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Judicial Watch • JW v. State Motion Proceedings Transcript 01363

JW v. State Motion Proceedings Transcript 01363

JW v. State Motion Proceedings Transcript 01363

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
JUDICIAL WATCH, INC.,
Plaintiff,
UNITED STATES DEPARTMENT
STATE,
Defendant.
Civil Action
No. 13-163
Monday, July 18, 2016
10:00 a.m.
Washington, D.C.
TRANSCRIPT MOTION HEARING PROCEEDINGS
BEFORE THE HONORABLE EMMET SULLIVAN,
UNITED STATES DISTRICT COURT JUDGE
APPEARANCES:
For the Plaintiff:
Michael Bekesha, Esq.
JUDICIAL WATCH, INC.
425 Third Street, SW,
Suite 800
Washington, 20024
(202) 646-5172
Fax: (202) 646-5199
Email: Mbekesha@judicialwatch.org
James Peterson, Esq.
JUDICIAL WATCH, INC.
425 Third Street,
Suite 800
Washington, 20024
(202) 646-5175
Fax: (202) 646-5199
Email: Jpeterson@judicialwatch.org
Ramona Raula Cotca, Esq.
JUDICIAL WATCH, INC.
425 Third Street,
Suite 800
Washington, 20024
(202) 646-5172, 328
Fax: (202) 646-5199
Email: Rcotca@judicialwatch.org
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
APPEARANCES:
Cont.
For the Plaintiff:
Tom Fitton, Esq.
JUDICIAL WATCH, INC.
425 Third Street, SW,
Suite 800
Washington, 20024
(202) 646-5172
Fax: (202) 646-5199
For the Defendant:
Caroline Lewis Wolverton, Trial
Attorney
U.S. Department Justice
Civil Division Massachusetts Ave.,
Suite 7150
Washington, 20001
(202) 514-0265
Fax: (202) 616-8470
Email:
Caroline.lewis-wolverton@usdoj.gov
Marcia Berman, Trial Attorney
UNITED STATES DEPARTMENT JUSTICE
Civil Division, Federal Programs
Branch
P.O. Box 883
Benjamin Franklin Station
Washington, 20044
Email: Marcia.berman@usdoj.gov
Steven Myers, Trial Attorney
UNITED STATES DEPARTMENT JUSTICE
Civil Division, Federal Programs
Branch Masachusetts Avenue,
Washington, 20530
(202) 305-8648
Fax: (202) 616-8460
Email: Steven.a.myers@usdoj.gov
For Non Party Hillary
Rodham Clinton:
David Evan Kendall, Esq.
WILLIAMS CONNOLLY, LLP
725 12th Street,
Washington, 20005
(202) 434-5145
Fax: (202) 434-5029
Email: Dkendall@wc.com
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
APPEARANCES:
Cont.
For Non Party Hillary
Rodham Clinton:
Amy Mason Saharia, Esq.
WILLIAMS CONNOLLY LLP
725 12th Street,
Washington, 20005
(202) 434-5847
Fax: (202) 434-5029
Email: Asaharia@wc.com
Katherine Marie Turner, Esq.
WILLIAMS CONNOLLY, LLP
725 12th Street,
Washington, 20005
(202) 434-5487
Fax: (202) 434-5029
Email: Kturner@wc.com
Court Reporter:
Scott Wallace, RDR, CRR
Official Court Reporter
Room 6503, U.S. Courthouse
Washington, D.C. 20001
202.354.3196
scottlyn01@aol.com
Proceedings reported machine shorthand, transcript produced computer-aided transcription.
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
MORNING SESSION, JULY 18, 2016
(10:08 a.m.)
THE COURTROOM CLERK:
Your Honor, this Civil Action
13-1363, Judicial Watch, Inc. versus the Department State.
Will parties please come forward the lectern and introduce
yourselves for the record.
MR. BEKESHA:
Good morning, Your Honor. behalf Judicial Watch.
Michael Bekesha
James Peterson, Ramona Cotca and Tom Fitton.
THE COURT:
MR. BEKESHA:
MS. WOLVERTON:
Along with counsel table
All right, Counsel.
Good morning.
Thank you.
Good morning, Your Honor.
Caroline Wolverton with the Department Justice, appearing
behalf the defendant, the United States Department State.
And with are, from the Department State, Marcy Berman,
Steven Myers.
Alison Welcher.
And with from the Department State
THE COURT:
All right, Counsel.
Good morning.
Good
morning.
MR. KENDALL:
THE COURT:
MR. KENDALL:
Good morning, Your Honor.
Good morning, Counsel.
David Kendall, with colleagues,
Katherine Turner and Amy Saharia, from Williams Connolly, here
for nonparty, Hillary Rodham Clinton.
THE COURT:
All right.
Good morning everyone.
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
All right.
Let think its always helpful give little backdrop, background, about how got this point and
then Ill hear some argument.
counsel shouldnt read anything into the questions that ask.
tend ask lot questions, only because trying reach
the right decision for the right reasons.
into the questions ask, because youre probably wrong you
think you know what the answers going be.
Ill have some questions, and dont read anything
But are here this morning Judicial Watchs motion
for additional discovery.
23rd, the Court granted the plaintiffs motion for discovery
under Rule 56(d).
questions surrounding the creation, purpose and use the
clintonemail.com server should explored through limited
discovery before the Court could decide, matter law, the
ultimate issue, whether the government has conducted adequate
search response Judicial Watchs FOIA request.
set forth not going over that opinion the
order.
Its ECF Number 97. February the
The Court was persuaded the plaintiff that stand it.
Thats all
Its docket 59.
The critical question explored during discovery was
whether not Mrs. Clinton the State Department sought
deliberately thwart FOIA through the creation and use
Mrs. Clintons private server.
the case set forth the Courts memorandum and order
granting limited discovery, and thats not issue before the
The full procedural history
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
Court today.
During the following eight weeks, from early May this
year early June, six individuals were deposed, and the State
Department answered interrogatories and voluntarily produced
documents.
the executive secretary staff the department, who testified
behalf the State Department 30(b)(6) deponent.
officials deposed include Stephen Mull, the executive
secretary the State Department from June 2009 October 2012;
Among those deposed was Ms. Karin Lang, director
The other
Lewis Lukens, the executive director the Executive
Secretariat from 2008 2011; Patrick Kennedy, Under
Secretary Management since 2007, and the Secretary States
principal advisor management issues, including technology and
information services; Cheryl Mills, Mrs. Clintons chief
staff throughout her four years Secretary State; Huma
Abedin, Mrs. Clintons deputy chief staff and senior advisor Mrs. Clinton throughout her four years Secretary State,
and who also had e-mail account clintonemail.com; and Bryan
Pagliano, the State Departments Schedule employee who has been
reported have serviced and maintained the server that hosted
the, quote, clintonemail.com, end quote, system during
Mrs. Clintons tenure Secretary State.
testimony was extremely limited since did and certainly
had the right that invoke the Fifth Amendment.
Now, the plaintiff seeks permission take three
Mr. Paglianos
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
additional depositions including that Mrs. Clinton,
Mr. Clarence Finney and Mr. John Bentel, and Ill separate out
the individuals.
And the public knows and Ive written extensively
about this.
extensively about this the Stevens case, which your firm
was directly involved, and issued least three opinions about
the publics right know the whistleblower complaint, the
Schuelke report, and then couple other opinions.
And know Mr. Kendalls present. wrote
The Court takes extremely seriously the publics right
know about the details why Mrs. Clinton used private server
for official government business.
Congress to, pierce the veil administrative secrecy and
open agency action the light public scrutiny.
all set forth D.C. Circuit precedent, especially Morley
CIA, 501 F.3rd 1108.
Indeed, FOIA was designed
And thats set forth the Supreme Court, FOIA serves as, The
citizens right informed about what the government
to, citing the Supreme Court authority U.S. Department
Justice versus Reporters Community For Freedom the Press, 489
U.S. 749. agree with the FBI director, Director Comey, that the
American people deserve many details possible the case intense public interest.
statement the Clinton investigation, and totally concur with
And that regard, Ive read his
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
him that point.
The resolution this case, fair and appropriate
manner, critical the principles transparency
government that FOIA espouses.
parties argument.
give brief overview the parties arguments and then invite
argument from counsel.
because Ive read everything, understand your arguments, but
want give everyone chance highlight their principal
Ill give brief overview the
Ive read everything more than once.
Ill
And Ill ask that you the point,
arguments and concerns.
Judicial Watch argues that deposing Mrs. Clinton
necessary explore the following issues:
the clintonemail.com system; why the system was used even
though times interfered with her job; Mrs. Clintons
claim over the records the clintonemail.com system;
Mrs. Clintons inventorying records upon the completion her
tenure secretary; why clintonemail.com was not archival;
and details about Mr. Paglianos role creating and
operating clintonemail.com.
plaintiffs memorandum and supplemental memorandum. the purpose for
And thats all set forth the
Both Mrs. Clintons private attorneys and the State
Department oppose Judicial Watchs request depose
Mrs. Clinton.
areas identified Judicial Watch have either already been
sufficiently answered or, indeed, are irrelevant the discovery
Mrs. Clintons attorneys argue that the six topic
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
that was permitted this case.
Mrs. Clinton also emphasizes
precedent requiring the presence extraordinary circumstances
before current former governmental officials ordered sit
for deposition; the apex line cases.
And Judicial Watch recognizes the significance asking
former agency head and presumptive nominee for president sit
for deposition, dont think theres any disagreement
there.
developed thus far, her testimony crucial understanding how
But Judicial Watch argues that based the record
and why the system was created and operated.
The State Department argues that the record developed thus
far plaintiff during discovery includes evidence
intent thwart FOIA, Mrs. Clinton the State Department
anyone else employed the State Department, and that discovery
has refuted plaintiffs theory intent thwart FOIA,
making additional discovery either futile moot. the alternative, the State Department urges the Court stay its decision additional discovery until the search
the additional 3,000 documents found the FBI during its
investigation complete. appropriate point make inquiry the State Department
before give the plaintiff opportunity heard, and
inquiry well deal with that last topic that the Court just
focused on, the additional documents. youve reached out
And actually, think its probably
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
Good morning, Counsel.
Youve reached out the FBI for
the additional documents?
