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Judicial Watch • JW v. Kerry Opposition 00785

JW v. Kerry Opposition 00785

JW v. Kerry Opposition 00785

Page 1: JW v. Kerry Opposition 00785

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Case 1:15-cv-00785-JEB Document Filed 07/29/15 Page THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
JUDICIAL WATCH, INC.,
Plaintiff,
JOHN KERRY, his official capacity
U.S. Secretary State
Defendant.
Civil Action No. 15-0785 (JEB)
PLAINTIFFS OPPOSITION DEFENDANTS MOTION CONSOLIDATE
AND MOTION EXTEND DATE RESPOND THE COMPLAINT
Plaintiff Judicial Watch, Inc., counsel, submits this opposition Defendants motion consolidate and motion extend date respond the complaint. Defendant seeks
consolidate this case with later-filed case captioned Cause ofAction Institute Kerry, al.
(No. 15-1 068)(JEB) (COAF) and 38-day extension time, beyond the days already
afforded him, respond the Complaint this case. Defendants motion did not fully
explain Plaintiffs position these matters, Plaintiff states follows:
MEMORANDUM POINTS AND AUTHORITIES
Plaintiff, principle, does not oppose consolidation. This case was filed first.
Cause Action Institute filed its complaint nearly six weeks after Plaintiff filed its complaint
and largely copied Plaintiffs legal theory. Thus, consolidated, COAl should consolidated
into this case.
Prior the filing this motion, Plaintiff informed Defendant counsel that Plaintiff
would not oppose consolidation and reasonable request for extension time
days. See Exh. (July 2015 email exchange between counsel).
Case 1:15-cv-00785-JEB Document Filed 07/29/15 Page
Plaintiff does oppose, however, consolidation these cases excuse delay
Defendants response this case. Defendant seeks 38-day extension oftime, top ofthe
days already has utilized, respond the Complaint. If, Defendant contends, that the
complaints are similar that consolidation proper, Defendant should able respond
both complaints the date that response Plaintiffs complaint due, not when the COAl
response due, days later. Moreover, any extended delay runs directly contrary Rule
which states that consolidation intended avoid unnecessary cost delay. Fed. Civ.
42(a)(3)(emphasis added).
The lengthy, unnecessary extension time proposed Defendant particularly
ill suited this matter. This case involves the removal and ongoing failure recover agency
records. Nearly every day brings new, startling revelations possible destruction these
records and Defendants continuing failure recover them. See Exh. (Michael Schmidt, Copies Clinton Emails, Lawyer Says, N.Y. TIMES, July 24, 2015). Even more disturbing,
many which apparently contain classified information. See Exh. (Michael Schmidt and
Matt Apuzzo, Hillary Clinton Emails Said Contain Classified Data, N.Y. TIMES, July 24,
2015). While Defendant would like days fashion response the Complaint, time
the essence taking action recover these records.
WHEREFORE, Plaintiff respectfully requests that the Court deny Defendants motion.
Dated: July 29,2015
Respectfully submitted,
Is/ James Peterson
James Peterson (D.C. Bar No. 450171)
JUDICIAL WATCH, INC.
