Fitton: Judicial Watch Asks for Full Court Review on Clinton Testimony

Former US Secretary of State, Hillary Clinton, attends a news conference for the film 'Hillary' during the 70th International Film Festival Berlin, Berlinale in Berlin, Germany, Tuesday, Feb. 25, 2020. (AP Photo/Markus Schreiber)
Markus Schreiber/AP Photo

We still intend to interview Hillary Clinton.

We have filed a petition for panel rehearing and rehearing en banc in the United States Court of Appeals for the District of Columbia concerning the deposition of former Secretary of State Hillary Clinton in a Freedom of Information Act (FOIA) lawsuit relevant to her government emails (In re Hillary Rodham Clinton and Cheryl Mills (No. 20-5056)). 

We filed the petition after an August 31, 2020, opinion by the Court of Appeals granting Clinton’s petition for mandamus relief, allowing her to avoid giving sworn testimony in our lawsuit seeking records about the Obama administration’s public statements regarding the 2012 terrorist attack on the U.S. consulate in Benghazi. The lawsuit led directly to the disclosure of Clinton’s email use (Judicial Watch v. U.S. Department of State (No. 1:14-cv-01242)).

We argue that the appeals panel granted Clinton extraordinary relief that was specifically denied to General Flynn by the full appeals court. The full appeals court, in denying General Flynn mandamus relief, ruled that he could pursue alternative remedies for relief, such as an appeal of any adverse decision by the lower court at the end of his criminal case. The panel treated Clinton differently: 

The panel’s failure to consider Clinton’s available remedies when it labeled her a party-litigant has, in effect, extended more rights to Clinton than to ordinary parties, including Plaintiff, the Government, and most recently Flynn. Rehearing and rehearing en banc is necessary for this additional reason. 

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It also is at odds with this Court’s recent en banc decision denying mandamus to U.S. Army Lieutenant General Michael T. Flynn because an “adequate alternative remedy exists.”  Rehearing and rehearing en banc is necessary “to secure and maintain uniformity of the court’s decisions.”  

We further argue that the ruling undermines FOIA by ignoring Supreme Court and other precedent:

A district court may order limited discovery in FOIA cases where there is evidence that an agency acted in bad faith. A district court also has “broad discretion to manage the scope of discovery” in FOIA cases. The panel nonetheless found that discovery in FOIA is limited to “the actions of the individuals who conducted the search” for records responsive to a request. The panel’s finding is a radical departure from what Congress intended, the Supreme Court’s interpretation of FOIA, and this Court’s precedent. In effect, it eliminates any discovery into the actions of agency officials or employees other than FOIA officers, walling off from any inquiry officials or employees who may be less than honest with FOIA officers or who might seek to conceal agency records from FOIA officers to prevent their disclosure to the public, among other matters plainly relevant to an agency’s good faith in responding to FOIA requests.

We highlight the urgency of the issue by pointing to renewed efforts by the State Department and Justice Department to use the appellate court’s decision to try to shut down all other discovery into Clinton’s email use.

The decision to give Hillary Clinton special protection from having to testify about her emails undermines the rule of law and would eviscerate FOIA. The court should explain to the American people why it would protect Hillary Clinton while denying similar relief to General Flynn.

Here’s the background.

On December 6, 2018, U.S. District Court Judge Royce Lamberth ordered that former United States Ambassador to the United Nations Susan Rice and senior Obama State Department officials, lawyers and Clinton aides be deposed or answer written questions under oath in the lawsuit. Judge Lamberth called Clinton’s email system “one of the gravest modern offenses to government transparency.”

In May 2019, Rice admitted under oath that she emailed Clinton on Clinton’s personal email account and “in rare instances” received emails related to U.S. government business on her own personal email account. Rice claimed she “took steps” to ensure that official emails were “also on her government email account” but did not identify those steps. Rice’s 2019 sworn answers are available here.

On March 2, 2020, Judge Lamberth ordered Judicial Watch us depose Clinton and Mills, under oath, regarding Clinton’s email system and the existence of records about the Benghazi attack. Clinton and Mills filed an emergency mandamus appeal to avoid testifying.

