State/DOJ Tells Appeals Court It Should Reject Clinton Effort to Avoid Testimony

hillary clinton. mills clinton and mills, doj

Judicial Watch announced today that it and the  State Department, which is represented by Justice Department lawyers, filed responses opposing former Secretary of State Hillary Clinton and her former Chief of Staff Cheryl Mills’ Writ of Mandamus request to overturn a U.S. District Court order requiring their testimony under oath regarding Clinton’s emails and Benghazi attack records. At the same time, the government argued that it did not engage in “bad faith” in failing to disclose the Clinton non-government email system to Judicial Watch and the court. The briefs were filed on April 3 with the U.S. Appeals Court for the District of Columbia Circuit.

The filings come in the appeals court’s proceedings concerning Judicial Watch’s lawsuit that seeks records concerning “talking points or updates on the Benghazi attack” (Judicial Watch v. U.S. Department of State (No. 1:14-cv-01242)).

Judicial Watch argues that Clinton and Mills “must demonstrate that they have no other adequate means of relief,” which they failed to show. Also, Clinton and Mills do not demonstrate “that the District Court’s order was a judicial usurpation of power or a clear abuse of discretion, or that [Clinton and Mills] have a clear and indisputable right to a writ.” In fact, “the District Court reasonably concluded that Clinton’s previous explanations for using a personal email server are cursory, incomplete, and seemingly at odds with what discovery has yielded to date.”

Judicial Watch further argues that Clinton and Mills are trying to avoid their deposition testimony by relying on, “their status as former high-level government officials.” Clinton and Mills, “do not offer a single case from this Court or any other, holding that former high-level government officials should not be required to follow regular appellate channels to challenge a discovery order.” Particularly in Mills’ case, Judicial Watch notes that they, “identify no case in which a court entertained a mandamus petition to stop the deposition of even a sitting cabinet member’s chief of staff.” [Emphasis in original]

Judicial Watch also argues against Clinton’s argument that she held the server under “claim of right,” when it contained thousands of federal records. Judicial Watch states that unlike other Secretaries of State, like Henry Kissinger, Clinton did not obtain an opinion from State’s Legal Adviser on whether she could take the federal records prior to her departure from State. Clinton’s “claim of right” argument over her server would be like a bank robbery:

A bank robber who stuffs bills into a duffle bag during a robbery may own the bag, but has no “claim of right” to the stolen cash. Is Clinton claiming a legal right to the agency records stored on the server? If so, Petitioners offer no factual or legal support for such a claim. While the server may have been Clinton’s property, the agency records on the server plainly were not.

Though they repeatedly sought to shut down any further inquiry in the lower court proceedings, the State and Justice Departments also argue against Clinton and Mills’ appeal to overturn the order for their depositions:

The government did not seek and thus does not support the extraordinary relief of mandamus due to the unique circumstances of this case.

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This is the rare situation in which discovery of a former Cabinet Secretary was not authorized for the impermissible purpose of probing internal government decisionmaking regarding official policy, but rather to focus on the impact on FOIA compliance of a former official’s unusual decision to use a private email server to systematically conduct large volumes of official business.

Judicial Watch went further:

It is not even clear that Clinton’s decision to use a “personal email server” and the subsequent routing of her emails out of the agency when she left office can fairly be characterized as “official action” … It was more likely a violation of law.

The agencies again defend their alleged misconduct despite a federal court finding that discovery can take place because of the strong evidence of their bad faith. The lower court rejected their efforts to end discovery and protect Clinton:

There is still more to learn. Even though many important questions remain unanswered, the Justice Department inexplicably still takes the position that the Court should close discovery and rule on dispositive motions. The Court is especially troubled by this. To argue that the Court now has enough information to determine whether State conducted an adequate search is preposterous, especially when considering State’s deficient representations regarding the existence of additional Clinton emails. Instead, the Court will authorize a new round of discovery.

Judicial Watch famously uncovered in 2014 that the “talking points” that provided the basis for Susan Rice’s false statements were created by the Obama White House. This Freedom of Information Act (FOIA) lawsuit led directly to the disclosure of the Clinton email system in 2015.

“Hillary Clinton’s desperate appeal to avoid testimony is even too much for her defenders at the State and Justice Department,” said Judicial Watch President Tom Fitton. “A federal court rejected Clinton and the Deep State’s attempts to shut our email inquiry down and agreed with Judicial Watch – that is time to hear from Hillary Clinton. The appellate court should quickly reject Mrs. Clinton’s gambit.”

On March 2, 2020, Judge Lamberth granted Judicial Watch’s request to depose Clinton about her emails and Benghazi attack documents. The court also ordered the deposition of Mills and two other State Department officials. Additionally, the court granted Judicial Watch’s request to subpoena Google for relevant documents and records associated with Clinton’s emails during her tenure at the State Department.

In December 2018, Judge Lamberth first ordered discovery into whether Secretary Clinton’s use of a private email server was intended to stymie FOIA; whether the State Department’s intent to settle this case in late 2014 and early 2015 amounted to bad faith; and whether the State Department has adequately searched for records responsive to Judicial Watch’s request. The court also authorized discovery into whether the Benghazi controversy motivated the cover-up of Clinton’s email. The court ruled that the Clinton email system was “one of the gravest modern offenses to government transparency.” The State and Justice Departments continued to defend Clinton’s and the agency’s email conduct.

In his order allowing the testimony under oath of Clinton and others, Federal District Court Judge Lamberth noted:

Discovery up until this point has brought to light a noteworthy amount of relevant information, but Judicial Watch requests an additional round of discovery, and understandably so. With each passing round of discovery, the Court is left with more questions than answers.

With respect to Clinton, the District Court found that her prior testimony, mostly through written sworn answers, was not sufficient:

The Court has considered the numerous times in which Secretary Clinton said she could not recall or remember certain details in her prior interrogatory answers. In a deposition, it is more likely that plaintiff’s counsel could use documents and other testimony to attempt to refresh her recollection. And so, to avoid the unsatisfying and inefficient outcome of multiple rounds of fruitless interrogatories and move this almost six-year-old case closer to its conclusion, Judicial Watch will be permitted to clarify and further explore Secretary Clinton’s answers in person and immediately after she gives them. The Court agrees with Judicial Watch – it is time to hear directly from Secretary Clinton.

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