425 Third Street, S.W., Suite 800
Washington, 20024
(202) 646-5172
Counsel.for Plaint{ff
Case 1:15-cv-00785-JEB Document 7-1 Filed 07/29/15 Page
Exhibit
Case 1:15-cv-00785-JEB Document 7-1 Filed 07/29/15 Page
Jim Peterson
From:
Sent:
To:
Subject:
Jim Peterson
Thursday, July 23, 2015 2:46
Federighi, Carol (CIV)
RE: Kerry, No. 15-0785
Carol- You indicated during our phone call that your client wanted extension the date that response the
Cause Action complaint due, sometime apparently September. the defendant needs brief extension time respond Judicial Watchs complaint, beyond the days already has had, such week two, uld not
appose that. Otherwise, see reason delay this case because another organization copied our legal theory five
weeks later. defendant intends seek consolidation and also lengthy extension time into September, Judicial Watch opposes
both. Peterson
From: Federighi, Carol (CIV) [ma ilto:Caroi. Fe.Q~hi@usdoj.govl
Sent: Thursday, July 23, 2015 1:51
To: Jim Peterson
Subject: RE: Kerry, No. 15-0785
Jim- mentioned over the phone, defendants request for (and need for) extension not tied consolidation,
and would requesting the extension regardless consolidation, due variety factors, including the fact that was only recently assigned the case and the difficulty getting adequate participation all necessary parties
August. appreciate you would reconsider this request for reasonable extension. any event, can represent that
Judicial Watch does not oppose consolidation but does oppose extending the answer date? Thanks, Carol
From: Jim Peterson [mallto:JPeterson@.:JUDICIALWATCH.ORG]
Sent: Thursday, July 23, 2015 1:33PM
To: Federighi, Carol (CIV)
Subject: Kerry, No. 15-0785
CarolAs discussed this morning, client not opposed principle your proposed motion consolidate Judicial
Watchs case with the later-filed Cause Action complaint. If, however, this results delay, your client requesting extension time respond the other complaint, cannot consent the consolidation. our view, the defendant will have had full sixty days prepare response Judicial Watchs compla int. your ients position that the two complaints are similar that they should consolidated, are aware reason that
the defendant should able respond both complaints the date that response Judicial Watchs complaint
due.
Thus, defendants position that seeks consolidation and also extension time, Judicial Watch opposes both.
Regards, Peterson
Case 1:15-cv-00785-JEB Document 7-2 Filed 07/29/15 Page
Exhibit
7129/2015
rnistress
omer1ca .:g
~1) NttrUork Qtbnts
1..: http://nyti.ms/1 Nmwqe2
POLITICS Copies Clinton Elllails Server,
Lawyer Says MICHAELS. SCHMIDT
MARCH 27, 2015
WASHINGTON examination the server that housed the personal
email account that Hillary Rodham Clinton used exclusively when she was
secretary state showed that there are copies any emails she sent
during her time office, her lawyer told congressional committee
Friday.
After her representatives determined which emails were governmentrelated and which were private, setting the account was changed
retain only emails sent the previous days, her lawyer, David Kendall,
said. said the setting was altered after she gave the records the
government.
Thus, there are hdr22@clintonemail.com emails from Secretary
Clintons tenure secretary state the server for any review, even such
review were appropriate legally authorized, Mr. Kendall said letter
the House select committee investigating the 2012 attacks Benghazi,
Libya.
The committee subpoenaed the server this month, asking Mrs. Clinton hand over third party could determine which emails were
personal and which were government records.
http:llwww.nytimes.coml20151031281uslpoliticslncrcopies-of-hillary-clinton-emails-on-server-lawyer-says.html
114
7/29/2015 news conference this month, Mrs. Clinton appeared provide two
answers about whether she still had copies her emails. First, she said that
she chose not keep her private personal emails after her lawyers had
examined the account and determined their own which ones were
personal and which were State Department records. But later, she said that
the server, which contained personal communication her and her
husband, former President Bill Clinton, will remain private. The server was
kept their home Chappaqua, N.Y., which protected around the clock the Secret Service.
Mrs. Clintons disclosure Friday only heightened suspicions the
committees chairman, Representative Trey Gowdy, Republican South
Carolina, about how she handled her emails, and likely lead more
tension between her and the committee.
Mr. Gowdy said written statement that appeared that Mrs. Clinton
deleted the emails after Oct. 28, when the State Department first asked her
turn over emails that were government records.
Not only was the secretary the sole arbiter what was public record,
she also summarily decided delete all emails from her server, ensuring
one could check behind her analysis the public interest, Mr. Gowdy said.
Mrs. Clintons unprecedented email arrangement with herself and her
decision nearly two years after she left office permanently delete all
emails had deprived Americans full record her time office,
added.
