June 1, 2016

Editor's note: The video above is Tom Fitton claiming he was stonewalled by Mills' lawyers, so there must be more than meets the eye. This post explains why he's lying.

Judicial Watch went on a fishing expedition with the Cheryl Mills deposition, and they weren't very subtle about it. The Judicial Watch lawyer, Ramona Cotca, strayed from the very *narrow confines of allowed discovery from the very start, with a series of easy and seemingly innocuous questions about Mills' legal background. However, such a line of questioning in the beginning of the deposition can get the witness to feel comfortable quickly answering questions, and before witness lawyers could object. The strategy is to get the witness into the habit of immediate answering, without pausing to consider what's being asked.

Mills' lawyers were having none of that, finally cutting the questions short and reminding Cotca that general questions about Mills' legal background were irrelevant, since she wasn't serving as a lawyer when she worked for the State Department. It was the start of many such legal clashes during the deposition.

Cotca then came in with a question completely in left field, asking about Mills' involvement with a lawsuit back in the early 1990s, when she worked as Associate Counsel for President Bill Clinton. This one was breathtakingly out of scope, and Mills' lawyers again cut it short. Rightfully so.

A Contentious Deposition

The entire questioning involved these side trips into disallowed discovery territory, with the lawyers having to stop the proceedings at several points, asking Ms. Mills to excuse herself, while they wrangled among themselves about what was allowed. At one point, Mills' lawyer Alexandra Walsh, snarkily asked the Judicial Watch folks if they needed a copy of Sullivan's discovery order.

MS. WILKINSON: I'm trying to get a basis for asking the questions. So I don't want to have to object.

MS. COTCA: This isn't with respect to processing of FOIA; this is respect to Secretary Clinton's use of her e-mail as the Secretary of State.

MS. WILKINSON: But that's not what the order says. It says the creation, operation of Clintonemail.com.

MR. ORFANEDES: This is not a debate. If you have a scope objection, say "scope," and we'll move on. If your witness --

MS. WILKINSON: You know, in most depositions people try to work together. Because I do want you to be able to get the questions asked and answers that you're entitled to. So I'm not trying to just make an objection for the sake of it. I'm actually trying to see if there's a basis, then I would be happy to have my client answer the question. In any deposition I've done, normally people are more than willing to do that, because the idea is to get you the information you're entitled to and that you need.

MS. WALSH: Do you guys need a copy of the order? I've got an extra one.

MS. WILKINSON: So is -- is it your position -- and I'll let her answer, maybe I won't instruct her not to answer. Is it your position that those questions go to the first topic, the creation and operation of Clintonemail.com?

MS. COTCA: We don't -- we don't need to -- I don't need to explain with respect to the strategy of how the questions are asked or with respect to where they fit in within the scope. We believe they are within the scope of Judge Sullivan's order. If you have an objection as to scope and if you want to instruct the witness not to answer, please do so. And refrain to just doing that when the witness is here.

MS. WILKINSON: I just want to make a record. We're trying to work it out. I wasn't asking you for your strategy. I was asking you whether you thought -- what topic it was under. And you're telling me you won't answer.

MS. COTCA: I already told you that it was within the first topic. It wasn't within the processing of FOIAs. And that's pretty obvious, that this scope is within that.

MS. BERMAN: Would this be a good time to take a break since we've been going for a while?

MS. COTCA: Sure.

It didn't get better. Cotca asked questions about Benghazi Congressional document requests (out of scope), asked Mills to guess what was on people's minds during certain times (seriously?), tried to get her to discuss events after Clinton left the Secretary position, and Mills was now her private counsel (privileged communications).

Cotca tried to find names of people Clinton worked with after she was no longer Secretary, would repeat the same question over and over again, even when Mills kept replying she didn't have the information. She specifically targeted any communication between Mills and Bryan Pagliano, the person who maintained the Clinton email server. But, as Mills kept replying, she wasn't into technology, she had no interest in how the email server was setup and maintained, and she really didn't think much of it while she was at State.

I suspect the Judicial Watch lawyer was so aggressive about Bryan Pagliano, because Pagliano's lawyer has already stated he would plead the Fifth throughout his entire deposition, just as he did with Congress. Pagliano has, many times, signaled his absolute dislike at being pulled into the Clinton email debate.