MS. WOLVERTON:
THE COURT:
MS. WOLVERTON:
Yes, Your Honor. you have them yet?
Not yet, Your Honor.
The FBI the
process compiling the retrieved materials and will begin
transferring those retrieved materials the State Department
this Friday. will begin its process for searching the retrieved materials,
using the same search terms and date range restrictions that the
parties agreed previously, search the retrieved materials
coming from the FBI for anything thats responsive Judicial
Watchs FOIA request.
And soon the State Department receives them,
THE COURT:
Let stop you for second. not being
critical them, but just thought about maybe being
critical.
documents you?
Why does the FBI need much time get the
Well, first all, when was the request made the FBI?
MS. WOLVERTON:
The State Department made the request
the FBI July 8th, and the FBI responded believe was July
12th.
the State Departments briefing.
Department are close communication.
technical logistics transferring the materials. transfer them electronically and that will facilitate
Those exchange letters are the papers attached
And the FBI and State
Theyre focusing the
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
The idea
expeditious searching.
THE COURT:
And then you need more time figure that
out?
MS. WOLVERTON:
Your Honor, understand that they will
ready Friday.
are moving quickly possible.
THE COURT:
Its possible could happen sooner, but they
All right.
Well, itd seem that
they especially the FBI could figure out way transmit
those documents electronically, immediately upon request, they
had objections.
know that. mean, you just push button. mean,
right.
This computers illiterate am, but all youll get them this Friday?
MS. WOLVERTON:
THE COURT:
Yes, possibly sooner.
And the next question, then, you know what
thats going be:
Department through those documents?
MS. WOLVERTON:
How much time will take the State
Sure, sure.
And want make clear
that the process transferring the materials begin this
Friday. come once.
THE COURT:
Its going rolling basis.
Its not all going
And, again, this because -Was there reason given that, rolling
basis?
MS. WOLVERTON:
It, again, has with the kind
technical aspects the transferring, making sure that all
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
happens correctly.
searching soon retrieves the materials and, again -THE COURT:
And the State Department committed mean, just seems like its foot dragging.
And being critical now. the FBI and have the
highest regard for Director Comey. the FBI has told the American public that there are
3,000 documents, think theres not?
head. mean, -MS. WOLVERTON:
THE COURT:
MS. WOLVERTON:
THE COURT:
Youre shaking your
Several thousand.
Several thousand, oh. you know the number?
No. thought was finite number that had been
identified?
MS. WOLVERTON:
Um, Director Comey did make reference to,
not specific number, but think tens thousands
work-related e-mails.
THE COURT:
Excuse one second.
(Brief pause proceedings.)
THE COURT:
Oh, tens thousands more documents.
All right.
MS. WOLVERTON:
THE COURT:
think the best evidence several thousand documents,
Maybe should not critical. Mr. Comey. believe thats right, Your Honor.
All right.
Okay. take back criticism
All right.
And itll commence Friday and continue for how long?
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
MS. WOLVERTON: rolling basis, expeditiously
possible.
new.
weeks ago, and its hard not really position
provide any greater specifics, but can assure the Court that moving with all due speed. all happening very quickly, and its relatively
The FBI investigation just concluded little less than two
THE COURT:
Okay.
And looking Mr. Comeys
statement which did say that the FBI also discovered
several thousand work-related e-mails that were not the group 30,000 that were returned Secretary Clinton.
Which, again, think raises legitimate question.
Since
theyve discovered several thousand, mean, they know what
exists, would seem me.
dont understand the need for all this time have rolling
production something you already have.
MS. WOLVERTON:
Theyre not still searching,
Your Honor, has with the format
within the which the materials are organized, and making sure
that the way that they are transferred format that the
State Department can use its existing systems access.
there direct and continuous communication with
THE COURT:
And
Can you explain that laypersons terms?
mean, the format, what you mean?
MS. WOLVERTON:
Your Honor, have beg the Courts
indulgence that dont have the technological expertise
describe detail.
And, again, fluid, but the State
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
Department does want receive the materials electronic
format, and format that can work with readily, whether
thats PDF form another kind form.
THE COURT:
All right. then, how long will take the
State Department through these documents?
understand from pleadings, the State Department has
objections releasing the business e-mails the public; that
correct?
MS. WOLVERTON:
And
Your Honor, believe that that the
intent.
Its just, said, you know, everything happening sort
very quickly and the information new.
provide the Court with status report, perhaps, seven ten
business days, and anticipate that that time, there
hopefully will more information along these lines.
And apologize that dont have more specifics.
THE COURT:
Okay. would happy
Can you make informed prediction
about how long the search going take the State
Department?
MS. WOLVERTON:
THE COURT: wish that could sorry, but have keep asking these
questions.
MS. WOLVERTON: respond, but unfortunately, dont
have that information this time.
THE COURT:
And thats because you dont know the scope
what youre going receive?
Lets assume its 10,000
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
documents.
Department through 10,000 documents?
hypothetical.
Hypothetically, how long would take the State
Thats just
Thats not because ahead.
MS. WOLVERTON:
Well, Your Honor, should clarify,
though, that the intent not for the State Department wait
until has, you know, all the materials and conduct full
records assessment all those.
materials, will run the searches for Judicial Watchs FOIA
request and identify any documents that are responsive, and then soon receives that point, make records assessment see, you know,
there anything more released.
know, its going take long time.
anticipation wont take long time once they get the
documents.
THE COURT:
though.
All right. its not that, you
Once the the
Well, thats thats relative,
Whats long time?
MS. WOLVERTON:
Well, when the State Department received
the 55,000, did take some months for the State Department
conduct records assessment all those and put them
the State Departments Website, that thats the longer time
that was referencing, and there shouldnt anything like that
with respect the plaintiffs FOIA requests, because thats
going happen first, before theres the overall records
assessment all the materials received from the FBI.
THE COURT:
All right. youre assuming that its not
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
55,000 documents?
Its less than additional 55,000 documents?
MS. WOLVERTON:
The best information have, Your
Honor recognized, several thousand.
THE COURT:
Several thousand, okay. note and, again, not being critical. note that the Department State has asked for
extension time related cases because lack
resources.
preferential treatment, assume? assume that this case will given some
MS. WOLVERTON:
Yes, will be. had confirm with
client, and the confirmation yes, will given priority.
THE COURT:
All right. that the State Department
lawyer the end the table; that right?
talk about what that means.
All right.
All right. you dont have the number now.
given preferential treatment.
Well will accept that.
The question still becomes:
MS. WOLVERTON:
How long will that take?
Again, Your Honor, will happy
provide the Court with status report and get much
information can answer that question, and would
suggest seven ten business days, could provide that.
THE COURT:
MS. WOLVERTON:
THE COURT:
All right.
Thank you very much, Counsel.
Thank you. want hear from Judicial Watch with
respect its request for additional discovery.
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
And, you know, course, the major question is:
Why any additional
discovery necessary?
Watch has taken the position the past that the ultimate remedy sought, and was correct, was the State Departments searching the server, which cant do.
server, and have have doubt that subsequent search
the server any other agency the government would
useless.
made under oath and the public that the FBI did exhaustive
And answering that mean, Judicial
The FBI has searched the
The FBI accept Mr. Comeys representations that
search utilizing numerous avenues search the server
servers.
any other agency the federal government would serve any
purpose all. dont think any additional search the server that regard, the FBI has completed.
And just echo what just said, confident its
not based upon any the discussions with anyone, havent
talked anyone.
statements made Mr. Comey, that the FBIs search was far more
extensive forensically forensically, than anything the
Department State could have accomplished.
But confident, based upon public view the inspector let back for second.
When the Court issued its memorandum opinion and order,
what was not existing that time was the report the State
Department Inspector General.
were the conclusions the FBI and recommendations the
Department Justice.
What was not present that time all that information public, and
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
Mr. Comey has testified before the Hill about additional about
his recommendations. assume was under oath the time. why you need more discovery?
MR. BEKESHA: think there were two questions there:
Sure.
Thank you, Your Honor.
One was talking
about potential remedy and relief that Judicial Watch seeking
and how that plays into where are; and then the second part
being why additional evidence necessary.
Again, just what think the FBI turning over records,
why that doesnt moot out this case, Mrs. Clintons attorney
suggested did
THE COURT:
Well, few months ago you told all you
wanted was the documents.
MR. BEKESHA:
THE COURT:
MR. BEKESHA:
THE COURT:
Thats -Thats the transcript, right? is, Your Honor. let stop you for second. youre
going get the documents that youre entitled to, why
doesnt that end the search?
MR. BEKESHA:
Sure.
There are couple points there.
First, did have the opportunity back and look
the numerous hearings, the transcripts weve had over the years,
and over the past year, and last summer, August, talked
about what the FBI had may subset all the information.
The reason focused the system February was
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
because, that time, didnt know assumed that the
server, that system, had all the information it.
have had all Mrs. Clinton and Ms. Abedins e-mails for the
four-year period the one system. would
Mr. Comey testified that some the e-mails have were
deleted lost, for whatever reasons, during that four-year
period, and the FBI recovered some the e-mails, but
dont know its all the e-mails.
Mr. Comeys statement said that the you read before,
that the several thousand work-related e-mails that were not
the group the 30,000 that were returned Secretary Clinton,
this FOIA request about Ms. Abedins special government
employee status.
e-mails are issue well.
used the clintonemail.com system well.
clear that the FBI recovered any deleted records Ms. Abedin
from the server they were even looking for it.
Mr. Comey Director Comey testified
THE COURT:
The government has said that Ms. Abedins the Court knows, Ms. Abedin
And its not all
But you have FOIA request pending with the
FBI, though, you not?
MR. BEKESHA: have FOIA request pending with the
FBI.
FOIA request, werent 100 percent sure about how that would
play and what the law is.
But, you know, its also unclear and when sent the
You know, its unclear the servers still
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
Mrs. Clintons, and the FBIs supposed return the records.
the FBI turning over records the State Department, the FBI
may not have records anymore.
investigative file and how the law and what the how that plays
out with FOIA.
but its not sure answers all the questions.
And then those records are the FOIA request FBI was important for us,
But the other issue its dont theres
evidence, whatsoever, that the FBI was going around looking for
Ms. Abedins e-mails from the clintonemail.com system. dont
know they the FBI went other employees the State
Department, they went other entities, other agencies.
just dont know, and
THE COURT:
MR. BEKESHA:
And youll probably never know. probably wont know, because doubt the
FBI likes share what they did.
