Federal Judge Rips DOJ and State, Orders Discovery on Clinton Emails

Royce Lamberth is an outspoken and sometimes controversial federal judge. Appointed by President Reagan, he has shown no partiality in going after litigants he considers to be malefactors. This time, it is the State Department and the Department of Justice.

Judge Lamberth is presiding over the lawsuit brought by Judicial Watch against the State Department, asking for emails relating to the Benghazi talking points that were promulgated after that attack. On Thursday, he issued an order blasting the federal agencies and authorizing discovery by Judicial Watch, as described below. In his order, Lamberth sets forth a long effort to deceive Judicial Watch and the court that was orchestrated by State and DOJ. It may be that we have not yet heard the last of the Clinton email scandal.

Here are excerpts from Judge Lamberth’s Order, with citations mostly omitted:

In July 2014, six months after Clinton resigned as Secretary of State, Judicial Watch filed this FOIA suit seeking emails from Clinton and her aides concerning the talking points former U.N. Ambassador Susan Rice used to defend the Obama Administration’s response to the attack on the U.S. Embassy in Benghazi, Libya. … And although it would take more than six months for the public to learn Clinton exclusively used a private email account as Secretary…, department officials already knew Clinton’s emails were missing from its records. …

State played this card close to its chest. In November 2014, State told Judicial Watch it performed a legally adequate search and concluded settlement was appropriate, despite knowing Clinton’s emails were missing and unstarched. … In December 2014–the same day Clinton quietly turned over 55,000 pages of her missing emails–State gave Judicial Watch a draft Vaughn index making no mention of the unsearched records.
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After another month of radio silence–by then, at least three months after State realized it never searched Clinton’s emails, and two months after Clinton gave the Department 30,490 of the 62,320 emails from her private server (she deleted the rest)–State filed another status report admitting “additional searches for documents potentially responsive to the FOIA must be conducted”…. A month later, Judicial Watch read the New York Times and realized what State was talking about… That story, along with reporting that Clinton’s former Chief of Staff Cheryl Mills and former Deputy Chiefs of Staffs Huma Abedin and Jake Sullivan also used personal email to conduct government business…exposed State’s deceit in this case.

At best, State’s attempt to pass off its deficient search as legally adequate during settlement negotiations was negligence born out of incompetence. At worst, career employees in the State and Justice Departments colluded to scuttle public scrutiny of Clinton, skirt FOIA, and hoodwink this Court.

The current Justice Department made things worse.

Emphasis added. That last comment shouldn’t be surprising. If you thought the Republicans are now running the Department of Justice–merely because Donald Trump was elected president!–you don’t understand how the federal bureaucracy, the unelected, non-constitutional fourth branch of government, operates.

The order contains much more. For example:

[I]n an even rarer subset of cases, the government’s response to a FOIA request smacks of outrageous misconduct. … This is one of those cases.

One subject of discovery, going forward, will be whether Hillary Clinton set up her illegal server in order to evade FOIA. To me, this is not a difficult question. Of course she did. Likewise, why do you think President Obama used an alias when he corresponded with Hillary on her off-the-books email account? While not prejudging the issue, Judge Lamberth exhibits an appropriate level of skepticism. He notes that a number of news accounts have raised the question of FOIA evasion, and continues:

Or take Abedin’s response when State’s Executive Secretary suggested Clinton use a government blackberry so her email “would be subject to FOIA requests”: “doesn’t make a whole lot of sense.”

I noted that email, which was cited in a different FOIA case by a different federal judge, here.

Even more telling is the State Department Inspector General’s conclusion that although dozens of department officials emailed Clinton’s personal account, the employees responsible for FOIA compliance didn’t know the account existed.

Finally:

Did State know Clinton deemed the Benghazi attack terrorism hours after it happened, contradicting the Obama administration’s subsequent claim of a protest-gone-awry? See Email from H, [email protected], to Diane Reynolds (Sept 11, 2012, 11:12 PM), … see also Nick Gass, Chelsea Clinton’s Secret Identity, Politico…(establishing Diane Reynolds as an email pseudonym for Chelsea Clinton).

What is it with Democrats and secret email identities? Some psychologist should look into the phenomenon.

Did State know Clinton sent or received top-secret information through her private email? See Statement by FBI Director James Comey…(noting the FBI recovered eight email chains from Clinton’s server containing top-secret information). Did the Department merely fear what might be found? Or was State’s bungling just the unfortunate result of bureaucratic red tape and a failure to communicate? To preserve the Department’s integrity, and to reassure the American people their government remains committed to transparency and the rule of law, this suspicion cannot be allowed to fester.

One might note that it has been festering for a very long time. The relevant events are now six years in the past. The Obama administration was astonishingly successful at stonewalling investigations, and its stonewalling continues under a Department of Justice nominally led by a Republican, but staffed overwhelmingly by Democratic Party loyalists.

Judge Lamberth’s order explains at some length why the discovery he orders is not duplicative of other pending or resolved cases. Well and good, but a basic lesson here is the inadequacy of litigation as a check on abuse of government power. Apart from anything else, it is simply too slow. Congressional investigations potentially can be faster, but committees use their subpoena powers sparingly, for reasons I don’t understand, and congressional investigations are usually not competently conducted, apart from being hampered by rampant partisanship. It would help if we had either a nonpartisan or a two-party press, but we don’t.

Still, despite everything, the truth about Hillary Clinton’s scandalous tenure as Secretary of State may emerge in time for historians to evaluate it.

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