Fitton: Judge Slams State/DOJ on Clinton Email Cover-Up

Attorney Cheryl Mills (L) listens as former Secretary of State and Democratic Presidential hopeful Hillary Clinton testifies before the House Select Committee on Benghazi on Capitol Hill in Washington, DC, October 22, 2015. Clinton took the stand Thursday to defend her role in responding to deadly attacks on the US …
SAUL LOEB/AFP/Getty Images

Judicial Watch just released the transcript of a major court hearing (held last week) in which U.S. District Court Judge Royce C. Lamberth granted significant new discovery to us on the Clinton email issue (Judicial Watch v. U.S. Department of State (No. 1:14-cv-01242)).

During the hearing, Judge Lamberth specifically raised concerns about a Clinton email cache recently discussed in a letter to Senator Charles Grassley (R-IA) and wants us to “shake this tree” on this issue.

[J]ust last week, the Senate’s – Senate Finance and Homeland Security Committees released documents revealing that Clinton IT aide Paul Combetta copied all but four of the missing emails to a Gmail account that does not appear to have ever been reconstructed and searched. The court thinks Judicial Watch ought to shake this tree.

Judge Lamberth also criticized the State Department’s handling and production of Clinton’s emails in this case stating, “There is no FOIA [Freedom of Information Act] exemption for political expedience, nor is there one for bureaucratic incompetence.”

In the beginning of their oral arguments, lawyers for the State Department wrongfully stated that we could no longer continue their discovery. The court stopped their arguments stone cold:

STATE DEPARTMENT: … it is, of course, Judicial Watch’s burden to explain to Your Honor why there has been good cause to reopen discovery now that discovery has closed in this case.

THE COURT: Well, I didn’t close discovery. So your premise is wrong.

STATE DEPARTMENT: Fair enough, Your Honor. Whether you want to call it closed or not, it is still —

THE COURT: I didn’t close it. I said I would have a status after they took this initial discovery, and that’s what I’m doing today. I didn’t close discovery.

STATE DEPARTMENT: That’s right, Your Honor, but it is still Judicial Watch’s —

THE COURT: So they don’t need any good cause —

STATE DEPARTMENT: Whether

THE COURT: — Today the good cause continues from whether or not State was acting in good faith, and I’ll tell you everything they’ve discovered in this period raises serious questions about what the hell the State Department’s doing here.

The Court also rejected DOJ and State’s efforts to derail further Judicial Watch discovery. Judge Lamberth called their arguments “preposterous” and cited a prior Judicial Watch FOIA case in which he ordered U.S. Marshals to seize records from a Clinton administration official in a separate Judicial Watch lawsuit:

I’ll tell you another thing. I didn’t like in your brief. I’ll tell you right now upfront. You put in your brief the most preposterous thing, I thought, in your brief was the very idea that — let me read you the line. Competitive Enterprise Institute was a case of first impression and that some District Judge bought that and the Court of Appeals reversed it. Now, that wasn’t a case of first impression at all. The first impression with me was a case I had involving Ron Brown and the travel records of whether or not, in the Commerce Department — and it was a Judicial Watch case — whether or not the Commerce Department was selling seats on trade missions, and I had a Deputy Under Secretary of Commerce who took a box of records home and then they gave a no-records response and, in the course of that, I found out he had taken the records home and they said they had no records.  I sent marshals over and they got the box at his house, and I ordered them – the marshals — to seize the records. That was the first case.

The judge also stated that the government has mishandled this case and the discovery of information including former Secretary Clinton’s emails so poorly that we may have the ability to prove the they acted in “bad faith,” which would entitle Judicial Watch to attorney’s fees.

Judge Lamberth detailed how the State Department “spent three months from November 2014 trying to make this case disappear,” and that after discovering the State Department’s actions and omissions, “Now we know more, but we have even more questions than answers. So I won’t hold it against Judicial Watch for expanding their initial discovery request now.”

Judge Lamberth stated his goal was to restore the public’s faith in their government:

When I authorized discovery back in December, I described my goal: to rule out egregious government misconduct and vindicate the public’s faith in the State and Justice Departments. That’s still my goal today. This isn’t a case I relish, but it’s the case before me now, and it’s a case of the government’s making.”

The court granted us seven additional depositions, three interrogatories and four document requests related to former Secretary of State Hillary Clinton’s use of a private email server. Hillary Clinton and her former top aide and current lawyer Cheryl Mills were given 30 days to oppose being deposed by Judicial Watch.

