“There has been a constant drip, drip, drip of declarations. When
does it stop?” Sullivan said, “This case is about the public’s right
to know.”
In granting Judicial Watch’s request, Sullivan said that months
of piecemeal revelations about Clinton and the State Department’s
handling of the email controversy created “at least a ‘reasonable
suspicion’ ” that public access to official government records under
the federal Freedom of Information Act was undermined.
Sullivan noted that there was no dispute that senior State
Department officials were aware of the email set-up from time
Clinton took office, citing a January 2009 email exchange including
Undersecretary for Management Patrick F. Kennedy, Clinton chief of
staff Cheryl D. Mills and Abedin about establishing a “stand-alone
network” email system.
Sullivan said the State Department’s inspector general last month
faulted the department and Clinton’s office for overseeing processes
that repeatedly allowed “inaccurate and incomplete” FOIA responses,
including a May 2013 reply that found “no records” concerning email
accounts Clinton used, even though dozens of senior officials had
corresponded with her private account.
In a statement, Judicial Watch President Thomas J. Fitton called
the ruling “a major victory” for the public, and did not rule out
that Clinton could become one of the current and former department
officials whose testimony his group would seek.
“The court-ordered discovery will help determine why the State
Department and Mrs. Clinton, even despite receiving numerous FOIA
requests, kept the record system secret for years,” Fitton said.
“While Mrs. Clinton’s testimony may not be required initially, it
may happen that her testimony is necessary for the Court to resolve
the legal issues about her unprecedented email practices.”
Sutton’s group in court filings did not ask to depose Clinton by
name, but targeted requests at those who handled her transition,
arrival and departure from the department and who oversaw Abedin, a
direct subordinate.
Republican presidential candidates
like Sen. Ted Cruz and Sen. Marco Rubio are weighing in on
the State Department's Jan. 29 announcement that some of the
emails sent on former Secretary of State Hillary Clinton's
private email server contained top secret information.
(Reuters)
Sullivan’s decision came as Clinton seeks the Democratic
presidential nomination and three weeks after the State Department
acknowledged for the first time that “top secret” information passed
through the server.
[State
Department says Hillary Clinton’s email correspondence contained
‘top secret’ material]
The FBI and the department’s inspector general are continuing to
look into whether the private setup mishandled classified
information or violated other federal laws.
For six months in 2012, Abedin was employed simultaneously by the
State Department, the Clinton Foundation, Clinton’s personal office
and a private consulting firm connected to the Clintons.
[How
Huma Abedin operated at the center of the Clinton universe]
The department stated in February 2014 that it had completed its
search of records for the secretary’s office. After Clinton’s
exclusive use of a private server was made public in May, the
department said that additional records probably were available.
In pursuing information about Abedin’s role, Judicial Watch
argued that the only way to determine whether all official records
subject to its request were made public was to allow it to depose or
submit detailed written questions about the private email
arrangement to a slew of current and former top State Department
officials, Clinton aides, her attorneys and outside parties.
Justice Department lawyers countered in court that the State
Department is poised to finish publicly releasing all 54,000 pages
of emails that Clinton’s attorneys determined to be work-related and
that were returned to the State Department at its request for
review.
The case before Sullivan, a longtime jurist who has overseen
other politically contentious FOIA cases, is one of more than 50
active FOIA lawsuits by legal groups, news media organizations and
others seeking information included in emails sent to or by Clinton
and her aides on the private server.
The State Department has been releasing Clinton’s newly recovered
correspondence in batches since last summer with a final set due
Monday.
Meanwhile, former Clinton department aides Mills, Abedin, Jacob
Sullivan and Philippe Reines have returned tens of thousands of
pages of documents to the department for FOIA review, with releases
projected to continue into at least 2017.
The State Department also has asked the FBI to turn over any of
an estimated 30,000 deleted emails deemed personal by Clinton’s
attorneys that the FBI is able to recover in its investigation of
the security of the private email server.
“There can be no doubt that [the State Department’s] search for
responsive records has been exceedingly thorough and more than
adequate under FOIA,” according to filings by Justice Department
civil division lawyers, led by Principal Deputy Assistant Attorney
General Benjamin C. Mizer.
They argued that FOIA requires the agency to release records only
under its control — not under the control of its current or former
officials — and that “federal employees routinely manage their email
and ‘self-select’ their work-related messages when they, quite
permissibly, designate and delete personal emails from their
government email accounts.”
Sullivan’s decision will almost certainly extend through Election
Day an inquiry that has dogged Clinton’s campaign, frustrating
allies and providing fodder to Republican opponents.
FOIA law generally gives agencies the benefit of the doubt and
sets a high bar for plaintiffs’ requests for discovery. However, one
similar public records battle during Bill Clinton’s presidency
lasted 14 years and led to depositions of the president’s White
House counsel and chief of staff.
Because of the number of judges hearing the FOIA cases, there is
likewise a chance that the fight over Hillary Clinton’s emails could
“take on a life of their own,” not ending “until there are endless
depositions of top [agency] aides and officials, and just a parade
of horribles,” said Anne L. Weismann, executive director of the
Campaign for Accountability. Weismann also is a former Justice
Department FOIA litigation supervisor who oversaw dozens of such
fights from 1991 to 2002.
Still, she said, such drawn-out legal proceedings could be
valuable if they shed light on whether the State Department met its
legal obligations under open-government laws or systematically
withheld releasable records.
Last month, one of Sullivan’s colleagues, U.S. District Judge
James E. Boasberg, dismissed lawsuits brought by Judicial Watch and
the Cause of Action Institute that sought to force the government to
take more aggressive steps to recover Clinton’s deleted emails under
the Federal Records Act.
Plaintiffs “cannot sue to force the recovery of records that they
hope or imagine might exist,” Boasberg wrote Jan. 11, adding that,
to date, recovery efforts by the State Department and the National
Archives under that law “cannot in any way be described as a
dereliction of duty.”
The server’s existence was disclosed two years after Clinton
left, in February 2013, as secretary of state and as the department
faced a congressional subpoena and media requests for emails related
to scores of matters, including attacks that killed a U.S.
ambassador in Benghazi, Libya, and fundraising for the Clinton
family’s global charity.
[Clinton
receives key endorsement, but faces new questions]
In seeking records related to Abedin’s employment, Judicial Watch
asked to be allowed to depose or submit written questions to current
and former State Department employees and Clinton aides, including
Kennedy; John F. Hackett, director of information services;
Executive Secretary Joseph E. Macmanus; Clinton’s chief of staff,
Mills; lawyer David E. Kendall; Abedin; and Bryan Pagliano, a
Clinton staff member during her 2008 presidential campaign who
helped set up the private server.
More broadly, the group’s motion targets who oversaw State
Department information systems, Clinton’s transition and arrival at
the department, her communications, and her and Abedin’s departure
from the agency.
“What emails . . . were deleted . . . who decided to delete them,
and when?” Judicial Watch asks in filings.
The group also asks whether any archived copies of sent or
received emails on the private server existed, including
correspondence with Clinton technology contractors Platte River
Networks and Datto.
Rosalind S. Helderman contributed to this
report.