But thats why dont think that this case moot
simply because the FBI turning the records over the State
Department.
the fact that the State Departments willing voluntarily turn
over additional records, but this very you know, were
the same place were with the 55,000 pages.
place were when the State Department was conducting additional
searches because they found new archival system. appreciate it.
Were you know, appreciate
You know, the end, they
THE COURT:
Were the same
They keep the same place?
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
MR. BEKESHA:
Were the same legal posture wise.
Factually, have -THE COURT:
Youve taken lot depositions, and just
want give some credit the attorneys for the individuals and
also for Judicial Watch for assumption they were all
conducted very civil manner.
contrary.
MR. BEKESHA:
THE COURT: didnt hear anything the
They were, Your Honor.
And these are people with demanding schedules,
and Ive been believe me, when that when those when that
type when you see that type civility, requires
say, Thanks, appreciate it.
was dreading that, about objection during the course
deposition, believe me, that means lot.
MR. BEKESHA: never got phone call, and
All parties were able come agreements schedule, any issues with objections.
information from Ms. Mills, because there were questions, but the
parties were able come together and resolve that issue without
giving Your Honor call.
THE COURT: submitted additional
What youve done, though, youve taken all
these depositions.
statement the public, well under oath.
scintilla any evidence that this e-mail system was created effort thwart FOIA.
You have the report.
You have Mr. Comeys
Theres not that correct statement this point?
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
MR. BEKESHA: dont believe that correct
statement, Your Honor.
THE COURT:
MR. BEKESHA:
What evidence you have?
The evidence have and lot
evidence has been provided.
exhibits.
that, extent, highlight where our focus and why need
additional information.
The Court has the transcripts, the
You know, very briefly, think there are six facts
THE DEFENDANT:
MR. BEKESHA:
Those are six areas?
These are different from the six areas.
They were part the six areas, but reviewing all the papers,
tried condense everything something little bit more
clear, using the different parts.
THE COURT:
though
MR. BEKESHA:
THE COURT:
Lets talk about the six areas first,
Okay. and Ill give you opportunity focus the six additional points.
The first area the purpose for the clintonemail.com
system.
based upon Mrs. Clintons current statements about the purpose
for clintonemail? that regard, can you point any credibility issues,
MR. BEKESHA:
Can you?
The the specific evidence have shows
that one was able testify, under oath, why the system was
created.
Both Ms. Abedin and Ms. Mills pointed Mrs. Clintons
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
public statements.
convenience.
most convenient for her.
Mrs. Clintons public statements were for
She says she created the system because was the
THE COURT:
Has Mrs. Clinton ever testified before any
forum any case, under oath, that the e-mail system was set for any reason other than convenience?
MR. BEKESHA:
Um, dont know that, Your Honor.
That
question was touched upon during the Benghazi select committee
hearing. wasnt dont believe was directly asked,
with direct answer.
interview Mrs. Clinton.
THE COURT: may have been asked during the FBI
Mr. Comey, indeed, testified under oath that was his understanding that the system was set for
Mrs. Clintons convenience, did not?
MR. BEKESHA:
Your Honor.
THE COURT:
MR. BEKESHA:
THE COURT: said, their best information, yes,
Right.
But, again -And the FBIs best information after, what, year-long investigation?
MR. BEKESHA:
Why isnt that sufficient?
They werent asking the same questions were
asking.
The FBI was focused assume the FBI was
focused classified information, and her creation the
system, her use the system, relates classified
information.
And the question wasnt about the Freedom
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
Information Act, wasnt about federal recordkeeping processes,
and the interplay the system with those statutes and with
those obligations.
THE COURT: think probably agree with you that the
focus was not whether not FOIA was violated, but if,
indeed, Mrs. Clintons informal meeting with the FBI convinced
the FBI that the system was set for her convenience, period,
why shouldnt that just carry the day that issue?
MR. BEKESHA: think the facts that weve gathered
during discovery show that the system really wasnt all that
convenient, that the additional facts and additional evidence
shows that, you know, maybe the system that throughout the
period, you know, the State Department asked Mrs. Clinton she
wanted during the transition period when she started
THE COURT:
This second factor that youve
highlighted, though, the fact that, times, that system that
e-mail system interfered with her job, then?
MR. BEKESHA:
THE COURT:
MR. BEKESHA:
Thats the second one.
Lets deal with the
first one, though.
Thats correct, but the first
Sure.
The first factor the State
Department asked Mrs. Clinton she wanted State Department
BlackBerry and State Department e-mail address, and she said
no.
Ms. Abedin and Ms. Mills understood that Mrs. Clinton was simply
Mrs. Clinton, prior her testimony has been that
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continuing her practice using personal e-mail account, just
one e-mail account everything, both personal and
work-related stuff.
Prior Mrs. Clinton becoming Secretary State, she
never had FOIA obligations federal recordkeeping obligations
when she was senator, that changed.
changed.
changed, why did she not recognize those obligations and then
change her normal course business because these new legal
And the question is:
Her legal obligations
When those legal obligations
obligations that applied when she became Secretary State?
THE COURT: that line questioning that
line questioning that was pursued during the Benghazi
investigation?
MR. BEKESHA: dont believe was, Your Honor. mean,
the Benghazi select committee, their focus was the Benghazi
terrorists attacks.
interviews.
dont believe that anywhere
They did take they did have several
They asked Mrs. Clinton about the e-mail use, but
THE COURT:
About the e-mail use and why she used that
system?
MR. BEKESHA:
THE COURT:
MR. BEKESHA: little bit that, but not much.
Okay. mean, wasnt the focus their
investigation. believe that their focus, their authority, was investigate the Benghazi terrorists attacks.
They
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tangentially reviewed evidence, took testimony about her use
the system, but she didnt answer the specific questions.
specific questions werent put her:
new obligations Secretary State, obligations FOIA and
other federal recordkeeping statutes, why did you keep using that
same system?
THE COURT:
The
Now that you have these
But she said publicly, and believe under
oath and stand corrected because theres just ton
information.
But she said publicly that was mistake her
part. she had over again, shed differently.
And how many times day all say that?
MR. BEKESHA:
THE COURT:
Thats correct, Your Honor. mean, when sign name order,
sometimes think, Why did that?
MR. BEKESHA:
You know, thats correct, Your Honor, people
make mistakes, but
THE COURT:
MR. BEKESHA:
Right. would say that even, you know, the
extent may have been mistake that time, and maybe she
didnt understand all her FOIA obligations when she created
the system prior her becoming secretary, once she became
secretary, she was aware her obligations, and then looking
some the evidence and our other points, that she was reminded her FOIA obligations her staff was reminded her FOIA
obligations throughout her tenure, and she didnt change using
Scott Wallace, RDR, CRR, Official Court Reporter
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the system.
The question is:
Why did she not change using the system? one point Mr. Mull Ambassador Mull, the e-mail that
provided with the Court early on, before discovery, where
talks about the personal, private e-mail server being down and
maybe thats why shes looking for State Department BlackBerry.
You know, the first sentence that paragraph talks about that
Mrs. Clinton made choice use State Department BlackBerry
and State Department e-mail address.
Mr. Mull then reminded Ms. Abedin, her deputy chief
staff, that such e-mail would subject FOIA.
the IRM unit, Mr. Bentel, around the same hour, identified
other staff that would subject FOIA.
reason, Mrs. Clinton decided not use State Department e-mail
account and State Department BlackBerry.
And the question hasnt been answered:
The head
And then for some
Why did she
reverse course her decision? Mrs. Clinton about that.
sending the e-mail.
didnt remember that even knew that she was using private
e-mail server, even though wrote those words the e-mail.
Ms. Abedin said she didnt speak
Ambassador Mull didnt remember didnt remember talking anybody. weve tried gather the evidence from her senior
aides, from individuals the State Department that were
responsible for records management, and havent been able
get some these simple questions about why she started using
Scott Wallace, RDR, CRR, Official Court Reporter
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the system and why she continued using the system.
THE COURT: there are probably five six questions
that you would like get the answers to, right?
MR. BEKESHA:
Wed like say wed like say issue
areas, because, you know, discovery, you ask one question
and that leads another question.
THE COURT:
But you have fairly good idea what the
follow-ups would be, depending the answers?
MR. BEKESHA:
Well, that could be, Your Honor, and thats
why suggested that deposition more than three hours,
because were not witch hunt here.
discovery for discovery sake, but -THE COURT:
Were not taking
But shes not party, Mrs. Clinton not
party.
MR. BEKESHA:
She not party, thats correct, Your
Honor, but she has essential information.
able were going able get some this
information from her chief staff and from her deputy chief
staff.
THE COURT: thought were
Suppose you had opportunity ask her one
question, and that question was, Why did you set up?
And
she said, You know, set up, like Ive said publicly, for
convenience.
Ive said was mistake, and wish could undo it,
and but that was thats the reason why set up.
And looking back and dont know how many times
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Would that sufficient?
MR. BEKESHA: wouldnt be, Your Honor, because
think
THE COURT:
MR. BEKESHA:
Why not?
Because there are some follow-up questions,
you know, talking
THE COURT:
MR. BEKESHA:
Like what?
Some the follow-up questions like, what
about light Mrs. Clintons FOIA obligations, light
federal recordkeeping obligations? understand that may
have been her private practice, but now that her legal
obligations changed, how did change with her?
Mrs. Clinton said that there was approval. that
informal approval? that formal was allowed.
sorry, Your Honor. was informally allowed?
official approval?
Why did she think was allowed?
really hasnt been answered.
been answered under oath, why Mrs. Clinton believes that her
system was allowed.
creation and the early years the use the information.
THE COURT:
Was
That dont believe that questions
Thats follow-up question about the
All right. the questions why she
chose Mrs. Clinton chose set the system.
The second category, why the system was used, even
though, times, interfered with her job, how that
remotely relevant the narrow scope discovery permitted
Scott Wallace, RDR, CRR, Official Court Reporter
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this Court?
MR. BEKESHA:
Sure. believe its extremely relevant
because Mrs. Clinton has stated publicly that she used the system
for convenience.
tenure, there was difficulty using the system, communicating with
State Department employees, receiving and sending e-mails
them.
department trying resolve the issues.
