July 20, 2016

I know it's difficult to break away from the Republican National Convention and such exciting speakers like Scott Baio and David Clarke, but it's time for the latest installment on the Clinton emails.

In the FOIA lawsuit in front of Judge Emmet Sullivan (covered previously here, here, and here), Judicial Watch decided deposing eight people wasn't enough, and asked the court to allow them to depose three more people. Among the three is Hillary Clinton.

This was not unexpected. In fact, there was a greater chance of Bigfoot strolling into Seattle for a latte at Starbucks, than Judicial Watch not asking Judge Sullivan permission to depose Clinton.

Judicial Watch Goes Clinton Fishing

In its motion asking to depose Clinton, Judicial Watch claimed that they needed Clinton to answer questions as to why she used her email server, why she continued to use her email server, what type of email system she used, what was Pagliano's role in creating the server, and why didn't Mr. Finney at State know about her system.

If some of these sound like questions that have been asked, and answered, in the Benghazi hearings in front of Congress, in numerous interviews in the Press, in the State Department OIG report, and in the FBI's findings—not to mention the eight previous depositions—you'd be right. And both Clinton's and State's lawyers made this assertion in response. As to what type of system she used and is Pagliano a vim or emacs person...it's difficult to see the relevancy.

In the response filed by Clinton's lawyers, they also noted that the Judicial Watch request for yet more depositions is, in their words, "futile".

In any event, the discovery requested by Judicial Watch is futile. The ostensible purpose of the requested discovery is to determine whether this Court should compel Secretary Clinton to produce her @clintonemail.com account (including any personal e-mail) from her private e-mail server equipment to the State Department for further searching in response to Judicial Watch’s FOIA request. Even if this Court had authority to issue such unprecedented relief, Secretary Clinton has nothing to produce, as the server equipment used to host her @clintonemail.com account is in the possession of the FBI.

State's Pushback Against More Depositions: It's Over, Put a Fork In It

State also opposed any more depositions, bluntly stating there's just nothing more to see here, and isn't it time to move on? About the request to depose Clinton, State wrote:

With respect to former Secretary Clinton, the record evidence does not demonstrate any intent to thwart FOIA. According to the sworn testimony, the Secretary had, as a matter of convenience, used a single personal email account for work and personal purposes both during her time in the Senate and in her 2008 presidential campaign, and her use of a personal account at State was simply a continuation of that practice. To the extent that she or anyone on her staff considered the FOIA implications of her use of a personal email account, the evidence elicited by Plaintiffs shows that they believed that her emails to State Department employees were being retained on the State Department’s computer systems.

State also made a point that while there might have been a good reason for allowing discovery at the time Judge Sullivan made the decision, in the interim the OIG report, the FBI investigation, and the final Congressional report on Benghazi report provided any and all additional information that could be extracted about Clinton's email. Judicial Watch was not able to discover any evidence of a plot to thwart FOIA with the email server, because there was no such plot...the use of the server was for convenience.

State also noted that the FBI had uncovered some emails from its investigations, and provided to the Court a copy of a letter to the FBI, requesting these emails.

The Monday Hearing on the Deposition Requests

On Monday, the lawyers met with Judge Sullivan to discuss the motion to allow more depositions. The transcript won't be released to the public for a few months, but media representatives were present at the hearing and have released some information. The Washington Post reports that State declared the FBI will release the emails it has this Friday, but it may be some time before any of these emails are released. However, those responsive to Judicial Watch's request, if any, will most likely be released quickly—if for no other reason than to be done with Judicial Watch.

Judge Sullivan said he'll make his decision on the motion soon. In my opinion, he should have made the decision during the hearing on Monday. It's obvious Judicial Watch's request is politically motivated. It's also obvious that no, the State has never attempted to thwart FOIA, and yes, the State is doing everything it can to answer the unreasonable number of FOIA requests Judicial Watch is making. There is no good reason to continue dragging this case out.

Judge Sullivan: Robed Crusader

It's unfortunate this case ended with Judge Emmet Sullivan. I know him very well, having followed his handling of the 14 year ASPCA et al lawsuit against Feld Entertainment (Ringling Brothers) over the welfare of its elephants. He was also the Judge who demanded an extraordinary independent investigation of the Department of Justice team involved with Senator Ted Steven's criminal legal case.

That overly long special investigation eventually led to one young DOJ lawyer killing himself.

Judge Sullivan sees himself as some kind of watchdog over truth, justice, and the American way. He's too quick to see malfeasance, and too stubborn to let go when no malfeasance is found. He knows that dragging this case out can have an impact on the election this year, but he sees himself as the champion of the people, above all this sort of thing. However, he can also miss the obvious when he gets too caught up in his role.

I suspect Clinton's lawyers have the same concern, because their response to the request for the deposition set the stage for an appeal. If Judge Sullivan demands Clinton undergo a verbal deposition, they'll most likely appeal the decision.

End, End, End Already...Dammit

In my opinion, an appeal against allowing these absurd FOIA discovery requests is long overdue. This farce needs to end. Our courts are already overburdened by Judicial Watch lawsuits...as is our FOIA system. And, as the RNC convention demonstrates too well, we have too much at stake this year to lose an election because of a simple mistaken decision to use a personal email account for both work and personal email—a choice that was allowed at the time.

Additional documents:

  • Judicial Watch replies to the State and Clinton's responses
  • Clinton reply to Judicial Watch's response
  • State reply to Judicial Watch's response

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