Hillary Clinton sent three lawyers to federal court this past Monday in an effort to convince a judge that she should not have to provide testimony under oath to Judicial Watch about why she set up and used a non-state.gov email account to conduct official business as secretary of state.
As you will recall, U.S. District Court Judge Emmet G. Sullivan had granted “discovery” to Judicial Watch into former Secretary of State Hillary Clinton’s email system. Sullivan had noted at the time that “based on information learned during discovery, the deposition of Mrs. Clinton may be necessary.” The discovery arises in a Judicial Watch Freedom of Information Act (FOIA) lawsuit that seeks records about the controversial employment status of Huma Abedin, former deputy chief of staff to Clinton. The lawsuit, which seeks records regarding the authorization for Abedin to engage in outside employment while employed by the Department of State, was reopened because of revelations about the clintonemail.com system (Judicial Watch v. U.S. Department of State (No. 1:13-cv-01363)).
Judicial Watch sought Hillary Clinton’s testimony a few weeks ago after my attorney colleagues deposed seven former Clinton top aides and current State Department officials, including top Clinton aides Cheryl Mills and Huma Abedin. Judicial Watch’s legal team also took the testimony of IT official Brian Pagliano, who asserted his Fifth Amendment right not to testify during the Judicial Watch deposition.
Judge Sullivan ordered Monday’s hearing after requiring the State Department and Hillary Clinton’s lawyers to respond to our request for permission to depose 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.
In the oral arguments before Judge Sullivan, Judicial Watch attorney Michael Bekesha repeatedly put the issue in perspective:
Prior to Mrs. Clinton becoming Secretary of State, she never had FOIA obligations or federal record-keeping 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?
The question is: Why did she not change using the system?
Mr. [Steven D.] Mull [Executive Secretary of the State Department] … reminded Ms. Abedin, her deputy chief of staff, that such e-mail would be subject to FOIA. The head of the IRM [Information Resource Management] unit, Mr. Bentel, around the same hour, identified to other staff that it would be subject to FOIA. And then for some reason, Mrs. Clinton decided not to use a State Department e-mail account and a State Department BlackBerry.
And the question hasn’t been answered: Why did she reverse course on her decision?
Why – at one point we have the email where Mrs. Clinton said – she said, “This isn’t a good system.” And then later on she said, “I don’t want the personal being accessible.” And the questions: What does that mean? Did she decide not to use a State Department BlackBerry, a State Department email account, because she didn’t want the personal accessible?
Now, you could read it one way, that she didn’t want personal emails accessible, but the question then is, as Mrs. Clinton would know, personal emails are not subject to FOIA requests, so her – even if she used the State Department system, she would not – her personal e-mail would not be turned over to the public, and so that doesn’t really seem to be a concern.
Another way you could read that e-mail is that she didn’t want the personal system to be accessible. And so the question then is: What was she hiding on the system?
Previous to last week’s hearing, we submitted reply briefs (available here and here) to Judge Sullivan in response to the State Department and Secretary Clinton’s oppositions to our request for permission to depose Clinton and two other witnesses.
In our briefs we argued, among other things, that:
Secretary Clinton’s deposition is necessary to complete the record. Although certain information has become available through investigations by the Benghazi Select Committee, the FBI, and the State Department Inspector General, as well as through Plaintiff’s narrowly tailored discovery to date, significant gaps in the evidence remain. Only Secretary Clinton can fill these gaps, and she does not argue otherwise.
To [Judicial Watch’s] knowledge, Secretary Clinton has never testified under oath why she created and used the clintonemail.com system to conduct official government business. Her only public statements on the issue are unsworn.
Judge Sullivan began the hearing with a statement about the Freedom of Information Act:
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.”
Hillary Clinton’s lawyer David Kendall tried to convince the court that his client would have nothing new to say and that, evidently, we should be satisfied with the FBI’s secret interview and the incompetent questioning of Clinton by Congress. Incredibly, Mr. Kendall referred to Clinton campaign’s website as having the necessary information on her email system.
Review the entire hearing transcript here.
After the nearly three-hour hearing, Judge Sullivan announced he would rule on the issues as soon as possible. Stay tuned.