The evidence shows that over almost her entire
The State Department spent significant time the ITs said, there are -THE COURT:
worked well?
Doesnt this presume that the system always
And think all know didnt, did it?
MR. BEKESHA: didnt work well, but the questions are:
Why did she stick with it?
e-mail where Mrs. Clinton said she said, This isnt good
system.
being accessible.
she decide not use State Department BlackBerry, State
Department e-mail account, because she didnt want the personal
accessible?
Why one point have the
And then later she said, dont want the personal
And the questions:
What does that mean?
Did
Now, you could read one way, that she didnt want
personal e-mails accessible, but the question then is,
Mrs. Clinton would know, personal e-mails are not subject FOIA
requests, her even she used the State Department system,
she would not her personal e-mail would not turned over
the public, and that doesnt really seem concern.
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Another way you could read that e-mail that she didnt
want the personal system accessible.
then is:
the system?
was the executive secretary the time; Mr. Bentel, that was the
director IRM for the seventh floor, was the person,
helping you know, assisting the secretary with any technical
issues.
What was she hiding the system?
And the question
Why was she using mean, there were you had Ambassador Mull, who
And both them reminded her staff that State
Department BlackBerry and State Department e-mail account would subject FOIA, and the question have for Mrs. Clinton
is:
follow through your decision leave the personal system that
was having issues and towards State Department and official
system?
Because they were subject FOIA, that why you didnt
Was that the reason why?
And Ms. Mills and Ms. Abedin didnt testify about that
because they didnt speak Mrs. Clinton directly about those
issues.
that dont believe the FBI has asked her.
transcript for the Benghazi select committee, they did not ask
those questions her.
Mrs. Clinton the only one that can answer those questions. thats other questions that have for Mrs. Clinton,
THE COURT:
Looking the these are questions that remain, and
The third category you focused
Mrs. Clintons claim over the records the clintonemail.com
system.
And, again, why isnt that outside the scope
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discovery?
MR. BEKESHA:
Its not outside the scope discovery,
Your Honor, because what Mrs. Clinton thought about those records
during her time Secretary State directly related her
operation the system and how the operation the system also
interfered interacted with Freedom Information Act
obligations.
Mrs. Clintons attorney, one his papers, said that
Mrs. Clinton had private right claim right the
server, which
THE COURT:
Well, why even have get into that
issue? that Mrs. Clinton voluntarily returned some 55,000 pages
documents.
opinion and concurring opinions well. discuss that, all. mean, the fact the matter and one disputes
And the Courts well aware the recent circuit dont think need
And just need your best answer why this area
not outside the scope discovery?
MR. BEKESHA:
Its outside the scope discovery
because goes the heart why she used the system.
she believed that all these e-mails during her four years
conducting government business were her e-mails
THE COURT:
That gets back question number that
question, that one question.
MR. BEKESHA: does, Your Honor.
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THE COURT:
Just answer that one question:
Why did you
use this?
MR. BEKESHA: think all the questions do, Your
Honor even identified the memorandum opinion.
real focus the motivation, and all these
THE COURT:
Thats number
You know, the
Whyd you set up?
Whyd
they it?
MR. BEKESHA:
THE COURT:
Yes, Your Honor, and our argument -Do you really anticipate answer different
from the public answers that Mrs. Clinton has given:
for convenience purposes?
MR. BEKESHA:
She did dont expect different answer about that
question, why the system was initially set up. think what
important motivation throughout her tenure. there may have
been one reason why the system was set early
THE COURT:
MR. BEKESHA:
Right. but then also, factual circumstances
change, legal circumstances change.
not change made, and how and why was made not change the
system throughout the four years?
has publicly answered that question.
was the system created?
And then why was decision
And dont think Mrs. Clinton
All questions were:
Why
And may have been for convenience prior she
became office know that the clintonemail.com domain name
was set January 13th believe was January 13th.
Scott Wallace, RDR, CRR, Official Court Reporter
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She
started using the e-mail account shortly thereafter.
Mrs. Clinton said she didnt think she couldnt remember when
she started.
weve e-mails that weve received the course this
discovery, well other FOIA requests, show that there were
e-mails February, well January,
She thought may have been March.
THE COURT:
She was Secretary State.
Records that
She just started new job.
MR. BEKESHA:
She did.
She started new job that had
FOIA obligations and recordkeeping requirements, and instead appears that instead recognizing those and using the
State Department system, when the State Department asked her
she wanted e-mail account, she said no.
And why did she continue with the system goes out?
And why was that?
You know, that also leads to, believe, its our fourth
point may our fifth point but about the type
system she created. she used commercially available system, such G-mail
the State Department system, would have automatically
archiving records.
not automatically archiving records, the question then is:
Why?
You know, Director Comey talked about that
The system she used, that was created, was
And all these questions youre right.
All the
questions back the first question the motivation
question, but was the motivation the beginning, during, and
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then get the end her tenure, when the Secretary
State when Mrs. Clinton and her staff were packing the
boxes, were deciding what records take from the State
Department, what records they were not allowed take, and why, that point, the 55,000 pages you know, and thats
imprecise number, because now know there were thousands
other e-mails why those e-mails, the 30,000 e-mails plus these
other ones, were not returned, were not left the State
Department when she left.
And whats the motivation for that?
Was that motivation they would not available the public?
havent been answered.
the seven witnesses, from the other evidence.
received those answers, and believe that Mrs. Clinton the
only one that can answer these questions.
These questions
Weve tried receive these answers from havent
And thats you know, she has personal you know,
neither Mrs. Clintons attorneys the State Department says
that she does not have personal knowledge about the questions
need answered.
doctrine, Mrs. Clintons attorneys
Neither say shes not available.
THE COURT:
Wait.
The apex
Well get that few minutes, the
apex mean, you dont you dont dispute that she was
high-ranking former public official?
MR. BEKESHA:
THE COURT: dont, Your Honor.
Okay.
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MR. BEKESHA:
THE COURT: mean, recognized it.
You agree that the apex line cases does
control?
MR. BEKESHA:
THE COURT: does, Your Honor.
MR. BEKESHA:
All right. agree with that.
That was one the
reasons why provided Mr. Kendall with our motion when filed
it, because also recognized the unusual and extraordinary
circumstances this case. note for the apex doctrine the State Department
isnt arguing that.
that, because she was former agency head that only the
extraordinary circumstances which should available.
lines cases there, looking more recent case
Judge Cooper FDIC matter not allowing
THE COURT:
MR. BEKESHA: that the great former officials case? think yeah, Your Honor. was
with -THE COURT:
MR. BEKESHA:
Its 2013 opinion. was with Chairman Bair and whether not
she should sit testify.
THE COURT:
MR. BEKESHA:
And the
believe is.
Only Mrs. Clintons attorneys are arguing
That was the FDIC vs. Gal n-Alvarez.
Right. that case the focus was firsthand
knowledge, personal knowledge and the only place get.
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And
believe that Mrs. Clinton, here, the only one that has this
information.
You know, the her attorneys also cited the
Cheney case.
And one the things that the Cheney court talked
about was that party didnt seek depose the chief staff
before they sought seek Vice President Cheneys deposition.
Here asked Ms. Mills the questions.
Weve asked
everybody that believe would have the relevant information.
They didnt answer those questions.
questions, thats why believe this the exception the
They could not answer those
apex doctrine.
THE COURT:
All right.
The two other categories youve
touched them Mrs. Clintons inventorying the records
upon the completion her tenure secretary.
question why thats not outside the scope discovery or,
indeed, cumulative.
What information you think Mrs. Clinton would have that
point?
MR. BEKESHA:
THE COURT:
MR. BEKESHA:
And, again,
And, you know, just raise the question: goes back the motivation.
Goes back question goes back the continuation
question throughout her term, this being the end her
term.
conducting official government business, why were those not left the State Department? the meeting with Mr. Finney, Ms. Abedin and her other aides,
Why were these records that were agency records her
Her staff that was sitting that sat
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you know, they all knew her e-mail address.
she was conducting government business this e-mail address.
They knew that government business, federal records, existed.
Why were they not put the box that needed stay?
questions not raised?
Mr. Finney:
clintonemail.com system the box thats staying, can take
those?
They all knew that
Why were
Why was the question not asked need put the e-mails from the
You know, there are questions what was the motivation
behind not inventorying those records, why not leaving them
behind?
This was four years
THE COURT:
Hasnt Mrs. Clinton stated publicly that she
thought her e-mails were caught the system sending
e-mails state.gov?
MR. BEKESHA:
She did say that, Your Honor.
The State
Department says mean, they said that wasnt official policy.
The Ms. Lang, the 30(b)(6) deponent, said doesnt really
mean anything, because you would have and search 70,000
e-mail accounts all the State Department employees.
wasnt good way, probably proper way, preserve her
e-mails.
Also, know from evidence already submitted this
Court, that Mrs. Clinton would e-mail with individuals not
their state.gov e-mail account; particular, this case,
Ms. Abedin.
And e-mails that were sent from Mrs. Clintons
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e-mail address clintonemail.com
THE COURT:
Ms. Abedin was very she was not
reluctant witness during her deposition.
MR. BEKESHA:
She was not.
She answered every question
the best her ability, and some questions she wasnt able
answer.
You know, Ms. Mills also wasnt reluctant witness.
answered the questions that she believed she was required
She
answer, and because those two testimonies, some questions
remain.
These important junctures that weve highlighted, the
beginning the term, when she was having problems, when they
were inventorying records, neither them spoke with
Mrs. Clinton about her motivations and what she was thinking.
THE COURT:
Motivation lets focus that for
second, motivation the time that Mrs. Clinton left the
Department State.
that shes returned 55,000 documents?
have been deleted.
cant.
cant doubt anyone else can forensically recover,
why isnt the motivation issue moot one, since shes
voluntarily relinquished all those documents?
Why isnt that moot, view the fact
The personal e-mails may
The FBI has attempted recover.
They tried number ways it.
MR. BEKESHA:
The FBI the FBI
Shes provided weve said before, she
self-selected documents return.
The FBI has now found some
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documents. dont know the quantity. dont know where they
came from. dont know how the FBI gathered them.
But when was here February, talked about the
system, and talked about the system because didnt believe
e-mails were deleted lost.