We’re not giving up on this.

Voter Registration in 353 Counties in 29 States Exceeds 100%

In 2018 the Supreme Court upheld a voter-roll cleanup program that resulted from our settlement of a federal lawsuit with Ohio. California settled a NVRA lawsuit with us and last year began the process of removing up to 1.6 million inactive names from Los Angeles County’s voter rolls. Kentucky also began a cleanup of hundreds of thousands of old registrations last year after it entered into a consent decree to end another Judicial Watch lawsuit. In September 2020, we sued Illinois for refusing to disclose voter roll data in violation of Federal law.

So we’ve been busy and effective. Unfortunately, the problem persists.

Our newly released study reveals that 353 U.S. counties had 1.8 million more registered voters than eligible voting-age citizens. In other words, the registration rates of those counties exceeded 100% of eligible voters. The study finds eight states showing statewide registration rates exceeding 100%: Alaska, Colorado, Maine, Maryland, Michigan, New Jersey, Rhode Island, and Vermont.

The September 2020 study collected the most recent registration data posted online by the states themselves. This data was then compared to the Census Bureau’s most recent five-year population estimates, gathered by the American Community Survey (ACS) from 2014 through 2018. ACS surveys are sent to 3.5 million addresses each month, and its five-year estimates are considered to be the most reliable estimates outside of the decennial census. 

Our latest study is necessarily limited to 37 states that post regular updates to their registration data. Certain state voter registration lists may also be even larger than reported, because they may have excluded “inactive voters” from their data. Inactive voters, who may have moved elsewhere, are still registered voters and may show up and vote on election day and/or request mail-in ballots. 

We rely on our voter registration studies to warn states that they are failing to comply with the requirements of the National Voter Registration Act of 1993, which requires states to make reasonable efforts to clean their voter rolls. We can and have sued to enforce compliance with federal law.

Earlier this month, we sued Colorado over its failure to comply with the National Voter Registration Act. In our new study, 42 Colorado counties—or two thirds of the state’s counties—had registration rates exceeding 100%. Particular data from the state confirms this general picture. As the complaint explains, a month-by-month comparison of the ACS’s five-year survey period with Colorado’s own registration numbers for the exact same months shows that large proportions of Colorado’s counties have registration rates exceeding 100%. Earlier this year, we sued Pennsylvania and North Carolina for failing to make reasonable efforts to remove ineligible voters from their rolls as required by federal law. The lawsuits allege that the two states have nearly 2 million inactive names on their voter registration rolls. We also sued Illinois for refusing to disclose voter roll data in violation of Federal law. 

Our study updates the results of a similar study from last year. In August 2019 we analyzed registration data that states reported to the federal Election Assistance Commission (EAC) in response to a survey conducted every two years on how states maintain their voter rolls. That registration data was compared to the then-most-recent ACS five-year survey from 2013 through 2017. The study showed that 378 U.S. counties had registration rates exceeding 100%. 

The new study shows 1.8 million excess, or ‘ghost’ voters in 353 counties across 29 states. The data highlights the recklessness of mailing blindly ballots and ballot applications to voter registration lists. Dirty voting rolls can mean dirty elections.

STATES AND COUNTIES WITH REGISTRATION RATES EXCEEDING 100%

(* means no separate reporting of inactive registrations)

Alabama: Lowndes County (130%); Macon County (114%); Wilcox (113%); Perry County (111%); Madison County (109%); Hale County (108%); Marengo County (108%); Baldwin (108%); Greene County (107%); Washington County (106%); Dallas County (106%); Choctaw County (105%); Conecuh County (105%); Randolph County (104%); Shelby County (104%); Lamar County (103%); Autauga County (103%); Clarke County (103%); Henry County (103%); Monroe County (102%); Colbert County (101%); Jefferson County (101%); Lee County (100%); Houston County (100%); Crenshaw County (100%)

*Alaska: Statewide (111%)

Arizona: Santa Cruz County (107%); Apache County (106%)

*Arkansas: Newton County (103%)