Mr. Gowdy said that Mrs. Clinton would have answer questions from
Congress about her decision, but did not say whether that would
hearing private interview. spokesman for Mrs. Clinton said statement, Shes ready and
willing come and appear herself for hearing open the American
http:/lwww.nytlmes.com/2015/03/28/us/politics/no-coples-of-hillary-clinton-emails-on-l,lerver-liNIjer-says.html
214
7/2912015
public.
The spokesman, Nick Merrill, added that Mrs. Clintons representatives
have been touch with the committee and the State Department make
clear that she would like her emails made public soon possible.
The ranking Democrat the committee, Elijah Cummings
Maryland, defended Mrs. Clintons disclosure.
This confirms what all knew that Secretary Clinton already
produced her official records the State Department, that she did not keep
her personal emails, and that the select committee has already obtained her
emails relating the attacks Benghazi, Mr. Cummings said. the letter, Mr. Kendall offered defense for the process Mrs. Clinton
had used differentiate between personal messages and government
records. said that those procedures were consistent with guidelines from
the National Archives and the State Department, which say that individual
can make the decision about what should preserved federal record.
So, Mr. Kendall contended, the process Mrs. Clinton used was not
arrangement that unprecedented unique, but instead the normal
procedure carried out tens thousands agency officials and employees the ordinary course.
Mrs. Clintons review her emails, however, did not occur when she
was secretary state shortly after she left office. Last October, nearly two
years after she left office, the State Department sent her letter requesting all
government records, like emails, she may have possessed. response, she provided the State Department December with about
30,000 printed emails that she said were government records. She has said
that additional 30,000 emails were personal. appears that Mrs. Clinton still has copies the emails she deemed
http:/lwww.nytlmes.com/201cw0312Bius/poJitics/no-copies-of-hillary-cllnton-emails-on-server-lfN.1Yer-says.html
314
7129/2015
public records. Attached Mr. Kendalls letter was one sent him the
State Department this week. letter from the under secretary state for
management, Patrick Kennedy, said that the department understood that
she wanted keep copies those documents. Mr. Kennedy said that the
agency had consulted with the National Archives, and that allowing her
access the documents the public interest will promote informed
discussion she responds congressional and other inquiries.
Mrs. Clinton cannot make the emails public without the State
Departments approval. Mr. Kennedy said that the State Department
determined that any the documents were classified, additional steps will required safeguard and protect the information. Mrs. Clinton has said
she had classified information her emails. version this article appears print March 28, 2015, page the New York edition
with the headline: Emails From Clintons Time State Dept. Are Her Server, Lawyer
Says.
2015 The New York Times Company
http://ww>N.nytimes.com/2015103/;!us/politics/ncrcopies-of-hillary-clinton-emalls-on-server-lawyer-says .html
414
Case 1:15-cv-00785-JEB Document 7-3 Filed 07/29/15 Page
Exhibit
mistress
arn.:::riccl
CJ{;i.:~:
ltbtNtbr ork Qtmu
http://nyti.ms/1 CVpYvr
POLITICS
Hillary Clinton Emails Said Contain
Classified Data MICHAELS. SCHMIDT and MATT APUZZO
JULY 24, 2015
WASHINGTON- Government investigators said Friday that they had discovered
classified information the private email account that Hillary Rodham Clinton
used while secretary state, stating unequivoca1ly that those secrets never should
have been stored outside secure government computer systems.
Mrs. Clinton has said for months that she kept classified information the
private server that she set her house she would not have carry both
personal phone and work phone. Her campaign said Friday that any government
secrets found the server had been classified after the fact.
But the inspectors general the State Department and the nations intelligence
agencies said the information they found was classified when was sent and
remains now. Information considered classified its disclosure would likely
harm national security, and such information can sent stored only computer
networks with special safeguards.
This classified information never should have been transmitted via
unclassified personal system, Steve Linick, the State Department inspector
general, said statement signed him and Charles McCullough III, the
inspector general for the intelligence community.
http ://www.nytimes.com/20 15/07/25/us/politics/hillary-clinton-email-classified-information-inspe... 7/28/2015
The findings the two inspectors general raise new questions about Mrs.