State Department took possession the system took possession everything the system, that would the whole universe
records, both for Mrs. Clinton and for Ms. Abedin.
that dont know. thought had the now know dont know Ms. Abedins e-mails
were searched for, dont know what records Ms. Abedins
were pulled from the server and how many thousands pages those
are.
request.
Those records would potentially responsive this also dont know the FBI was able recover all
the e-mails from the system conducting official government
business Mrs. Clinton that werent turned over.
this Court were find that the search wasnt adequate,
believe weve said before, and based the new information
from the FBI that the State Department may have other
places ensure that has complete record.
THE COURT:
MR. BEKESHA:
And
Where?
Other State Department employees, other
State Department employees that werent identified that maybe
have responsive records this case.
They may expand it.
Thats narrow universe.
Ms. Abedin, Mrs. Clinton, may have e-mailed
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another State Department employee.
reviewed that employees e-mail account.
reviewed that employees e-mail account during search for,
however would done, clintonemail.com with the asterisks,
and everything with that comes up, and then looking those
records.
The State Department hasnt
The FBI may have not because this the extraordinary case, because this
the case where the adequate search may have not been conducted,
and were still trying gather evidence that the Court can
make that determination, just want say that the Court
were determine that adequate search was not made, think
there may additional remedies, additional relief because
the extraordinary circumstances.
THE COURT:
The last area actually, the fifth area
was and think you touched upon why clintonemail.com
was not was non-archival.
Mrs. Clinton any other layperson would know what that means,
first all.
MR. BEKESHA: mean, that assumes that would, Your Honor.
But she may able answer the questions about why she chose use that system
instead G-mail, why she decided leave the ATT BlackBerry,
why she didnt use Verizon account, why she didnt use State
Department.
she may have been presented options.
know, can stand here and speculate, and can raise issues such youre right. may not the technical, but dont know.
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com you
as, did the technical person who was creating the system tell
her, can set G-mail account for you and that has
archiving?
archiving, could create brand-new system, store the
server the basement your house and that wont have
archiving.
You could use the State Department e-mail, that has
THE COURT:
And that gets into the six categories about
the details about Mr. Paglianos role creating and operating
clintonemail.com.
MR. BEKESHA:
Thats correct, Your Honor.
And so, you know, those questions can posed her, and believe she can answer those.
all the technical details, but dont know what was presented, you think was menu options the different e-mail
addresses, the different systems she could have used and she
picked one from the menu, why did she pick that one menu?
Youre right, she may not know the six issue areas all focus and back
motivation:
was operated; how was; and the purpose it; well as,
then, its impact FOIA and federal recordkeeping statutes.
The motivation; why the system was created; why
And thats all within the scope discovery.
Its
the you know, its really the three issues the four issues:
The creation; the operation; the purpose; and its impact FOIA.
And believe that the motivation falls each one, and
each these issue areas fall directly within the scope
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discovery.
havent, thats why her testimony necessary.
Weve tried get these answers elsewhere.
THE COURT: there could six questions, then, that
are highly relevant?
MR. BEKESHA:
With some follow-up, yes, Your Honor.
mean, think its always tough say theres six questions
until you you know, you see the answers, and then theres
going some follow up.
why only asked for three hours. believe its limited.
Its dont believe its
inquiry that can all day.
Mrs. Clintons time, you know, the Courts time and everything. just think theres some issue areas that need additional
information.
THE COURT: want respectful
Now, the D.C. Circuit has said least one
occasion, not and actually more than one occasion, that agency not required search every record system comply
with FOIA, and thats the Merrell line cases going back
least 1986. reasonable exhaustive search the system under their
control, why wouldnt that suffice?
MR. BEKESHA:
Because the extraordinary circumstances this case, Your Honor.
case, thats the appropriate standard.
disagree with that.
dont argue about the scope the search because those lines the normal case, the normal FOIA
Judicial Watch doesnt
Its what argue or, most instances,
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com cases, but this different.
This the first time, our knowledge, that head agency created separate system records use for
four-year period time.
one her closest advisors, the deputy chief staff, used the
system.
Not only did she use the system, but
These are the exceptional circumstances. Mrs. Clintons attorney and the State Department has
said several times their papers, you know, discovery FOIA rare, but theres exception, and this the exception.
Its the exception for why discovery was allowed.
exception why, the Court finds could find that the search
was not adequate.
necessary.
Its why additional remedies and relief may
Its because how unusual this case is.
THE COURT:
Its the
Let ask you this, Counsel. want Ill give you few minutes talk about the apex line
cases.
that, the apex line cases, including Judge Coopers opinion,
are persuasive.
Were all familiar with that.
And you dont dispute that regard, though, considering Mrs. Clintons relevant that she that Mrs. Clinton the democratic
candidate for president?
MR. BEKESHA: that that relevant?
Its relevant the extent that Judicial
Watch willing accommodate Mrs. Clinton deposition at,
you know, her convenience.
nominee. think know shes the presumptive
Were not hiding behind that.
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THE COURT:
That cuts into the apex line theory,
though, because the apex line the apex theory that
high-ranking government officials and former high-ranking
government officials should should not subjected
depositions unless there are extraordinary circumstances. far that goes, and you agree with that line there?
MR. BEKESHA:
Well, agree with that.
Thats
The guess
the fact that shes presumptive nominee, dont believe
factors into that equation.
She former head government
agency.
Thats the line cases.
Whether not its allowed not allowed, based that fact alone, where think her
status the election important and relevant. goes the other parts, which said, providing
Mr. Kendall with copy the motion when was filed;
identifying the Court that were willing take her
deposition time and place convenient her.
recognize that, but dont think factors into the legal
argument theres higher burden because that.
believe thats the case.
THE COURT: dont
Along those lines, the Court well aware,
and think counsel for the parties are indeed well aware the
recent 2nd Circuit case issued the context considering
whether the District Court had properly issued protective
order.
high-ranking government official, party must demonstrate
The Court held that, and quote, depose
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exceptional circumstances justifying the deposition.
example, that the official has unique firsthand knowledge related the litigated claims that the necessary information cannot obtained through other less burdensome means.
2nd Circuit decision, Lederman versus NYC Department Parks and
Recreation.
For
And thats why wouldnt interrogatories appropriate less
burdensome means obtain the information you state needed?
And sure that Mr. Kendall very reluctantly suggested that alternative his footnote. any discovery.
limited interrogatories.
His argument there shouldnt
But theres going be, should
Why doesnt that why doesnt that satisfy why
doesnt that route properly address this issue and provide the
plaintiff with appropriate remedy?
MR. BEKESHA: believe its not appropriate its
not appropriate this case because the follow-up questions,
because
THE COURT:
You know what your follow-ups are going be. mean, you know you know what those questions are.
MR. BEKESHA:
Well, know some them, but also
depends Mrs. Clintons answers, and -THE COURT:
Well, suppose you were given
opportunity and, again, one should read much into what
saying. have ask these questions.
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But suppose you were afforded the opportunity propound appropriate follow-up question two, depending upon
answer given you that you didnt anticipate?
MR. BEKESHA:
THE COURT: think one thing -And under the federal rules, you can ask
question and, indeed, subparts that question well.
MR. BEKESHA:
Absolutely, Your Honor.
However, you know,
its always when you ask question person and you ask
question paper, theyre very different.
THE COURT:
Why?
Why?
The persons giving the answer
under oath.
MR. BEKESHA:
The person giving the answer under oath,
but, you know, there can questions how you define terms.
There are questions about there may additional objections. can lead more arguments.
THE COURT:
There could objections questions.
Then
why wouldnt that appropriate afford Judicial Watch
opportunity propound whatever question not whatever
questions you want the rules limit propound your questions, entertain any objections, get the answers, and
theres need for supplemental, give the plaintiff the
opportunity ask supplemental follow-up questions?
MR. BEKESHA: just believe how that process plays out,
one, its probably going take more time than three-hour
deposition. think theres going
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THE COURT:
Why you think that?
MR. BEKESHA:
THE COURT:
MR. BEKESHA:
THE COURT:
Because -It will take more time for who?
Take more time, think.
You know the questions right now. told
you take the deposition right now, youd have those questions
right now.
MR. BEKESHA:
THE COURT: have most those questions, Your Honor.
Right. its not going take you three
hours, -MR. BEKESHA: would take the time for Secretary Clinton answer the questions, then for review the questions, ask
additional questions, maybe fight over paper e-mail.
THE COURT: sure the secretary appreciates your
answering that question her behalf, but the attorneys can
answer it.
take much time. just have guess that probably wouldnt
MR. BEKESHA: may not. may not, Your Honor.
our position that the best way gather evidence
deposition. very helpful.
have received lot information.
Its
where are found that depositions the seven witnesses
THE COURT: have definitely moved the ball forward.
You know, hate say
Thats big factor also.
Theres ton
information thats available now that was not available when the
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Court issued its memorandum opinion order.
report.
Mr. Comeys testimony under oath before Congress.
theres lot information under oath out there that you didnt
have.
Everyone has that.
MR. BEKESHA:
THE COURT:
MR. BEKESHA:
You have the IGs
Mr. Comeys public statements. mean,
There is, Your Honor.
The landscape has changed.
And recognize that, and recognize all
the information that weve gathered, well all the
information thats available from these other sources, but
dont believe that the motivation question these six issue
areas has been answered.
THE COURT:
How can the motivation question answered
under oath and answered fully under oath interrogatory
question?
MR. BEKESHA: could be, Your Honor. dont want
say that cant be.
THE COURT:
MR. BEKESHA:
All right. just believe there are follow-up
questions, and may lead more back and forth that may
easier resolve.
three hours, but may even shorter than that.
know.
numerous declarations that have been filed, including one
Mrs. Clinton, that has left other questions answered.
You know, say weve asked for more than just dont just believe, based how this case has proceeded, the
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And
were concerned that any wind discovery may have additional
questions that need answered and additional follow-up, and only get one opportunity follow instead two
opportunities follow up, raises all sorts issues. just think its more appropriate conduct, you know, short
deposition ask the questions, the follow-up questions, want
and hopefully receive the information need that point,
present the Court that the Court Your Honor can
rule the adequacy the search.
And
All were trying
complete the record and allow the Court have full factual
record before it.
THE COURT:
All right.