ColoradoStatewide (102%); San Juan County (158%); Dolores County (127%); Jackson County (125%); Mineral County (119%); Ouray County (119%); Phillips County (116%); Douglas County (116%); Broomfield County (115%); Elbert County (113%); Custer County (112%); Gilpin County (111%); Park County (111%); Archuleta County (111%); Cheyenne County (111%); Clear Creek County (110%); Teller County (108%); Grand County (107%); La Plata County (106%); Summit County (106%); Baca County (106%); Pitkin County (106%); San Miguel County (106%); Routt County (106%); Hinsdale County (105%); Garfield County (105%); Gunnison County (105%); Sedgwick County (104%); Eagle County (104%); Larimer County (104%); Weld County (104%); Boulder County (103%); Costilla County (103%); Chaffee County (103%); Kiowa County (103%); Denver County (103%); Huerfano County (102%); Montezuma County (102%); Moffat County (102%); Arapahoe County (102%); Jefferson County (101%); Las Animas County (101%); Mesa County (100%.

*Florida: St. Johns County (112%); Nassau County (109%); Walton County (108%); Santa Rosa County (108%); Flagler County (104%); Clay County (103%); Indian River County (101%); Osceola County (100%)

*Georgia: Bryan County (118%); Forsyth County (114%); Dawson County (113%); Oconee County (111%); Fayette County (111%); Fulton County (109%); Cherokee County (109%); Jackson County (107%); Henry County (106%); Lee County (106%); Morgan County (105%); Clayton County (105%); DeKalb County (105%); Gwinnett County (104%); Greene County (104%); Cobb County (104%); Effingham County (103%); Walton County (102%); Rockdale County (102%); Barrow County (101%); Douglas County (101%); Newton County (100%); Hall County (100%)

*Indiana: Hamilton County (113%); Boone County (112%); Clark County (105%); Floyd County (103%); Hancock County (103%); Ohio County (102%); Hendricks County (102%); Lake County (101%); Warrick County (100%); Dearborn County (100%)

Iowa: Dallas County (115%); Johnson County (104%); Lyon County (103%); Dickinson County (103%); Scott County (102%); Madison County (101%); Warren County (100%)

*Kansas: Johnson County (105%)

Maine: Statewide (101%); Cumberland County (110%); Sagadahoc County (107%); Hancock County (105%); Lincoln County (104%); Waldo County (102%); York County (100%)

Maryland: Statewide (102%); Montgomery County (113%); Howard County (111%); Frederick County (110%); Charles County (108%); Prince George’s County (106%); Queen Anne’s County (104%); Calvert County (104%); Harford County (104%); Worcester County (103%); Carroll County (103%); Anne Arundel County (102%); Talbot County (100%)

*Massachusetts: Dukes County (120%); Nantucket County (115%); Barnstable County (103%)

*Michigan: Statewide (105%); Leelanau County (119%); Otsego County (118%); Antrim County (116%); Kalkaska County (115%); Emmet County (114%); Berrien County (114%); Keweenaw County (114%); Benzie County (113%); Washtenaw County (113%); Mackinac County (112%); Dickinson County (112%); Roscommon County (112%); Charlevoix County (112%); Grand Traverse County (111%); Oakland County (110%); Iron County (110%); Monroe County (109%); Genesee County (109%); Ontonagon County (109%); Gogebic County (109%); Livingston County (109%); Alcona County (108%); Cass County (108%); Allegan County (108%); Oceana County (107%); Midland County (107%); Kent County (107%); Montmorency County (107%); Van Buren County (107%); Wayne County (107%); Schoolcraft County (107%); Mason County (107%); Oscoda County (107%); Iosco County (107%); Wexford County (106%); Presque Isle County (106%); Delta County (106%); Alpena County (106%); St Clair County (106%); Cheboygan County (105%); Newaygo County (105%); Barry County (105%); Gladwin County (105%); Menominee County (105%); Crawford County (105%); Muskegon County (105%); Kalamazoo County (104%); St. Joseph County (104%); Ottawa County (103%); Clinton County (103%); Saginaw County (103%); Manistee County (103%); Lapeer County (103%); Calhoun County (103%); Ogemaw County (103%); Macomb County (103%); Missaukee County (102%); Eaton County (102%); Shiawassee County (102%); Huron County (102%); Lenawee County (101%); Branch County (101%); Osceola County (101%); Clare County (100%); Arenac County (100%); Bay County (100%); Lake County (100%)

