Skip to content

Judicial Watch • JW v State transcript 01363

JW v State transcript 01363

JW v State transcript 01363

Page 1: JW v State transcript  01363

Category:

Number of Pages:87

Date Created:February 24, 2016

Date Uploaded to the Library:February 24, 2016

Tags:Reporter, Myers, honor, Transcript, Bekesha, Wallace, official, Scott, 01363, Abedin, Secretary, clinton, Obama, FBI, State Department, records, FOIA, department, Supreme Court, EPA


File Scanned for Malware

Donate now to keep these documents public!

  • demand_answers

See Generated Text   ˅

Autogenerated text from PDF

UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
JUDICIAL WATCH, INC.,
Plaintiff,
UNITED STATES DEPARTMENT
STATE,
Defendant.
Civil Action
No. 13-163
February 23, 2015
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
Paul Orfanedes, Esq.
JUDICIAL WATCH, INC.
425 Third Street, SW,
Suite 800
Washington, 20024
(202) 646-5172
Fax: (202) 646-5199
Email: Porfanedes@judicialwatch.org
Tom Fitton, Esq.
JUDICIAL WATCH, INC.
425 Third Street, SW,
Suite 800
Washington, 20024
(202) 646-5172
Fax: (202) 646-5199
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
APPEARANCES:
Cont.
For the Defendant:
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
Peter Wechsler, Trial Attorney
UNITED STATES DEPARTMENT JUSTICE
Civil Division, Federal Programs
Branch
P.O. Box 883
Benjamin Franklin Station
Washington, 20044
(202) 514-2705
Fax: (202) 514-8470
Email: Peter.wechsler@usdoj.gov
Court Reporter:
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
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, FEBRUARY 23, 2016
(10:09 a.m.)
13-1363, Judicial Watch, Inc. versus U.S. Department State.
yourselves for the record.
THE COURTROOM CLERK:
Your Honor, this Civil Action
Will parties please come forward the lectern and introduce
MR. BEKESHA:
Good morning, Your Honor. behalf Judicial Watch.
Michael Bekesha
Along with Paul Orfanedes and
Tom Fitton, president Judicial Watch.
THE COURT:
MR. MYERS:
All right.
Gentlemen, good morning.
Good morning, Your Honor. Steven Myers
from the Department Justice behalf the State Department,
and joined colleagues Marcia Berman and Peter Wexler.
THE COURT:
All right.
Good morning, everyone.
THE COURT:
All right.
Good morning.
THE COURT:
Let ask you, Counsel, before start:
MR. MYERS:
Department.
MR. MYERS:
And also, Laura Berlin from the State
Good morning, Your Honor.
you argue the case before the circuit last month?
Did
MR. MYERS:
No, Your Honor.
MR. MYERS:
Your Honor, think perhaps youre referring
THE COURT: the CEI case?
THE COURT:
You know which one referring to?
Yes.
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
MR. MYERS:
THE COURT:
No, did not.
Okay.
All right. were here today
plaintiffs motion for discovery under Rule 56(d) that was filed
plaintiffs FOIA request issue this case sought and response the governments motion for summary judgment.
The
this because its always good talk about how got this
particular point where are now, Ill give little
historical background for the record.
The FOIA request that Judicial Watch filed sought any and
all SF-50 Notification Personnel Action forms for personnel service contracts, between the Department State
Ms. Huma Abedin; any and all contracts, including but not limited
and Ms. Abedin; and any and all records regarding, concerning
related the authorization for Ms. Abedin represent
individual clients who are otherwise engaged outside
employment while employed and/or engaged contractual
relationship with the State Department.
That request was submitted State May 21st, 2013, and
sought documents from January 2010 May 21st, 2013.
systems likely containing responsive records:
The
government [sic] identified the following offices and record
The Bureau
Human Resources; the Office the Executive Secretariat; the
Office the Legal Advisor; and the Central Foreign Policy
Records.
And all this set forth the governments
memorandum, supplemental memorandum filed.
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
The Department State produced eight nonexempt records Judicial Watch and the case was dismissed by, believe, June 2015, following and need some more
consent the parties.
information about this Ill call the revelation the her staff.
Clintonemail.com e-mail and server used Mrs. Clinton and some
The parties agreed reopen the case, and thats
set forth minute order dated June 19th, 2015.
And that word revelation may not appropriate, because
one the big questions whether not the government knew
e-mail address and server.
about this system for the former secretary use private
And its hard-pressed find
that the government didnt know, one the big questions is:
Why did take until 2015 for the government realize that
there were additional agency records available that had not been
previously produced the plaintiff?
and the parties can elaborate that. any event, June June 2015, following that hate use the word
revelation because dont think thats appropriate, but
issued order allowing the case reopened, and the parties
June two thousand June June 19th, 2015, the Court
can pick from there.
Why did take two years for the parties realize that
there were additional materials and, indeed, additional offices search?
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
The State Department requested, the Courts request,
collected, and searched potential agency records that were
also researched the four offices originally searched the
produced Mrs. Clinton, Ms. Abedin and Ms. Mills.
The State
Office the Under Secretary for Management, this time with
search terms agreed upon Judicial Watch and State.
And maybe
thats the reason those search terms have not been used the
past. just dont know, but its interesting question need get answer to.
State produced the following: documents consisting pages September the 18th last year; four documents
re-release three documents November the 12th, 2015; and
consisting pages October the 13th last year;
release two documents full and re-released part one
document previously withheld November the 13th, 2015.
The State withheld two documents full from its November
13, 2015, release pursuant FOIA exemption
challenges the withholding those documents, along with the
are two OGE Form 450s.
Those documents
And the plaintiff, Judicial Watch,
adequacy States search. the purpose this hearing hear for the
Court get answers with respect the only issue before the granted not.
Court, and that whether not the motion for discovery should
The previously filed motion for summary
judgment the government has been stayed the Court, without
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
objections from the parties, the way.
ago, many weeks ago, filed its motion for summary judgment
yet filed declaration yesterday disclosing that there had been
Its very interesting, also, the government some weeks
defending the adequacy its search for responsive documents,
additional searches that had not produced any responsive
documents but certainly raises questions about the adequacy
the search that the government had defended some three four
weeks ago. query for that reason whether the motion can denied just outright, but well get that.
The following question must answered: there
genuine issue material fact that can only resolved through
conducted search reasonably calculated uncover all relevant evidentiary hearing regard whether the State Department
records?
And answering that question, course, will
focus D.C. Circuit authority and authority from this Court and
maybe some own authority set forth opinions Ive issued the past.
But with respect what just said, focusing the
genuine issue, the Court references Asarco, Inc. versus U.S.
Court opinion, 2009, noting that discovery FOIA cases
Environmental Protection Agency, 2009 1138830, District
rare and Ill supply own emphasis there rare and only
permitted when there genuine issue material fact that
requires evidentiary hearing resolved.
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
Thats the big question:
What that genuine issue
material fact here?
doubt, end quote, that conducted search reasonably
upon Asarco and which quotes Weisberg, the 1983 decision from
The defending agency must show, quote, beyond any material
calculated uncover all relevant documents.
Again, relying
our circuit, Weisberg versus Department Justice, 705 F.2d
1344.
The adequacy agency search for responsive records
measured by, quote, the reasonableness the effort light
the specific request, end quote.
Again, relying upon authority
from the District Court and the Circuit Court, McKinley versus
FDIC, 807 F.Supp.2d District Court opinion issued 2011
which quotes Larson versus Department State, 565 F.3d, 857,
D.C. Circuit 2009 opinion.
Discovery, our circuit has said and colleagues have
said, discovery the exception, not the rule, FOIA cases.
F.Supp.2d 114.
Again, relying District Court authority, Thomas FDA, 587
And have doubt this the wrong number, but sorry rude, but cant imagine anyone calling me.
The discovery, said, the exception, not the rule, FOIA cases, set forth another District Court opinion.
important, probably especially the FOIA areas, because
And the reason why the District Court opinions are very
oftentimes theres appeal.
labyrinth these FOIA cases. guide each other through the
Thats the decision issued one
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com colleagues, 582 F.Supp.2d 114.