Let this. want shift gears.
Heres what
want do. the State Department and Mrs. Clintons attorneys.
what should do, though, focus the individual depositions Mr. Clarence your desire take Mr. Clarence Finneys
deposition and also Bentel?
his name?
MR. BEKESHA:
THE COURT: was going ask questions think that how you pronounce believe its Bentel.
All right.
And Mr. Bentel, because the
Department State dont think Mrs. Clintons attorneys
have raised any objections these depositions, but the
Department State opposes discovery those individuals.
think its appropriate give you chance persuade that
youre entitled depose those individuals, hear from the
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State Department.
Mrs. Clintons attorneys well.
And also have some questions for
Its 11:15, depending the glare that clock which
always difficult see, why dont this?
15-minute recess and resume again 11:30. recess, but theres need stand.
Well take
The Court will stand
(Thereupon, break was had from 11:12 a.m. until
11:39 a.m.)
THE COURT:
Lets talk about Mr. Finney for few minutes. understand it, Mr. Finney was the director the Office
Correspondence and Records the executive secretariat during
Mrs. Clintons tenure.
it, for the day-to-day records management and research
response FOIA requests.
that the evidence supports the conclusion that Mr. Finney did not
know about the clintonemail.com system. had responsibility, understand
And plaintiff, indeed, acknowledges why what would his testimony what would his
deposition reveal?
articulate all the reasons why they didnt know something.
MR. BEKESHA:
Its kind hard for someone say is, Your Honor.
You know, now that
finished the approved discovery, took step back and
looked couple different issues, and one being whose name
kept appearing all the evidence.
discussed every deposition.
responses the interrogatories
And Mr. Finneys name was
His name showed the
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THE COURT: sounds like hes been very helpful with
respect the 30(b)(6) deponent?
MR. BEKESHA:
THE COURT: was.
You know, the fact, during recess, was telephoned
the deponent for assistance answering some questions, which
fine.
MR. BEKESHA:
Yeah, absolutely, Your Honor.
And, you
know, didnt argue.
witness wasnt prepared and her testimony wasnt adequate. didnt argue that the 30(b)(6)
What saw, though, was that there was additional
information that Mr. Finney may have about discussing more
detail about the conversations had with the department when saw Mrs. Clintons photo, using BlackBerry, and then
inquired about whether not she was using State Department
State Department BlackBerry, State Department e-mail.
more conversations, more details specifically, exactly what
asked, what was told, you know, how that conversation went.
You know, had similar conversation the beginning
You know, her term, where Mr. Finney inquired with either Mr. Bentel
someone his office, about whether not she was going use State Department BlackBerry State Department e-mail.
told no.
conversation was about, who said what, and think thats all
relevant about what knew, and also what didnt know and
maybe why didnt know it. was didnt get all the details about what the
You know, did not ask the right
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questions?
straight answers?
Ms. Lang talked Mr. Finney talked any his
employees, any employees his talked him about
the her Mrs. Clintons e-mail use, and Ms. Lang said
didnt know she didnt know anybody had talked him about
any those issues.
Did ask questions and others werent giving him
Kind what knew, you know. asked
The other interesting thing the numerous times Ive
been before this Court before, was always under the assumption
that under Secretary Kennedy, was the most senior level records
management person.
system.
assumptions.
who would responsible for informing the secretary that she
should not use non state.gov e-mail account conduct
government business? Mr. Finney, and the director IRM, who was Mr. Bentel, Under Secretary Kennedy, has said that the two other
individuals that were seeking depose now were the ones who
would have approved disapproved Mrs. Clintons system. didnt know that until took the deposition would have approved not approved the
His testimony showed why shouldnt make said during his testimony that asked him
And identified the director CRM, who
Mr. Kennedy.
That also would have been outside the scope the
narrow 30(b)(6) deposition, Ms. Lang may not have been
prepared for that.
people who could have approved disapproved the system, and
But now know Mr. Finney was one two
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speak with any her aides?
maybe not about the clintonemail.com system, but about how she
was communicating with State Department employees?
Did speak with Mrs. Clinton?
Did
And, you know, was any discussion,
You know, they may have had more vague, more general
discussions, and just dont know.
guess, why wouldnt know about something, but also goes to,
what did know?
And all that goes to,
What should have known?
You know, theres testimony that there was guidance
memo for the Office the Secretariat when came FOIA, but
Mr. Finney knew his obligations.
obligations, did talk Ms. Abedin?
Ms. Mills?
processes taking place? day-to-day basis, Mrs. Clintons and Ms. Abedins e-mails? Mr. Finney knew his
You know, what was going on?
THE COURT:
Did talk
How were these
How was doing his job managing, one correct saying that
one the State Department had the responsibility for providing
FOIA information high-ranking officials?
MR. BEKESHA: think somebody had the responsibility.
was Ms. Langs testimony, believe, that one provided
guidance Ms. Abedin Ms. Abedin and Mrs. Clinton were not
trained when came FOIA.
responsible for it, just never happened, for whatever reason.
THE COURT: imagine there was somebody
Did you ever learn who that person was during
the relevant time period?
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MR. BEKESHA: believe was Mr. Finney.
Mr. Finney was
the day-to-day person responsible, the director the office
responsible for managing records when came federal
recordkeeping statutes, obligations and FOIA.
the official responsible for ensuring that State Department
records did not leave the State Department the end
Mrs. Clintons tenure.
And was also learned during Ms. Abedins testimony that there was
meeting the end Mrs. Clintons term where Mr. Finney went
through what could taken and what couldnt taken out the
State Department.
extremely detailed.
State Department BlackBerry with her, but she had any contacts photos that she took the BlackBerry, she was
allowed they were put on, you know, thumb drive
something, and she was able take the contacts and the photos. there was lot detail that was taking place.
people these meetings.
that time talked about Mrs. Clintons use e-mail conduct
government business.
Ms. Abedin testified, you know, was
She wasnt able take her e-mails her lot
And evidence those meetings
You know, did dont know, did Mr. Finney ask about
Mrs. Clintons use e-mail that point?
just all these questions, and Ms. Lang did she did good job.
You know, she answered all the questions the best her
ability.
She was very well prepared.
You know, there are
She talked lot
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individuals, and counsel for her talked lot individuals individuals counsel, but she all the testimony got was
through her filter.
this case, because weve learned was the day-to-day person
responsible for records management and FOIA for Mrs. Clinton and
Ms. Abedin, think its necessary depose him.
THE COURT:
And because Mr. Finney important
And the Court correct that
this strike that. the Court correct that the record shows that Mr. Finney
was not aware the clintonemail.com e-mail address until the
New York Times story?
MR. BEKESHA: believe thats what the record shows, Your
Honor. was the New York Times story when Mrs. Clinton returned
the e-mails the State Department.
has been that did not know about it, and -THE COURT: mean, least there was some time after. dont know the testimony far would relevant why was not aware it?
MR. BEKESHA:
Well, was told other employees, when inquired least twice about her use e-mail, specifically
what was told and probably what wasnt told, and Mr. Bentel the other piece that.
director IRM, the department that worked for the executive
secretariat.
Under Secretary Kennedy said would responsible for informing
You know, Mr. Bentel was the was the second person that under secretary
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the secretary not use non state.gov e-mail account.
Mr. Bentel did not provide any information the 30(b)(6)
witness, dont even have that testimony from him through
the filter.
director the office that would have provided Mrs. Clinton her
BlackBerry and her e-mail address. Mr. Bentel important because was the also wrote least one e-mail where identified
she used State Department BlackBerry and State Department
e-mail account, would subject FOIA.
And theres
questions for him about what knew and what didnt know.
And think, most importantly, when comes Mr. Bentel,
the finding.
THE COURT:
Mr. Finney, though, did the recognize that
there were certain institutional failures with respect
recordkeeping?
governments recognized that the independent arm the
government has recognized that there were there were problems,
and the State Department presumably working through those
problems now and correcting them, that there wont further
problems the future. why isnt that sufficient?
Why isnt that sufficient?
MR. BEKESHA: mean, the
Because still need know why those
problems happened and how they happened.
THE COURT:
MR. BEKESHA:
Didnt talk about that, though?
They talked about little bit, but, you
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know, from our perspective, everyone interviewed, everyone
that deposed, everyone that talked to, said that Mr. Finney
knew his obligations, knew his responsibility. charge records management.
Mrs. Clintons records.
is:
Mr. Finney was
Mr. Finney didnt know about
How did that happen?
And the question
How did that happen when -THE COURT:
And there, again, hes going asked
explain why didnt know something.
MR. BEKESHA:
THE COURT: could be.
Okay.
MR. BEKESHA:
But could ask questions about who
talked to, when talked them, what did they say. fuller picture, fuller record, than what have through the
filter Ms. Lang.
upon, didnt recognize the significance until read
the New York Times article.
You know,
You know, maybe these issues were touched
But maybe, you know, through questioning, well get
better sense of, you know, maybe asked specifically the
question, she using non state.gov e-mail account, and
somebody told him no.
who told him no, because that would look that would show the
motivation, potentially, the State Department.
you know, the report shows with Mr. Bentel, the found
that two employees asked Mr. Bentel about Mrs. Clintons use
non state.gov e-mail account, also very specific how
Now, the important thing there would
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That shows,
related FOIA.
And said, was approved legal counsel.
Dont ever speak about again.
Now, Mr. Finney asks that question general
question Mr. Bentel, and got that answer from Mr. Bentel,
then Mr. Bentel, director the Office the Executive
Secretariat, that shows little bit about the motivation the
State Department.
thwarting FOIA because the person that would have been
responsible said dont worry about actually, let
clarify that.
Was the State Department deliberately said, Dont speak about again. have testimony.
Theres evidence that the Office the Legal Advisor approved this system, but theres question the report that least two employees heard from
Mr. Bentel that was.
in, believe, daily meetings with the executive staff, with
Mr. now Ambassador Mull.
information.
know who they were and what extent they had such
responsibility.
And Mr. Bentel and Mr. Finney were both
They would have relevant
Theyre necessary witnesses, and just didnt
You know, identified
THE COURT:
But you knew early on, though, who Mr. Finney
was and what his responsibility was State, though, right?
MR. BEKESHA: knew, generally, that was charge
records management.