Clintons use her personal email the State Department, practice that since
March has been criticized her Republican adversaries well advocates open
government, and bas made some Democrats uneasy. Voters, however, not appear
swayed the issue, according polls. their joint statement, the inspectors general said the classified information
had originated with the nations intelligence agencies, such the Central
Intelligence Agency the National Security Agency. against the law for
someone receive classified document briefing and then summarize that
information unclassified email.
The two investigators did not say whether Mrs. Clinton sent received the
emails. she received them, not clear that she would have known that they
contained government secrets, since they were not marked classified. The inspectors
general did not address whether they believed Mrs. Clinton should have known such
information was not appropriate for her personal email.
Regardless, the disclosure example unforeseen consequence Mrs.
Clintons unusual computer setup. Security experts have questioned whether her
practice made government secrets more vulnerable security risks and hacking.
Exactly how much classified information Mrs. Clinton had the server
unclear. Investigators said they searched small sample emails and found four
that contained government secrets. But Mr. McCullough said separate statement
that although the State Department had granted limited access its own inspector
general, the department rejected Mr. McCulloughs request for access the 30,000
emails that Mrs. Clinton said were government-related and gave the State
Department.
Mrs. Clintons lawyer, David Kendall, purported also have copies the
30,000 emails thumb drive, according Mr. McCullough.
Campaigning New York Friday, Mrs. Clinton pledged cooperate with
inquiries into her emails, but also said she would stay focused the issues the
heart her presidential campaign.
http://www.nytimes.com/20 15/07/25/us/politics/hillary-clinton-email-classified-information-inspe. 7/28/2015 are all accountable the American people get the facts right, and will part, Mrs. Clinton said. But also going stay focused the issues,
particularly the big issues, that really matter American families.
The discovery the four emails prompted Mr. McCullough refer the matter F.B.I. counterintelligence agents, who investigate crimes related the
mishandling classified information. Thursday night and again Friday morning,
the Justice Department referred the matter criminal referral, but later
Friday dropped the word criminal. The inspectors general said late Friday that
was security referral intended alert authorities that classified information
may exist least one private server and thumb drive that are not the
governments possession.
Irrespective the terminology, the referral raises the possibility Justice
Department investigation into Mrs. Clintons emails she campaigns for president.
Polls show she the front-runner for the Democratic nomination wide margin.
Mishandling classified information crime. Justice Department officials said decision had been made about whether open criminal investigation.
The refusal the State Department give Mr. McCullough access the
emails has reignited calls Republicans for Mrs. Clinton hand over the server
that she used house the personal email account. Secretary Clinton truly has nothing hide, she can prove immediately
turning over her server the proper authorities and allowing them examine the
complete record, Speaker John Boehner, Republican Ohio, said Friday.
Her poor judgment has undermined our national security, and time for her
finally the right thing.
The Justice Department typically reluctant open politically charged
investigations unless there clear evidence criminal wrongdoing. For example,
authorities said last year that they would not open investigation into dueling
claims the C.I.A. and the Senate Intelligence Committee dispute that also
centered around access classified information.
http://www.nytimes.com/20 15/07/25/us/politics/hillary-clinton-email-classified-information-inspe... 7/28/2015
Maggie Haberman contributed reporting from New York. version this article appears print July 25, 2015, page the New York edition with the
headline: Clinton Emails Said Contain Classified Data.
2015 The New York Times Company
http://www.nytimes.com/20 15/07/25/us/politics/hillary-clinton-email-classified-information-inspe... 7/28/2015
Case 1:15-cv-00785-JEB Document 7-4 Filed 07/29/15 Page THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
JUDICIAL WATCH, INC.,
Plaintiff,
Civil Action No. 15-0785 (JEB)
JOHN KERRY, his official capacity
U.S. Secretary State
Defendant.
[PROPOSED ORDER
Upon consideration the Defendants Motion Consolidate and Motion Extend Date Respond the Complaint and the entire record herein, hereby ordered that:
Defendants Motion DENIED. ORDERED.
Dated:
--------------------
The Hon. James Boasberg
United States District Judge