sufficient question the agencys good faith processing
Quote, the major exception this limited scope discovery when the plaintiff raises
the documents; such instances, discovery has been permitted.
And have series asterisks because thats what
said some years ago the case Citizens for Responsibility opinion there was appeal that case.
and Ethics Washington versus Department Justice.
There was
Its its
cited 518964, the District Court Docket Number
05-cv-2078, and the Court allowed discovery where the government
acted with extreme delay.
Court.
That was the only issue before the
One colleagues opinion another one
colleagues opinion thats extremely informative, think was
959 F.Supp.2d 175, wherein Judge Lamberth permitted discovery Judge Lamberth opinion, Landmark Legal Foundation versus EPA,
the question whether senior administrators used personal
e-mails notice the voice inflection personal e-mails for
official business and whether the EPA excluded key officials from
their initial search.
Now, have some questions for the plaintiff first, and
then Ill have some questions for the defendant.
ask plaintiffs counsel because want you respond well. want defense
counsel pay careful attention the questions going
may not ask each and every question the order which
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
asking plaintiffs counsel, but that does not mean that dont
want your input. do.
Plaintiffs counsel states that the issue whether State
conducted search reasonably calculated uncover all relevant
admissible evidence about whether the State Department and the
records, and that you need discovery order uncover
former secretary deliberately thwarted FOIA.
You also seek
discovery the Clintonemail.com system to, quote, determine
possible methods for recovering whatever responsive records may
exist.
And thats Mr. Bekeshas declaration, counsels
declaration, Docket Number 48-1.
Ill start with the later point first, Counsel.
What
authority exists for this Court order third party produce
when say you, your client.
the physical server you for your own forensic inspection?
And when say third
party, actually would not the former secretary.
And
understanding the from press reports, from other
knowledge, understanding that the servers the
possession control now the FBI. fact.
But dont know that
Thats just understanding from media reports.
But you dont really discuss this your briefs, but its set
forth your declarations, whats your answer?
MR. BEKESHA:
Thank you, Your Honor.
First off, were not
asking for the third parties turn the system records over client, Judicial Watch.
Were asking that turned
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
over the State Department that the State Department can
conduct the search should have conducted originally.
THE COURT:
All right.
Turned over when?
Whenever the what point time?
would require court order, which point, this Court
that the the extent the system exists, copies the
MR. BEKESHA:
When its appropriate.
Arguably probably
determines that adequate search was not conducted, believe
system archive the system exists, should turned
over the State Department conduct the searches.
But one the reasons why ask for discovery
determine the system does still exist and where that system
exist anymore, may become moot point.
is, where the records are this time.
THE COURT: the extent doesnt
Were talking about it.
Just what it?
What are talking about?
the is.
Ms. Abedin conduct official government business for four
MR. BEKESHA:
Unfortunately, dont know physically what would the system records, the
Clintonemail.com system that was used Mrs. Clinton and
years.
drive. could physical server. could thumb this point could DVD that has the entire
system it.
THE COURT:
MR. BEKESHA: could telephone. could anything, yes, Your Honor.
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
dont know.
THE COURT:
MR. BEKESHA: what would the language the order say?
Well, think the first thing that would
helpful would conduct limited discovery find out how
more precise. exists, where exists.
That way the Courts order could
Without that discovery, could imagine the Court
could order the State Department collect, gather, seize,
the system records whatever form currently resides.
THE COURT:
But hasnt the government done that?
The
government requested that Mrs. Clinton turn over all agency
so, and she signed declaration under penalty perjury.
records the government, and understanding that she did
isnt that sufficient?
MR. BEKESHA:
Unfortunately, Mrs. Clinton didnt sign
declaration that stated she turned over all records.
that all records have been returned.
Why
She stated