Below is the court’s ruling from the bench granting us significant new discovery:

First, let me clarify the Government’s misunderstanding. We’re not reopening discovery here. Discovery never closed. Back in January, I said, quote, The Government will — the Court will hold a post-discovery hearing to ascertain the adequacy of State’s searches; to determine if Judicial Watch needs to depose additional witnesses, including Hillary Clinton or her former Chief of Staff, Cheryl Mills; and to schedule dispositive motions, unquote. So June 19th was a checkpoint, not a finish line. And whether Judicial Watch previously knew about some of the other individuals it now wants to depose is beside the point. They tailored their initial discovery request to the facts and questions then before the Court.

Now we know more, but we have even more questions than answers. So I won’t hold it against Judicial Watch for expanding their initial discovery request now.

Remember what got us started down this path in the first place. In late 2014 and early 2015, at least some State Department officials knew Secretary Clinton’s emails were missing; they knew Judicial Watch didn’t know that; they knew the Court didn’t know that, but the Department pressed forward trying to settle this case. So, I authorized discovery into whether these settlement efforts amounted to bad faith.

Now, the Government says, quote, there is simply no factual basis to justify any further discovery on that subject, unquote, but Judicial Watch’s most recent submission lays out the following:

It appears that in the middle of 2013, State’s Office of Information and Program Services launched an inquiry into Clinton’s email practices.

It appears that in August 2013, that office directed FOIA responders to stop issuing, quote, no record located, unquote, responses to FOIA requests for Clinton’s emails.

It appears that by the summer of 2014, State knew a large volume of Clinton’s emails had never been searched, potentially violating FOIA and record management obligations. It turns out State had a standing meeting every Wednesday afternoon during the summer of 2014 to discuss Clinton-related FOIA inquiries. Attendees included Secretary Kerry’s Chief of Staff; his Deputy Chief of Staff; the Deputy Secretary for Management and Resources; the Assistant Secretary for Legislative Affairs; several attorneys; and Patrick Kennedy, the Under Secretary for Management. That’s every Wednesday afternoon.

It appears that in August 2014, State began planning for media investigations into Clinton’s emails.

It appears that in November 2014, State told Judicial Watch it performed a legally adequate search and tried to settle. In fact, I think, in my original opinion on authorizing discovery, I noted that State had given a draft Vaughn index to Judicial Watch at that time. I don’t think I have ever seen that, but I think it was given to I think, in my opinion, I said that it had been given to Judicial Watch. Indeed, State spent the next three months from November 2014 trying to make this case disappear. They kept doing it even after they came into the possession of Clinton’s emails.

Judicial Watch wants to follow up with the State attorney assigned to this FOIA request to participate in settlement discussions and negotiations. That seems reasonable to me.

[Judicial Watch] wants to ask the Department official responsible for overseeing FOIA requests more about why he directed his office to stop using “no record located” responses to FOIA requests relating to Clinton’s emails if that, in fact, is what happened. I’m curious, too.

They want to ask the current Department FOIA overseer more about what went on in those weekly 2014 meetings. I look forward to hearing what he says.

They want to ask the Justice Department attorney who led the settlement negotiations to divulge when he learned Clinton’s emails were missing. He must answer.

Another reason we had this initial discovery was to see if Secretary Clinton intentionally attempted to evade FOIA by using a private email. When Judicial Watch deposed the Deputy Director who oversaw State’s FOIA responses, he recalled an instance when in — his office found an email from Clinton’s private account and the Public Affairs team said, Remember, you’re not supposed to use that email. How can you spin that?

I agree with Judicial Watch that it’s worth deposing the State Department records officer who personally reviewed archiving procedures with Secretary Clinton and her departing staff to see what they discussed.

I also think Judicial Watch is justified to seek more information about how Secretary Clinton ultimately determined which emails were public records and which were private.

The final reason I authorized discovery was to determine whether State adequately searched for records responsive to Judicial Watch’s FOIA request. Now the Government seeks to duck behind an unpublished D.C. Circuit opinion from 2018 holding the Government has already taken every reasonable action under the Federal Records Act to retrieve Clinton’s 30,000 missing emails and no imaginable enforcement action could recover any more.

