Where was Harold Koh, Part Two

Harold Koh is a left-wing professor at Yale law school where he once was the Dean. Koh served as Legal Adviser at the State Department during Hillary Clinton’s time as Secretary of State. We criticized the selection of Koh for this key post here and here.

Last month, Koh popped up (though not by name) in the Inspector General’s Report dealing with Hillary Clinton’s use of a private email server. The Report made it clear that although attorneys in the Office of the Legal Adviser had not approved or reviewed the use of Clinton’s server, some of them sent emails to Clinton on this account.

Accordingly, prompted by a reader, we asked, “Where was Harold Koh?” Specifically, we wondered (1) how many emails he sent to or received from Hillary Clinton on her her personal e-mail address in her capacity as Secretary and (2) (assuming, as the Report says, he wasn’t consulted about her using a private address), why didn’t he raise questions about that use.

It turns out that the invaluable litigators at Judicial Watch have been wondering similar things. Politico reports that in a court filing today, Judicial Watch complained that Koh (along with Undersecretary of State for Management Patrick Kennedy) was aware of Clinton’s use of a private email account, but appears not to have ensured that it was searched for records responsive to a Freedom of Information Act request the watchdog group filed in 2012.

Judicial Watch told the court:

Defendant … never outright disputes the allegations that senior State Department managers—including two top officials with primary responsibility for records preservation, Legal Advisor Harold Koh and Under Secretary for Management Patrick Kennedy—knew that Secretary Clinton used the non-state.gov ‘clintonemail’ records system for government business, nor that they knew that litigation seeking documents from those records was pending in this Court.

Nor does Defendant claim that these senior State Department managers made any effort to secure those records for review prior to Secretary Clinton’s departure from the State Department (an effort which, if made, failed). . . .

Discovery should be granted so these unaddressed facts can be determined.

Judicial Watch is asking Judge Reggie Walton to order that State select knowledgeable witnesses for depositions about how the agency handled the request and that State be forced to answer written questions about the issue. Depositions of several current and former State Department officials have already been ordered in other Judicial Watch litigation.

Unable to deny that Koh knew that Clinton was using a private email address, the State Department argues that there is “no evidence that Mr. Koh. . .was aware that this was the former Secretary’s only email account.” I’m not sure why Koh’s alleged lack of awareness of this fact is responsive to what Judicial Watch seems to be arguing — namely, that knowing about her private account, Koh should have attempted to secure records from that account for review.

Judge Walton, an appointee of President George W. Bush, has scheduled a hearing on the matter for next Friday. Perhaps Harold Koh will have to tell us where he was while, in a move he knew about, Hillary Clinton was thumbing her nose at Department rules thereby creating obvious problems for security, for the Federal Records Act, and for the Freedom of Information Act.