Legal Insurection – by William A. Jacobson
A hearing was held this afternoon in federal court in Washington, D.C., before Judge Emmet G. Sullivan, in the FOIA case brought by Judicial Watch seeking records regarding then Secretary of State Hillary Clinton’s aide Huma Adedin’s outside employment.
We have covered the court developments, including allegations by Judicial Watch that the State Department has failed to comply with court orders and has not provided sufficient searches. Yesterday the State Department filed a Reply admitting that Hillary never was issued a State Department Blackberry, and the Blackberries used by Adedin and Cheryl Mills likely were destroyed.
Today’s hearing was over Judicial Watch’s request for “discovery,” which normally doesn’t take place in FOIA cases. Discovery could include sworn depositions of witnesses.
Amy Miller was in Court for Legal Insurrection and reports:
The Judge ordered the State Department to confer with the FBI and DOJ as to searches of the server and thumb drive, including recovery efforts. The Judge wanted to wait until the State Department filed another status report before ruling on discovery issues.
Just after the hearing, the Court updated the docket with the following:
Minute Entry for proceedings held before Judge Emmet G. Sullivan: Status Hearing held on 8/20/2015. Court directs the government to file a status report on or before September 20, 2015 for reasons stated on the record in open Court. Further Status Hearing set for 10/1/2015 at 10:00 AM in Courtroom 24A before Judge Emmet G. Sullivan. Court to issue order accordingly. (Court Reporter Janice Dickman) (tcr) (Entered: 08/20/2015)
Amy will update soon with further details as to today’s court proceedings.
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Amy’s Updates
First up, the official docket text from today’s directive, as filed with the court:
MINUTE ORDER. For the reasons stated by the Court at the August 20, 2015 status hearing, and as agreed to by Defendant’s counsel, the State Department is hereby ordered to request that the Federal Bureau of Investigation (FBI) inform it about any information recovered from Mrs. Clinton’s server and the related thumb drive that is: (a) potentially relevant to the FOIA request at issue in this case; and (b) not already in the State Department’s possession.
The State Department shall file a status report, no later than Monday, September 21, 2015 at 12:00 p.m., informing the Court of the following: (1) the process agreed upon between the FBI and the State Department for the sharing of information relevant to this lawsuit; (2) the status of the Inspector General of the State Department’s report regarding Mrs. Clinton’s use of a private server; and (3) a timetable for the completion of any ongoing searches related to this lawsuit. Signed by Judge Emmet G. Sullivan on August 20, 2015. (lcegs4)
I plan on being in the courtroom for the next status hearing, the proceedings of which will inform the court’s decision on any discovery requests Judicial Watch may file in the coming weeks. During his time at the podium, JW attorney Michael Bekesha floated the idea of additional discovery against the State Department, which as Professor Jacobson mentioned above, would be a significant departure from standard operating procedure in FOIA cases.
JW’s basic argument today boiled down to their desire to gain more information about the “system of records” that Clinton used to conduct government business, and to extend the search already in progress to that complete system. At this point, we know where the already-revealed records came from, but because we don’t have access to the complete system of records Clinton and her staff used, in reality we have no idea where the actual records are hidden.
The State Department did not issue Clinton an official agency account, Blackberry, laptop, or any other equipment one would reasonably assume a chief diplomat would make use of while performing her official duties. Furthermore, the devices Clinton used are out there; to wit: The State Department tells us that they don’t have the devices [Clinton used to perform her duties], which means that Hillary Clinton did.
Or, does.
This is the heart of JW’s argument that State’s searches as per the FOIA request have not been reasonable. Although the DoJ is quick to argue that we’re dealing with Clinton’s personal system, as opposed to a government one, their logic is faulty. Clinton had her own system, and as Bekesha remarked during his discussion with the judge, “[t]his is how Mrs. Clinton conducted business.”
I expect fireworks in the coming weeks. Bekesha floated the idea of deposing the State Department’s Under Secretary for Management Patrick F. Kennedy on what State knew about Clinton’s system of records. As was mentioned pre-update, Judge Sullivan suggested to JW (“suggested” as coming from a judge is more than a suggestion) that they hold off until the 30 day “dialogue” period is over before asking for any more discovery. If they do decide to request discovery, whether in the form of depositions or otherwise, we won’t have a ruling on that request until the October 1 status hearing.
One interesting nugget from the DoJ’s time at the podium: when asked about the status and timeframe of any additional responsive documents, counsel from the DoJ mentioned that State is reviewing pages containing communications from two additional employees; one of those employees is a senior advisor to Under Secretary Kennedy. DoJ declined to offer the names of those two employees in open court. (Counsel told the judge that he did not have the names in front of him, and that State has declined to release that information due to privacy concerns.) The existence of this additional review could increase the likelihood of a discovery request for information directly from the Under Secretary’s office regarding what State knew about Clinton’s system of records.
“Federal Court orders State Dept to confer with FBI…”
Fox/hen house.
All will be ‘dealt’ with accordingly.
“We have investigated ourselves and found no evidence of wrong-doing.”