Hillary Clinton’s lawyers are expected to appear before a federal judge Monday morning in a bid to keep her from being forced into videotaped, sworn testimony about her email system, but they’re keeping their options open if things don’t go their way.
In a little-noticed passage in a court filing last week, Clinton’s legal team laid the groundwork for a potential appeal that could allow the presumptive Democratic presidential nominee to delay any deposition for weeks or months, perhaps even until after the November election.
“For the sake of preserving any and all rights, counsel to Secretary Clinton respectfully submit that discovery is unwarranted in this case as a general matter,” longtime Clinton lawyer David Kendall and colleagues wrote in a filing submitted to U.S. District Court Judge Emmet Sullivan.
Legal experts say the language is aimed at keeping the door open for Clinton to try to block a deposition at the U.S. Court of Appeals for the D.C. Circuit if Sullivan decides to order one.
Kendall “is preserving that position for ultimately raising it on appeal, if necessary….It’s safe lawyering,” said Dan Metcalfe, former co-director of the Justice Department’s Office of Information and Privacy, now with American University’s law school. “It’s a wise thing to do, but one could infer from that that he’s not 100 percent confident that the argument….would prevail.”
It’s difficult to predict whether Sullivan will grant the request he’s set to take up Monday from the conservative group Judicial Watch, which is demanding to put Clinton under oath in connection with a Freedom of Information Act lawsuit exploring aspects of her private email set-up.
The judge—an appointee of President Bill Clinton—has been sharply critical of the former secretary of state for her handling of her emails. At a hearing last August, Sullivan said Clinton’s “violation of government policy” was responsible for the email imbroglio. And in May, the judge approved depositions for several of Clinton’s aides and issued an order explicitly leaving open the possibility Clinton herself might be required to testify.
But Sullivan has also seemed concerned about the litigation becoming a football in the presidential campaign. In May, he not only acceded to a request from a close Clinton aide to put videos of the depositions off limits to the public, he expanded the court-ordered restriction to the videos of all depositions conducted in the case.
If Sullivan approves a deposition for Clinton and the Clinton camp goes to the D.C. Circuit to try to block such testimony, Clinton appears to have a decent chance of succeeding at least in winning a delay, in part because that court has been very deferential to cabinet members in similar circumstances.
In 2014, the D.C. Circuit blocked a court-ordered deposition of Homeland Security Secretary Jeh Johnson in a defamation lawsuit former Agriculture employee Shirley Sherrod brought against late conservative blogger Andrew Breitbart over a video he published. The appeals court said it was “well-established” that c members should not be deposed in civil suits absent “extraordinary circumstances.”
Clinton is a former cabinet official, not a sitting one. However, her court filings last week mention that her status as a former cabinet official more than half a dozen times.
The D.C. Circuit may be more politically fertile territory for Clinton than it was a few years ago. The court is now split between Democratic and Republican appointees, 7-4. Four of the court’s Democratic appointees have joined the court since 2013.
Another reason Clinton’s legal team got directly involved in the case for the first time last week: while State is opposing a deposition for Clinton, the agency and its lawyers at the Justice Department might not try to appeal to block Clinton’s deposition if it is ordered.
In May, when Sullivan ordered depositions of about half a dozen former State officials—including a couple of close aides to Clinton—State did not try to seek relief from the D.C. Circuit, even though State argued against allowing the depositions in the first place.
The hearing Monday before Sullivan is likely to focus on whether Clinton’s use of a private email server could bring Judicial Watch’s Freedom of Information Act lawsuit within an exception to a 1980 Supreme Court case involving the papers of another former secretary of state, Henry Kissinger. The high court ruled that Kissinger’s papers were not obtainable under FOIA because they were not in the State Department’s control at the time of the request, but in a footnote the court suggested its ruling might be different if an employee intentionally placed outside an agency’s possession.
“We need not decide whether this standard might be displaced in the event that it was shown that an agency official purposefully routed a document out of agency possession in order to circumvent a FOIA request. No such issue is presented here. We also express no opinion as to whether an agency withholds documents which have been wrongfully removed by an individual after a request is filed,” Justice William Rehnquist wrote for the court’s majority.
In filings last week, Clinton’s lawyers argued that because the Judicial Watch request involved in the suit came after Clinton left office in February 2013, the Kissinger case controls and State has no obligation to provide records that Clinton possessed at that time.
“Kissinger squarely covers this case,” Kendall wrote, noting that Judicial Watch’s request for records about Clinton aide Huma Abedin’s employment arrangement came several months after Clinton left State.
Clinton’s lawyers went even further, arguing that “a general intent to ‘thwart’ FOIA” isn’t enough to upend the general rule that records outside an agency’s possession are lost to FOIA requesters.
In a statement last week, Judicial Watch President Tom Fitton called it “both significant and disturbing” that Clinton was asserting her private email account was her private property, just as Kissinger asserted about the records he took and deposited in a restricted collection at the Library of Congress.
Sullivan might choose to shut down or delay the request for Clinton testimony given that it’s unclear what the court could do at this point to recover more of Clinton’s emails. She already turned over about 30,000 messages her lawyers deemed work-related. Those records have been searched by State, processed under FOIA, and released with the exception of a few messages deemed to contain “Top Secret” information.
The FBI currently has possession of several servers used by Clinton, as well as some messages recovered from other sources. After FBI Director James Comey announced he wasn’t recommending criminal charges against Clinton or others over the emails, the law enforcement agency said it plans to provide emails that might qualify as official records to the State Department.
Clinton has said she has no emails from that period in her possession at this point, beyond the equipment transferred to the FBI. However, it remains unclear how long it will take for State to obtain those records and just who will decide which of Clinton’s emails might qualify as official State records.
In addition, some of the records and equipment in the FBI’s possession might still be Clinton’s property, leaving open some prospect of Judicial Watch winning some court-supervised process to examine that material for government records.
On the other hand, it’s also possible Sullivan might decide the lawsuit under discussion Monday isn’t the right vehicle to pursue questions about Clinton’s handling of her email. There are dozens of other FOIA suits pending against State, including some relating to requests filed before Clinton stepped down as secretary.
Those other cases might be stronger ones to press the issue, but it’s unclear whether judges in those case would demand Clinton submit to deposition, how quickly they would do so, and whether a higher court would intervene over an order for such testimony issued in the months or weeks before Clinton is expected to face presumptive GOP nominee Donald Trump in the November election.