that she directed all records returned, and its her belief
She doesnt actually say
under oath that all records have been returned.
And one the
arguments make our briefs that was improper for
nongovernment employee self-select the records for the State
Department review.
All the regulations, the statute,
envisions government employees search their records
review their records and determine whether not those records
are personal theyre federal records. this case. this case
That didnt happen
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
THE COURT:
Well, suppose the Court were direct the
government issue subpoena her saying turn over all and
them all over.
Ill explain what the records are within five days, just turn
Would that why wouldnt that adequate?
MR. BEKESHA:
That could be, Your Honor. its turn
over the system records that had Mrs. Clintons because
records because both them were conducting
its not only Mrs. Clintons records, but also Ms. Abedins
THE COURT:
MR. BEKESHA:
Right.
What about subpoenas both them? think that would completely
appropriate, Your Honor, and think that would
subpoenas the former secretary and Ms. Abedin, essentially,
possession and control.
THE COURT: other words, direct the government issue
saying later than, turn over all agency records your
MR. BEKESHA: think the problem, and where the struggle
is, using the term agency records, requires those two
federal record and whats personal record.
individuals that are not government employees decide whats
appropriate
THE COURT:
The more
The agency records dont lose their character agency records just because employee takes them home,
though, they?
MR. BEKESHA:
THE COURT:
They dont, Your Honor, but think lets talk about that for second.
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
lets assume that all the agency records were housed the
constructive control the government, are they not?
former secretarys home.
MR. BEKESHA:
THE COURT:
Theyre still agency records under the
Thats correct, Your Honor. think
Essentially the government would saying,
Give our records back.
our belief and its our argument that that point, that
MR. BEKESHA:
That would correct, Your Honor.
But its
order was issued, that Mrs. Clinton and Ms. Abedin would have
turn over all the records from that system.
THE COURT:
Well, why would they treated any
differently than, say, employee?
and maybe you cant answer this, but the government will have
Lets assume that the former
secretary still the secretary and the FOIA request comes -answer whats the process then for the current secretary
determine what records should produced pursuant FOIA
request? dont buy this notion that secretary any government
office, Secretary State, Defense, any other, sitting
not.
computer screen determining this official record, this dont buy that.
Its been suggested the government. dont buy that any stretch the imagination.
doesnt happen.
That simply think there are probably FOIA compliance
officers and specialists who probably have that
responsibility, but dont know for fact.
What you know?
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
MR. BEKESHA: believe thats correct well. agree
with you, Your Honor, that most likely any secretary doesnt
FOIA request, whats personal.
review his her records determine whats responsive
THE COURT:
Well, maybe some point.
Maybe some
point goes on. its mass bulk, its master request, probably not.
MR. BEKESHA:
And some point possibly, but, you know,
what the important issue is, youve said, its FOIA
But
specialist specialist that would conduct the search.
THE COURT:
MR. BEKESHA:
Pursuant search words.
Pursuant search words. wouldnt
the personal attorney the sitting secretary comes into the
conducts the search.
State Department and comes into the Defense Department and would somebody that responsible
and has obligations the government.
You know, another way look this is, Mrs. Clinton
returned approximately 55,000 pages records, which point
records and determined that approximately 2,000 those pages
the State Department and the National Archives reviewed all those
were personal and werent agency records.
appropriate route. believe thats the
All records should returned from the
system, and then archives the State Department would review determine this really personal, this really agency
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
record.
the circumstances were for the return the 55,000 documents,
than the process for the return the very few documents here?
THE COURT:
That case not before me. dont know what
but are you suggesting that that process was somewhat different
MR. BEKESHA:
part the 55,000.
THE COURT:
MR. BEKESHA:
The documents that were returned here were see, right.