*Missouri: St. Louis County (102%)

*Montana: Petroleum County (113%); Gallatin County (103%); Park County (103%); Madison County (102%); Broadwater County (102%)

*Nebraska: Arthur County (108%); Loup County (103%); Keya Paha County (102%); Banner County (100%); McPherson County (100%)

Nevada: Storey County (108%); Douglas County (105%); Nye County (101%)

*New Jersey: Statewide (102%); Somerset County (110%); Hunterdon County (108%); Morris County (107%); Essex County (106%); Monmouth County (104%); Bergen County (103%); Middlesex County (103%); Union County (103%); Camden County (102%); Warren County (102%); Atlantic County (102%); Sussex County (101%); Salem County (101%); Hudson County (100%); Gloucester County (100%)

*New Mexico: Harding County (177%); Los Alamos County (110%)

New York: Hamilton County (118%); Nassau County (109%); New York (103%); Rockland County (101%); Suffolk County (100%)

*Oregon: Sherman County (107%); Crook County (107%); Deschutes County (105%); Wallowa County (103%); Hood River County (103%); Columbia County (102%); Linn County (101%); Polk County (100%); Tillamook County (100%)

Rhode Island: Statewide (101%); Bristol County (104%); Washington County (103%); Providence County (101%)

*South Carolina: Jasper County (103%)

South Dakota: Hanson County (171%); Union County (120%); Jones County (116%); Sully County (115%); Lincoln County (113%); Custer County (110%); Fall River County (108%); Pennington County (106%); Harding County (105%); Minnehaha County (104%); Potter County (104%); Campbell County (103%); McPherson County (101%); Hamlin County (101%); Stanley County (101%); Lake County (100%); Perkins County (100%)

Tennessee: Williamson County (110%); Moore County (101%); Polk County (101%)

Texas: Loving County (187%); Presidio County (149%); McMullen County (147%); Brooks County (117%); Roberts County (116%); Sterling County (115%); Zapata County (115%); Maverick County (112%); Starr County (110%); King County (110%); Chambers County (109%); Irion County (108%); Jim Hogg County (107%); Polk County (107%); Comal County (106%); Oldham County (104%); Culberson County (104%); Kendall County (103%); Dimmit County (103%); Rockwall County (102%); Motley County (102%); Parker County (102%); Hudspeth County (101%); Travis County (101%); Fort Bend County (101%); Kent County (101%); Webb County (101%); Mason County (101%); Crockett County (101%); Waller County (100%); Gillespie County (100%); Duval County (100%); Brewster County (100%)

Vermont: Statewide (100%)

Virginia: Loudoun County (116%); Falls Church City (114%); Fairfax City (109%); Goochland County (108%); Arlington County (106%); Fairfax County (106%); Prince William County (105%); James City County (105%); Alexandria City (105%); Fauquier County (105%); Isle of Wight County (104%); Chesterfield County (104%); Surry County (103%); Hanover County (103%); New Kent County (103%); Clarke County (103%); King William County (102%); Spotsylvania County (102%); Rappahannock County (102%); Albemarle County (101%); Stafford County (101%); Northampton County (101%); Poquoson City (100%); Frederick County (100%)

Washington: Garfield County (119%); Pend Oreille County (112%); Jefferson County (111%); San Juan County (108%); Wahkiakum County (108%); Stevens County (103%); Pacific County (103%); Clark County (102%); Island County (102%); Klickitat County (102%); Thurston County (102%); Lincoln County (101%); Whatcom County (100%); Asotin County (100%)

*West Virginia: Mingo County (104%); Wyoming County (103%); McDowell County (102%); Brooke County (102%); Hancock County (100%)

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