Some Useful Nibbles

Among the tangled fishing line, we did get some solid information, though I suspect it isn't what Judicial Watch was after. First of all, as stated in previous publications, we know what happened with the missing email during Clinton's first few months of tenure as Secretary. When Secretary Clinton started at State, she was using an AT&T email account. She dropped it and went with an email account on the existing server that President Clinton had set up. That was so many years ago, that any communication from that time would no longer be maintained on AT&T servers. So people can fish all they want, those communications are gone.

We also learned that what email account Secretary Clinton used really wasn't that much of a topic of conversation, or of concern. As Mills stated, the assumption would be that Clinton's emails would be preserved when she communicated with those people who used a State email address. Of course, thanks to the OIG report, we now know that people had to specifically use a special system, or print and file emails, in order to preserve them. But from Mills testimony, it was obvious she wasn't aware of the protocols in place.

It is also obvious in the deposition that, at least to Mills, the Clinton email setup was for convenience, not because of any nefarious attempt to hide documents from FOIA requests. In fact, issues associated with FOIA weren't really uppermost in Mills mind at the time. During her tenure at State, she was never instructed about FOIA protocols, never trained in any systems, and felt that her own email was preserved in the State systems, without having to do any additional work.

Mills also noted that Secretary Clinton exchanged emails with several people in the State Department, so her using her own email address wasn't hidden. And contrary to the New York Times article on the deposition, there was no indicator of a "gatekeeper" on Clinton's email address: if people had to ask for Clinton's email, it's because they didn't know it—the same as you might not know your best friend's sister's email address, but you want to send her an invitation to a birthday party. Your best friend isn't a "gatekeeper", she's just someone who had an email address you don't.

State certainly wasn't going to publish Secretary Clinton's email address online.

Cotca asked about emails to and from people outside of State, and Mills stated she wasn't aware of how these would be preserved. However, I can take a guess from my own perusal of Clinton's emails: she'd forward them on to one of her State staff, such as Deputy Chief of Staff, Jake Sullivan. I once noted how even if Sullivan was cc'd on an email, Clinton would still forward the email to him.

By the way, Jake Sullivan is not on Judicial Watch's deposition list for this lawsuit. He is, however, on the list for the lawsuit in Judge Lamberth's court. But that motion for discovery is being vigorously opposed, and the results of the discovery in the lawsuit in Sullivan's court may lead Lamberth to disallow discovery in his court's case.

If this is starting to be confusing, welcome to the world of trying to follow Judicial Watch's many, many FOIA lawsuits.

Lawyers: 0 Fish: 1

At the end, Mills own counsel questioned her about Secretary Clinton's emails, and Mills understanding of their preservation. As one can guess from the emails, Clinton wasn't big on communicating much through email, preferring to talk directly to people. And again, Mills own understanding of State email preservation demonstrated she was unaware of State protocols.

Q Did you understand at any time when you were at the State Department that e-mails Secretary Clinton was sending to you and others on your State.gov account would not be saved by the State Department?

A No. It was my impression they would be saved by the State Department.

Q And did you do anything with the Secretary to avoid FOIA by having her e-mails sent -- or at least the e-mails she sent to you, on to your State.gov account?

A No.

Cheryl Mills stated several times she wish she had "given more thought" about the emails and FOIA. However, in my opinion, this wasn't her job or her duty, and should have come about because of procedures in place and via career State employees ensuring the procedures were followed, as I noted in my first and second writing about the OIG report.


Fox notes the intensity about Pagliano. However, the assertion by an "intelligence source" about Pagliano's testimony being "devastating" is pure BS.

Pagliano is an IT guy. He knows tech. And he wants to be left alone.

Because he's not willing to talk with anyone, he makes an attractive target for speculation. Consider the source.

Update 2

Sorry, it's Alexandra Walsh, not Alexander Walsh.

* By order, the discovery was limited to:

The scope of permissible discovery shall be as follows: the creation and operation of clintonemail.com for State Department business, as well as the State Department’s approach and practice for processing FOIA requests that potentially implicated former Secretary Clinton’s and Ms. Abedin’s emails and State’s processing of the FOIA request that is the subject of this action. Plaintiff is not entitled to discovery on matters unrelated to whether State conducted an adequate search in response to Plaintiff’s FOIA request, including without limitation: the substantive information sought by Plaintiff in its FOIA request in this case, which involves the employment status of a single employee; the storage, handling, transmission, or protection of classified information, including cybersecurity issues; and any pending FBI or law enforcement investigations.

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