THE COURT: didnt
But you didnt
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MR. BEKESHA: didnt appreciate what that meant until started hearing the evidence.
Lewis Lukens and Stephen Mull, they were the executive
director and the executive secretariat, thought they had
more active role the management the secretarys
records. mean, when identified wasnt until started getting their testimony that
they said they werent involved all. were going were
relying the e-mails that submitted the Court our
motion for discovery.
You know, thats how identified those
people, based the evidence had that time.
they were the relevant factors.
that Mr. Mull, unfortunately since was seven years ago,
didnt remember didnt remember most the information,
why put what did e-mails.
Mr. Finney about FOIA requests related Mrs. Clinton, you know.
And Mr. Lukens just assumed the whole time that she was using
e-mail e-mail with family and friends.
were going the right places, and learned that,
unfortunately, werent. thought
You know, learned, after, didnt really speak
And thought
They didnt have all the information necessary.
some pieces it, but Mr. Finney and Mr. Bentel, being, you
know, the directors those offices that did the day-to-day IT,
that did the day-to-day records management, were the key players. said, until Under Secretary Kennedy said they would have
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They had
been responsible for approving disapproving the system, was
under the assumption that, under secretary for management,
that would have been Mr. Kennedys role.
THE COURT:
Mr. Finney still employed State.
MR. BEKESHA:
Mr. Finney still employed State, and
Mr. Bentel, believe, retired.
the 30(b)(6) witness.
THE COURT: not sure when that happened,
Lets focus Mr. Bentel for second.
served director and his title S/ES-IRM.
What does
that mean?
MR. BEKESHA: says, Office the Executive
Secretariat, and then IRM Information and Resource Management.
THE COURT:
MR. BEKESHA:
All right. hes the department within the
executive secretariat.
THE COURT:
All right.
And that office was responsible
for the information technology for Mrs. Clinton, then?
MR. BEKESHA:
THE COURT:
Yes.
The record appears suggest that Mr. Bentel
was involved with resolving any communication difficulties
Mrs. Clinton encountered with the clintonemail.com e-mail.
appears to.
The record also appears suggest knew about Mrs. Clintons
private server early March 2009.
And thats set forth the report the IG.
Now, the May 2016 OIG report concluded that Mr. Bentel
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told employees his office that Mrs. Clintons e-mail
arrangements were approved the State Department.
from the OIG report page 40.
office, S/ES-IRM, reported OIG that late 2010 they each
discussed their concerns about Secretary Clintons use
personal e-mail account separate meetings with the then
director S/ES-IRM.
concerns that information sent and received Secretary
Clintons account could contain federal records that needed quoting
Two staff members that one meeting, one staff member raised
preserved order satisfy federal recordkeeping
requirements.
And, again, this quote, According the staff
member, the director stated that the secretarys personal system
had been reviewed and approved department legal staff, and
that the matter was not discussed any further.
According and not reading everything.
According the other S/ES-IRM staff member who raised concerns about the
server, the director stated that the mission the S/ES-IRM support the secretary and instruct the staff not speak
the secretarys personal e-mail system again. Mr. Bentel note thats set forth the report
page longer works State, and apparently when
Mrs. Lang was preparing for her deposition, she reached out
Mr. Bentels attorney, who informed her that Mr. Bentel declined speak with her. dont know hes invoking any
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privileges has not.
MR. BEKESHA: mean, dont know. you? dont know invoked any privileges,
Your Honor.
THE COURT:
The governments the governments argument essentially that deposing Mr. Bentel not necessary because
nothing the record shows would have more information about
whether there was effort deliberately thwart FOIA.
the governments response memorandum page 22.
Thats
And the government State points Mr. Bentels
testimony before the select committee Benghazi where
testified, presumably under oath, that had knowledge about
why Mrs. Clinton elected use personal e-mail account
conduct official business.
Now, recognize the reply Judicial Watch, the
argument that the record contains contradictory information
about what Mr. Bentel knew and when knew it.
testified before the Benghazi committee was not aware
clintonemail.com until 2015. knew the e-mail early 2009, and think thats
reflected the report, believe. was dont know.
For example,
The record allegedly suggests that
Was interviewed for the OIG
report, you know?
MR. BEKESHA:
the talk the IG.
THE COURT: believe refused testify before
Okay.
And the report its the
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inconsistencies that youre principally concerned about?
MR. BEKESHA: is, Your Honor.
Theres evidence
that evidence shows that had direct personal knowledge
the system, and believe its important for ask him
questions about that knowledge based the evidence have. mean, you have the report talking about the two
employees.
You also have the e-mail where talked about when provided Ms. Abedin think its actually Ms. Hanley,
another aide Mrs. Clinton, provided them with State
Department e-mail address that Mrs. Clinton had created;
believe was SSHRC.
you BlackBerry and e-mail address.
paraphrasing, but thats subject FOIA.
our systems and subject FOIA.
the the evidence shows that had personal information.
didnt ask for his testimony back February March because
all the news reports out there were that didnt have any
knowledge. think his testimony important.
And that e-mail said, can get
Dont and would through seemed though had
And now that have gathered evidence that does,
THE COURT:
All right.
All right.
Anything else you want say?
MR. BEKESHA:
THE COURT:
MR. BEKESHA:
THE COURT: dont think so, Your Honor.
All right, Counsel.
Thank you very much.
Thank you.
Let hear from government counsel, starting
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with Mr. Bentel, first.
Why shouldnt deposed?
Good morning good afternoon.
MS. WOLVERTON:
How are you today?
Good afternoon, Your Honor.
All right.
Thank you.
Yes, Mr. Bentel, the Court recognized, retired from
the government service, and submit that, you know,
recognizing the Court and, believe, witness counsel
agree really what plaintiffs counsel after information
about Secretary Clintons motivation, which, have argued
our papers, believe has been thoroughly explored through the
discovery the parties have conducted, and theres reason
believe that Mr. Bentel going add anything her
motivation.
sufficient basis effectively pull Mr. Bentel out retirement deposed.
And dont think that plaintiff has presented
THE COURT:
Well, dont think they wanted that far pull him out retirement, but they want explore about,
least, the apparent inconsistencies his testimony.
MS. WOLVERTON: understand that, Your Honor.
recognize that, but again, think that given the focus that the
plaintiffs have expressed the secretarys motivation, that
its not appropriate depose him.
add that.
THE COURT:
has he? doesnt have anything
Hes not given any public statements all, testified before the Benghazi committee under oath.
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MS. WOLVERTON:
THE COURT:
MS. WOLVERTON:
THE COURT:
Thats correct.
And thats his only testimony?
Thats all that are aware of.
All right.
And other public statements.
All right.
When refused speak the OIG, did give reason?
MS. WOLVERTON: dont know.
The Office Inspector
General independent arm, and arent privy all
the information.
THE COURT:
Would that office have had the authority
demand his testimony, subpoena him, otherwise demand it,
court and get subpoena issued?
question.
MS. WOLVERTON:
THE COURT:
authority, though.
MS. WOLVERTON:
THE COURT:
MS. WOLVERTON: not think so. seems they ought have that
Its not trick dont know. dont know. bet that they would like it.
What was that? bet that the would like that
authority.
THE COURT:
Yeah. mean, you know what, when you think
about it, the any government agencys going have any
credibility with the public, seems that really should
have the authority demand compliance least make someone
invoke Constitutional privilege. mean, otherwise, you know,
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you could tell the fly kite and thats it?
MS. WOLVERTON:
THE COURT:
You know, think Mr. Bentel should deposed, think, dont disagree.
Yeah.
All right.
What about Mr. Finney?
but going give some more thought.
But Mr. Finney, not sure what else wed learn from
him.
appears, with the 30(b)(6) deponent. mean, was very helpful the extent could be,
MS. WOLVERTON:
Absolutely, Your Honor.
And Your Honor
made reference the telephone call during break the
30(b)(6) deposition where the deponent spoke Mr. Finney and
specifically asked one the questions that the plaintiff now
indicates that would like ask him directly about, but
plaintiff incorrectly, believe, indicated that there was
answer.
the staff who worked for Mr. Finney had asked the arm, the
S/ES-IRM, whether the secretary had State e-mail account.
the result that telephone call was the 30(b)(6) deponents
information that, no, staff member had done that.
Mr. Finney related.
And that was whether Mr. Finney whether any
And
Thats what plaintiff really has not identified any reason think
that Mr. Finney would have anything substantive add the
information that the 30(b)(6) witness conveyed.
recognized, she was very well prepared.
people, reviewed numerous documents and spent lot time with plaintiff
She spoke with numerous
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Mr. Finney, particular.
And Your Honor recognized,
cant explain why didnt know something.
told. simply wasnt
And maintain that for that basic reason
THE COURT:
ask; that relevant?
Well, suppose wasnt told because didnt
MS. WOLVERTON:
Well, Your Honor, dont think that
theres any reason think that would be.
You know, has
explained that did ask two occasions whether the secretary
used State e-mail account and was told no. theres
reason think that, you know, deposition him would provide
any further detail that answer.
testimony, believe.
forward anything other than its own speculation basis for
believing that Mr. Finney should deposed, and the D.C. Circuit
has recognized that speculation not ground for authorizing
discovery FOIA case.
THE COURT: would cumulative dont think that the plaintiff has put
All right.
The government the State
Departments not taking position with respect discovery
Mrs. Clinton, further discovery.
MS. WOLVERTON:
Thats correct. could come back
Mr. Finney just one more time?
THE COURT:
Yes, sure.
MS. WOLVERTON:
Thank you, Your Honor. did want also
point out that the plaintiff has incorrectly represented that
Mrs. Clinton was day-to-day contact with Mr. Finney.
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(202)354-3196 scottlyn01@aol.com might misunderstanding.
The questions during the depositions
werent very extensive that point, but the answer no,
Mr. Finney was not any regular contact, all, with the
former secretary.
set might help explain that.
sections, and the Office Correspondence and Records that
Mr. Finney was part was outside the secretarys office.
And another section was executive secretariat, the advancing
staffing section, those are the people who sat right outside
And the way that the executive secretariat
Its actually divided into two
her office, along with the executive secretary.
people that, you know, she had regular interaction with, but not
Mr. Finney, did want clear that well.