And the State Department then conducted
search the 55,000 pages.
been completed then, all the documents have been turned over.
attorneys, not the State Department the National Archives.
the State Department.
THE COURT:
Well, then arguably the process has already
MR. BEKESHA:
But self-selected Mrs. Clintons personal
There was approximately 50,000 pages that were not returned
Its our belief, its our assertion, that
the law clear that those 50,000 pages should have been
returned well, and that the State Department and the National
Archives should have reviewed those records and made the
determinations.
And the reason is, because Mrs. Clinton
longer Secretary State. she was Secretary State
currently, her advisors, people, FOIA specialists, would
able search those records.
Mrs. Clinton herself, sitting
secretary and government employee, would able review the
records herself and determine whats agency record and whats
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com personal record.
But shes not government employee anymore, theres difference.
You know, another example discussed our brief -THE COURT:
Wouldnt the employee have some discretion
over least looking the compilation e-mails, say, for
authority exclude those from the view the specialist?
instance, and determine that these are all personal, and have the
MR. BEKESHA:
Yes, Your Honor, but that would take place
when theyre government employee, not after they have -theyre longer government employee.
For example, Ms. Abedin and Ms. Mills, addition
using their nonstate.gov e-mail accounts, they also used
they were supposed to, and those records were system records
state.gov e-mail accounts. they used the government system
that were searched this case.
And records were searched,
reviewed, and produced Judicial Watch.
Now, Ms. Mills its our understanding that the State
Department didnt pick the phone and call Ms. Mills and
them, Ms. Mills, could you come back the State Department,
Ms. Abedin, who are longer State Department employees, and ask
review your e-mails and make determination theyre federal
records theyre personal records?
they didnt that.
Its our understanding
And its our belief that they didnt
that because its not appropriate because they are longer
government employees.
They longer have the right
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
obligation review their records and determine theyre
federal records personal records. Ms. Abedin and Mrs. Clinton, when they were office,
had the right review their records, had the right designate
those records.
certain records personal records, had the right even delete
But that right longer theirs, and
longer exists because theyre longer federal government
employees.
And because that, the whole system records, all
the e-mails that were sent this system, must reviewed
either the State Department, the archives, someone else thats the Federal Government.
THE COURT:
So, then, your suggestion the Court would
be:
records maintained subpoena may address the issue, but the subpoena should
not just refer all agency records, should refer all
MR. BEKESHA:
All records maintained the system for
Ms. Abedin and Mrs. Clinton, the extent -THE COURT:
MR. BEKESHA:
And returned the government.
And returned the government conduct
the appropriate search and the appropriate review.
FOIA process.
And then
those records would search reviewed, through the normal
And once thats complete, the records, the
extent there are any, will produced Judicial Watch will withheld under any the FOIA exemptions.
THE COURT:
Now, there any precise authority for that
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
request, for the issuance subpoena that would that broad?
little bit.
MR. BEKESHA:
THE COURT:
MR. BEKESHA: think Judge Lamberth talked about the Landmark case? the Judicial Watch versus Department
Commerce case, which cited.
Watch, requestor, knew what record was limited set would say its probably not
broad this request, but that case the plaintiff, Judicial
records they were asking for. was very tangible.
Unfortunately, this case, because Mrs. Clinton and
Ms. Abedin didnt take records with them, they took system
principles apply, Your Honor.
records with them, its little bit different, but the same
THE COURT:
What about the Judge Boasberg opinion?
Did
you argue that case, the the Kerry case?
it.
Watch versus Kerry, 15-785.
Records Act which somewhat different requesting the
MR. BEKESHA:
THE COURT: did not, Your Honor, but familiar with
All right.
And referring Judicial
Judge colleague found that the
State Department fulfilled its obligations under the Federal
former secretary return the records her possession, which what this Court did.
