Judge orders more fact-finding in Clinton email case

Judge orders more fact-finding in Clinton email case

U.S. District Court Judge Royce Lamberth, who has clashed with former Secretary of State Hillary Clinton and her aides in cases dating back to her husband’s administration, was unsparing in his assessment of Clinton's actions | Jeff Swensen/Getty Images

The email controversy that dogged Hillary Clinton through much of the 2016 presidential race could well be kicking around through the 2020 contest after a federal judge ordered additional fact-finding into whether Clinton’s use of the private email system was a deliberate effort to thwart the Freedom of Information Act.

In a scathing opinion issued Thursday, U.S. District Court Judge Royce Lamberth said that despite FBI, inspector general and congressional investigations into Clinton’s use of a private account for all her email traffic during her four years as secretary of state, the conservative group Judicial Watch should be permitted to demand documents and additional testimony about the practice.

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Lamberth, who has clashed with Clinton and her aides in cases dating back to her husband’s administration, was unsparing in his assessment of the former secretary’s actions. He blasted Clinton’s email practices as “one of the gravest modern offenses to government transparency.”

Lamberth also again expressed concerns that lawyers at the Justice Department and the State Department misled the court when they tried at the end of 2014 to wrap up Judicial Watch’s FOIA suit about Benghazi talking points even though some officials were aware months earlier that Clinton had tens of thousands of emails on a private system and had agreed to turn many of them over to State at its request.

“State played this card close to its chest,” the judge complained. “At best, State’s attempts 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.”

Lamberth, an appointee of President Ronald Reagan, also faulted the Trump administration for failing to clear up the mess and instead pressing on with a nothing-to-see-here approach.

“The current Justice Department made things worse,” the judge said, referring to an October hearing in which he initially flatly accused Justice lawyers of lying, then retreated a bit.

In the 11-page order issued on Thursday, Lamberth stopped short of alleging outright dishonesty, but he came close.

“Counsel’s responses strain credulity,” he wrote. “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.”

The judge suggested that some State Department and Justice Department employees friendly to Clinton might have been trying to keep the emails from the public. He noted that messages eventually released by the State Department showed Clinton telling her daughter, Chelsea, that the assault in Benghazi, Libya, was a terrorist attack, even though the Obama administration long maintained that it was not.

Justice Department lawyers have argued that they had no legal duty to search records not in the State Department’s possession at the time a FOIA request was made, and that lawyers actually working on the suit before Lamberth didn’t have as much information about what Clinton turned over as did more senior officials.

However, Lamberth disputed State’s narrow view of its legal duties.

“Legally, it is wrong,” he wrote, noting precedents (one of them his own) saying that records wrongfully removed from an agency may have to be searched wherever they are.

Justice Department attorneys argued that further discovery into the Clinton private server would be pointless in light of the extensive FBI investigation and information that Judicial Watch gathered in court-ordered discovery in another suit before another judge. That resulted in written questions being submitted to Clinton and in some of her top aides being forced to sit for depositions in another Judicial Watch suit before the 2016 election.

But Lamberth disagreed. He said there was still little clarity about private email accounts used by several of Clinton’s senior aides. He also said the public record is bare about why State tried to settle the talking-points FOIA case in late 2014 and early 2015 despite the fact that at least some officials knew that a huge trove of Clinton’s emails had not been searched.

The judge did not authorize any specific depositions or subpoenas on Thursday. Instead, he ordered both sides to confer on a discovery plan and report back to him within 10 days.

A Justice Department spokeswoman declined immediate comment on the ruling. An attorney for Clinton did not immediately respond to a request for comment.

The president of Judicial Watch, Tom Fitton, said he hoped that Lamberth’s ruling would make President Donald Trump’s appointees at the Justice Department change course in the litigation and take a more cooperative approach.

“The historic court ruling raises concerns about the Hillary Clinton email scandal and government corruption that millions of Americans share,” Fitton said in a statement. “Judicial Watch looks forward to conducting careful discovery into the Clinton email issue and we hope the Justice Department and State Department recognize Judge Lamberth’s criticism and help, rather than obstruct, this court-ordered discovery.”

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