But just last week, the Senate’s — Senate Finance and Homeland Security Committees released documents revealing Clinton IT aide Paul Combetta copied all but four of the missing emails to a Gmail account that does not appear to have ever been reconstructed and searched. The Court thinks Judicial Watch ought to shake this tree.

And the Court agrees with Judicial Watch that it should talk to three never-before-deposed State officials who raised concerns about Clinton’s private email use all the way back to 2009.

There is no FOIA exemption for political expedience, nor is there one for bureaucratic incompetence.

The Government also tries to say this Court [sic] is — no longer — or no longer presents a live controversy. This is wrong. Judicial Watch can still obtain fees if they prove agency bad faith.

I’ll close with this. When I authorized discovery back in December, I described my goal: to rule out egregious government misconduct and vindicate the public’s faith in the State and Justice Departments. That’s still my goal today. This isn’t a case I relish, but it’s the case before me now, and it’s a case of the government’s making.

The Court authorizes Judicial Watch to take the additional discovery described in its status report, except for deposing Secretary Clinton and her Chief of Staff, Cheryl Mills. I will give their attorneys 30 days to file any additional opposition to their depositions and 10 days thereafter for Judicial Watch to file any reply, and I’ll issue a separate ruling on that. Otherwise, the discovery should go forward and all of it should be completed by December 13th. A status will be held on December 19th at 10:00 a.m. to set a further schedule in this case.

We uncovered new information about the Clinton email scandal that a federal court agrees requires more answers. We share the court’s annoyance with DOJ lawyers who continue to defend the indefensible. It is beyond disturbing that the State and Justice Departments would continue to try to protect Hillary Clinton and cover up her email scandal. President Trump should order the agencies to cooperate in uncovering the truth.

The new discovery comes in our July 2014 FOIA lawsuit filed after the U.S. Department of State failed to respond to a May 13, 2014, request for:

  • Copies of any updates and/or talking points given to Ambassador Rice by the White House or any federal agency concerning, regarding, or related to the September 11, 2012 attack on the U.S. consulate in Benghazi, Libya.
  • Any and all records or communications concerning, regarding, or relating to talking points or updates on the Benghazi attack given to Ambassador Rice by the White House or any federal agency.

On December 6, 2018, Judge Lamberth ordered Obama administration senior State Department officials, lawyers and Clinton aides to be deposed or answer written questions under oath. The court ruled that the Clinton email system was “one of the gravest modern offenses to government transparency.”

The court ordered discovery into three specific areas: whether Secretary Clinton’s use of a private email server was intended to stymie FOIA; whether the State Department’s intent to settle this case in late 2014 and early 2015 amounted to bad faith; and whether the State Department has adequately searched for records responsive to Judicial Watch’s request.

Our FOIA lawsuit led directly to the disclosure of the Clinton email system in 2015.

Our discovery over the last several months found many more details about the scope of the Clinton email scandal and cover-up:

  • John Hackett, former Director of Information Programs and Services (IPS) testified under oath that he had raised concerns that former Secretary of State Hillary Clinton’s staff may have “culled out 30,000” of the secretary’s “personal” emails without following strict National Archives standards. He also revealed that he believed there was interference with the formal FOIA review process related to the classification of Clinton’s Benghazi-related emails.
  • Heather Samuelson, Clinton’s White House liaison at the State Department, and later Clinton’s personal lawyer, admitted under oath that she was granted immunity by the Department of Justice in June 2016.
  • Justin Cooper, former aide to President Bill Clinton and Clinton Foundation employee who registered the domain name of the unsecure com server that Clinton used while serving as Secretary of State, testified he worked with Huma Abedin, Clinton’s deputy chief of staff, to create the non-government email system.
  • In the interrogatory responses of E.W. (Bill) Priestap, assistant director of the FBI Counterintelligence Division, he stated that the agency found Clinton email records in the Obama White House, specifically, the Executive Office of the President.
  • Jacob “Jake” Sullivan, Clinton’s senior advisor and deputy chief of staff when she was secretary of state, testified that both he and Clinton used her unsecure non-government email system to conduct official State Department business.
  • Eric Boswell, former assistant secretary of state for diplomatic security during Clinton’s tenure as secretary of state, testified that Clinton was warned twice against using unsecure BlackBerry’s and personal emails to transmit classified material.

We are, of course, grateful that a federal judge sees through the charade perpetrated by these high-ranking officials. I’ll be sure to update as the case continues to progress.

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