U.S. District Court Judge Richard Leon warned Justice Department lawyers representing State during a hearing Monday.
“The State Department is at risk of being perceived as obstreperous.
[They] need to get with the program.”
The 10-minute hearing took place on a suit for records on how — and whether —
Clinton and her aides were trained to handle classified information.
State had proposed a deadline of Oct. 17 to produce about 450 unclassified documents relating to the training issue sought by the Daily Caller News Foundation.
However, Leon ordered the diplomatic agency to complete processing and disclosure of those records by Oct. 10.
He also said State must produce the records in three installments “of comparable size”
and can’t leave the bulk of the records to the last batch.
“We will do our best,” Justice Department attorney Jason Lee told Leon.
“Do better than your best. … You do it,” Leon shot back.
...
According to an FBI report, Clinton said
she could not recall receiving any training or briefing
on how to handle classified information.
However, when the extent of her use of a private email account as secretary was revealed last year, Clinton said:
“I’m certainly well-aware of the classification requirements.”
...
2016-09-23-JudicialWatch-Judge-Boasberg-decision-5600-of-15000-emails-were-work-related
State Says 5600 of 15,100 Emails Recovered by FBI WereGovernment Records, Not Personal as Claimed by Clinton
As Many As 350 Pages of Documents are Due to Judicial Watch by October 7, and As Many As 1,050 pages by November 4
Judicial Watch, 2016-09-23
The State Department admitted that it has 5,600 Clinton emails recovered by the FBI that were government documents and not personal emails as she claimed.
...
It is outrageous the State Department has had these new Clinton emails since late July, but has only released 5 records.
...
(The State Department claims a substantial number of the Clinton emails may be duplicative or near-duplicative of emails Hillary Clinton previously turned over to the State Department.)
2016-10-13-JW-judicial-watch-releases-new-hillary-clinton-email-answers-given-oath
Judicial Watch Releases New Hillary Clinton Email Answers Given under OathJudicial Watch, 2016-10-13
Judicial Watch today released received responses under oath from former Secretary of State Hillary Clinton concerning her email practices.
Judicial Watch submitted twenty-five questions on August 30 to Clinton
as ordered by U.S. District Court Judge Emmet G. Sullivan.
...
Below is text from the document filed with the court today:
[The full text of both JW's questions and HRC's answers follows.]
...
2016-10-13-Politico-JW-clinton-answers-written-questions-in-email-lawsuit
Clinton answers written questions under penalty of perjury in email lawsuitBy Josh Gerstein
Politico, 2016-10-13
Hillary Clinton submitted formal answers under penalty of perjury on Thursday
about her use of a private email server,
saying 20 times that she did not recall the requested information or related discussions,
while also asserting that no one ever warned her
that the practice could run afoul of laws on preserving federal records.
"Secretary Clinton states that
she does not recall being advised, cautioned, or warned,
she does not recall that it was ever suggested to her,
and she does not recall participating in any communication, conversation, or meeting
in which it was discussed that
her use of a clintonemail.com e-mail account to conduct official State Department business
conflicted with or violated federal recordkeeping laws,"
lawyers for Clinton wrote.
Clinton also said she could not recall ever being warned about
any hacking or attempted hacking of her private account or server.
...
"Secretary Clinton does not recall whether she had a specific expectation that
the State Department would receive FOIA requests for or concerning her e-mail.
[Really?
This from a woman who has made her claimed knowledge of Washington an important part of her argument to be elected?]
She understood that, because her practice was to e-mail State Department staff on their state.gov accounts, her email was being captured in the State Department’s recordkeeping systems....
[Wait a minute.
What about the emails that were between her and non-State Department individuals?
Are Dems claiming that such emails may not also be federal records?]
Secretary Clinton understood that e-mail she sent or received in the course of conducting official State Department business was subject to FOIA,"
the lawyers wrote.
...
Clinton declined to provide any answer to two of the 25 questions Judicial Watch asked.
Her lawyers said she was declining to answer a question about
the dangers of using a BlackBerry not approved for classified information
because the query went beyond the topics approved by the judge.
The former secretary also passed on a question about
why she testified that 90 to 95 percent of her emails were in State Department systems.
Her lawyers said the answer called for information protected by attorney-client privilege.
[Huh????
How can that information be "protected by attorney-client privilege"?
I don't get it.]
...
2016-10-13-Fox-FOIA-clinton-does-not-recall-ordering-destruction-emails-from-personal-server-in-testimony
Clinton 'does not recall' ordering destruction of emails from personal server in testimonyFox News, 2016-10-13
2016-11-03-JW-judicial-watch-asks-court-compel-hillary-clinton-email-answers
Judicial Watch Asks Court to Compel Hillary Clinton Email AnswersJudicial Watch, 2016-11-03
Judicial Watch today announced it filed a motion
to compel former Secretary of State Hillary Clinton
to answer three interrogatory questions she refused to answer under oath,
submitted to her by Judicial Watch under a court order issued by
U.S. District Court Judge Emmet G. Sullivan on August 19, 2016.
In its brief, Judicial Watch argues that Clinton
“failed to provide sufficient reasons for refusing to answer them,
and the limited reasons she provides do not warrant sustaining her objections.”
Hillary Clinton refused outright to answer questions about
the creation of her email system;
her decision to use the system despite warning from State Department officials;
and the basis for her claim that the State Department had “90-95%” of her emails.
In her responses sent to Judicial Watch and the court on October 13, 2016,
Clinton refused to answer three questions outright
and responded that she “does not recall” 20 times
concerning her non-government clintonemail.com email system.
She preceded her responses by eight “general objections” and two “objections to definitions.”
The words “object” or “objection” appear 84 times throughout the 23-page document submitted to the court and Judicial Watch.
...
2016-12-27-Politico-Gerstein-appeals-court-revives-suits-over-hillary-clinton-emails
Appeals court revives suits over Hillary Clinton emailsBy Josh Gerstein
Politico, 2016-12-27
A federal appeals court has revived a pair of lawsuits seeking to force the federal government to sue former Democratic presidential candidate Hillary Clinton in a quest to try to recover more emails from the private server she used while secretary of state.
A three-judge panel of the District of Columbia Circuit Court of Appeals ruled unanimously Tuesday that a lower court judge erred when he threw out the cases as moot after the State Department received tens of thousands of emails from Clinton and more from the FBI following the criminal investigation it conducted.
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posted by KHarbaugh at 08:14
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