THE COURT:
Right. those are the wasnt trying give you hard way about the FBI transmitting the documents. not going
penalize you for not knowing what you dont know because one
has told you.
its probably reasonable you can tell its not for
the Court order that think you said the government will
file status report this Friday, theyre going receive
some documents this Friday?
MS. WOLVERTON: think thatd unfair that.
Yes.
But think
The FBI has told the State
Department that should have the documents Friday, not
sooner, the first batch the documents.
THE COURT:
Okay.
MS. WOLVERTON:
Its going rolling basis.
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
THE COURT:
All right. then, would unreasonable,
then, tell the State Department file report Monday,
next Monday, week from today, and every Monday thereafter?
MS. WOLVERTON:
confer
THE COURT:
MS. WOLVERTON:
Sure.
But before that, could heard few more
points -THE COURT:
MS. WOLVERTON: with colleagues the State
Department. might have opportunity
Sure. relative relevant the FBI
investigation.
The question came about whether Ms. Abedins e-mails
were recovered through the investigation, and the answer yes,
they were.
materials that will coming from the FBI the State
Department.
plaintiffs counsel raised.
And those will included the retrieved hope that should clear that question that
THE COURT:
What about the other employees?
Any other
employees who have been deposed, were their e-mails also the
subject the investigation the FBI, you know?
MS. WOLVERTON:
Thats good question, Your Honor, and not privy the details the FBI investigation.
information just relates the materials, the retrieved
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
materials, that will coming back the State Department.
THE COURT:
Right.
But since this case focused
Ms. Abedin, think thats probably the relevant point you just
made about Ms. Abedin.
talk about that.
the dont want lose sight what this case all about.
Its about Ms. Abedin.
Actually well, Ms. Abedin the focus
MS. WOLVERTON:
THE COURT: you get other materials, guess well
Correct.
All right.
And you dont know the number
e-mails regarding Ms. Abedin?
MS. WOLVERTON:
THE COURT:
MS. WOLVERTON:
No, Your Honor, this point dont.
All right. just know that they will
included, and the reason because she had the clintonemail.com
account.
employee, apart from the secretary, had address that
system.
Theres evidence that any other State Department
THE COURT:
All right.
MS. WOLVERTON:
Thank you.
And want make clear
that the FBI turning over all potential agency records
State that retrieved from clintonemail.com.
THE COURT:
Good.
All right.
Because anticipated
asking State issue subpoena, but you already reached out and
asked for the documents, correct?
MS. WOLVERTON:
Correct.
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
THE COURT:
And think you should have.
MS. WOLVERTON:
THE COURT:
MS. WOLVERTON:
Correct.
Good.
Yes.
And think that thats very
relevant all the questions that are presented the Court,
because thats the whole reason, you know, that were here, that
weve been undertaking this discovery see there any
basis for the Court issue, eventually, order that the State
somehow must undertake search the clintonemail.com e-mail
system.
And that, effectively, has already occurred.
And then Your Honor also recognized, the FBIs forensic
capabilities far exceed anything that the State Department could
do. getting all those materials back, think that actually are at, you know, just about the end point
THE COURT:
Are we?
MS. WOLVERTON:
THE COURT:
MS. WOLVERTON:
Yes. are?
Thats our best yes, yes. can move other cases docket?
Very shortly, that our position, Your
Honor.
The FBI investigation has concluded, and longer
needs retain those materials, the circumstances have
changed dramatically.
THE COURT:
MS. WOLVERTON:
THE COURT:
attorney.
Right.
All right.
Thank you.
Thank you. have few questions for Mrs. Clintons may have few follow-up questions.
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
Good morning, Counsel.
MR. KENDALL:
Good afternoon, Your Honor.
May please
the Court.
THE COURT:
Youve been very patient.
Let ask you:
Has Mrs. Clinton ever explained why she used clintonemail.com,
under oath?
MR. KENDALL:
She has explained sat there for the
hours her Benghazi testimony.
did. recollection that she have that our papers, exactly what she said.
Shes
explained many times interviews, the Website. would point out Your Honor that the exhibits weve
submitted, Exhibit her Website, which the very first
question is:
her personal e-mail account matter convenience. was with her the three-and-a-half hours she was
Why did she use it? because she opted use
interviewed the FBI.
That was under U.S.C. 2001
1001, and she addressed there, Director Comey testified
when was before the oversight committee last Thursday. the answers not going change.
Your Honor
summarized it.
was her practice while the Senate and the campaign 08,
and she just continued that practice.
that she devised for the State Department.
done. appeared matter convenience. wasnt new thing was what she had
And terms the State Department, was clearly
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
permitted and allowed.
the State did find that, gee, the question were asked, she
wouldnt have been given approval.
retrospective matter, because Secretary Powell used throughout
his tenure, question about that.
aides used it.
personal e-mail. wasnt affirmatively authorized, and
Well, think thats really
Many Secretary Rices
The department was used people using their
The first Secretary State get state.gov e-mail was
Secretary Kerry, and that was his second term office.
just was not normal for secretaries states have state.gov
e-mail.
THE COURT:
All right.
FBI Director Comey did testify
under oath, but thats thats and accept his testimony
under oath.
from her under oath.
think anyone disputes one disputes the public statements
that she used this for convenience.
perfect, and she said she had over again, shed
something different; but they want her testimony under oath.
But the plaintiffs argue that they havent heard
MR. KENDALL:
Shes made public statements, and dont
And, you know, ones
Your Honor, lawyers are great making
questions.
Theyre very ingenious. think the lawyers had
been there Mt. Sinai, Moses would have come down with not
commandments, but 10,000.
Lawyers make questions.
But thats not the relevant issue here.
THE COURT: would never let them ask 10,000 questions
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
Moses.
MR. KENDALL:
hed get there, sure.
All right.
Mr. Bekesha very ingenious,
Your Honor, the question not, are there unanswered
questions?
The flagged them.
unanswered questions.
recognized and not disputed, discovery rare.
THE COURT:
MR. KENDALL:
There are going lot
This FOIA proceeding.
This Court has
Right.
You even said its the exception, not the
rule. want discovery plan that very narrow, and Ive said that
three times.
And you said one point your February 23rd hearing,
THE COURT:
And purposely said and not including the
secretary.
MR. KENDALL:
You did, indeed, and thats why, Your Honor,
were not here writing blank slate.
speak, you would have thought, gee, were just here, this
the kind discovery conference. listen brother
They have had all the discovery they asked for.
Theyve
had seven depositions.
Theyve had interrogatory answers.
Theyve had documents from the State Department.
Honor also pointed out, since that hearing February 23rd,
there are three investigations that have significantly closed and
given the public great deal information.
investigation report May, the majority Benghazi report
And Your
The State
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
June although thats not finalized, its been played
public and then finally Director Comeys statement Tuesday,
July 5th, and then his three-and-a-half hours testimony
July 7th.
know going vindicated here. all thats the record.
The publics right
Secretary Clinton turned over record number e-mails
for any State Department secretary.
She turned over 55,000
pages.
made another point, and that the futility deposition our our brief, made our opposition,
this point. not going matter because have nothing.
over everything the FBI. matter what the former secretary says, the relief
THE COURT:
Weve turned
And, fact, Mr. Bentel
But neither the Court the public, though,
will ever know what Mrs. Clinton told the FBI.
saying that the Court should know the public should know.
That was law enforcement investigation, and its properly
protected for number reasons.
You were there, you know.
MR. KENDALL: one would ever know.
representations
THE COURT:
MR. KENDALL:
the lectern. was there.
And not was there, and can make
Can swear you in?
Your Honor, prefer this side
Thank you.
But know from Director Comey, who was asked
Representative DeSantis the following question, Was the reason
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
she set her own private server, your judgment, because she
wanted shield communications from Congress and the public?
The $64,000 question.
Director, cant say that.
And then continues, Our best information that she
set matter convenience.
her husband had, and she decided have domain that
system.
THE COURT: was existing system what would the hardship for her, given
that very for her answering that question under oath?
MR. KENDALL:
Your Honor, wouldnt hardship, but
the point is:
The one reason you authorized discovery, your narrow discovery,
was because you identified the beginning the hearing,
the central question FOIA cases, course:
conduct good faith search that reasonably likely turn
responsive documents? every document, but reasonably devised that. would not evidence intent thwart.
Did the agency
And then you said, doesnt have
You accepted Judicial Watchs allegations that here there
were questions, unanswered questions, back February, about,
you know, the operation the system.
and that discovery has been taken. evidence the central question of:
thwart FOIA?
You authorized discovery,
And theres not one scintilla anybody trying
Look, may have been the secretary recognized
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
mistake it.
there was cluelessness, negligence, oversight, but nobody set out thwart FOIA. may have been that the State Department there was reference made and think
heard Mr. Bekesha correctly.
state.gov e-mail address.
actually very different.
here.
the government and Mr. Bekesha. said she said think the e-mail that was quoting
And, Your Honor, may, have
Its the record, but for convenience, Ill give
This copy.
Its
just looking tab
THE COURT:
MR. KENDALL:
THE COURT:
Tab
MR. KENDALL:
THE COURT: you have one additional copy?
you have copy? course, Your Honor.
Thank you.
Tab please, Your Honor.
This the
Because dont want take your only oh,
MR. KENDALL:
Yes.
Thank you.
This this quick e-mail exchange. should note here, that the secretary did not have
laptop. her exchanges are often very short.
She didnt use computer.
She only used BlackBerry,
Ms. Abedin says, should talk about putting you
State e-mail.
Thats the middle e-mail. should talk about
putting you State e-mail.
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
And the response the secretary not dont want State e-mail.
She said, Lets get separate address
device, but dont want any risk the personal being
accessible.
Shes not saying, dont want separate address.
And this again, this goes this was problem with
telephone calls. you read the rest the e-mails, the ops
people were not giving the secretary direct telephone calls.
theres theres evidence her thwarting attempting thwart FOIA all.
Maybe should have been thought of, but the testimony Ms. Abedin, Ms. Mills, was, wasnt thought the time.
You know, when she took office January 09, the
world was fire.
There was financial meltdown.
There were
two wars were in.
Its very hard put that into context now.
the central question here is:
enough justify either Secretary Clinton giving deposition
even answering interrogatories?
There was lot other stuff going on. point that
Was there evidence thwart FOIA,
Now, Your Honor pointed the footnote our papers.
sai