That case appeal.
its what kind track on?
MR. BEKESHA: not sure
The regular track, Your Honor.
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
THE COURT:
The regular track.
All right.
Why shouldnt this Court stay this matter until gets
some guidance from the circuit that case?
that case whats issue, what Judicial Watch the relief
Archives and the Attorney General and ask them initiate
MR. BEKESHA: think that case very different.
sought was for the State Department contact the National
proceedings.
THE COURT:
MR. BEKESHA: retrieve the documents, correct?
Potentially, Your Honor.
Federal Records Act limited. with the Attorney General.
But, you know, the Judicial Watch, order
the Court, could only require the State Department discuss
The case itself would have
binding precedent, and wouldnt bound the Justice
Department wouldnt bound.
The Justice Department, even
though they were requested proceed the State Department,
isnt required take any additional steps.
So, you know, that
case very limited what the potential remedy is.
THE COURT: other words, the Court was limited
did the Court order did the Court request the government
take steps retrieve those records?
MR. BEKESHA:
The Court decided that case that the
State Department based lot what your previous orders
sufficient.
this case were, that what the State Department did was looked the
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
THE COURT:
Did Judge Boasberg follow what this Court did?
Did mention that all?
what this Court did.
and were ordered with respect Ms. Mills and Ms. Abedin and
MR. BEKESHA: not sure specifically mentioned
But talked about Mrs. Clintons
declaration, about the letters that were submitted this case
Mrs. Clinton. not sure used the language referring this case, but following the opinion, its clear that
believed that the State Department satisfied their obligation
the Federal Records Act case based lot and primarily what
had transpired this case.
THE COURT: theres doubt your mind, Judicial
Watchs mind, that those agency records retained character
Department State?
agency records, even though they were housed outside the
MR. BEKESHA:
Absolutely, Your Honor. believe that
this was off-grid system, but was still system part -THE COURT:
MR. BEKESHA: sorry, was what?
Off-grid. was parallel system the
state.gov system, but was still system being used the
head the agency and least one her closest advisors.
THE COURT:
Was that fairly unique?
Was limited
this type system, was that limited the former secretary and
Mrs. Abedin, you know?
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
MR. BEKESHA: dont know specifically.
This Court
asked because the three individuals issue this case
Mrs. Clinton identify Ms. Abedin and Ms. Mills used the
Mrs. Clinton, Ms. Abedin, and Ms. Mills.
system.
This Court asked
Mrs. Clinton said that Ms. Abedin did, Ms. Mills didnt.
But the Court, because wasnt before, didnt ask the broader
question of:
system?
Were any other State Department employees using the Mrs. Clinton didnt answer that question.
asked her, dont know. wasnt
But know her deputy chief
staff, Ms. Abedin, did use the system, based another FOIA
request have from all Ms. Abedins records. know
theres approximately 28,000 pages that she returned the State
Department after the Court ordered it, know she used that
system substantially well.
THE COURT:
Suppose the Court and the Courts inclined this, direct the government issue subpoena the
three individuals.
Suppose the government does that and orders that the
individuals return all records the Department State soon they can. possible, and the three individuals say that they will soon that sufficient?
MR. BEKESHA:
Under that original order, yes.
There may some issues there about the subpoena jurisdiction this Court
could have.
THE COURT:
Such as?
Tell now before get out
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
limb.
parties are going respond.
What issues?
MR. BEKESHA:
THE COURT:
MR. BEKESHA:
Well, mean, dont know how three
You would hope that
Well, they all have lawyers.
You would hope that the three lawyers, since
they all three believe least two them, Ms. Mills and
understand what subpoena and appropriately respond it.
Mrs. Clintons lawyer, Ms. Abedin may not be, but they would
Mrs. Clinton still has
see
THE COURT:
MR. BEKESHA:
THE COURT:
Ive been wrestling with that.
Mrs. Clinton still has
Let speak.
Ive been wrestling with that. dont see what the impediment is.
saying return our records. just dont
Ill hear from government
counsel about just directing the government issue subpoena
Return all the records can
determine, under the circumstances, since created this system
for you and thats your allegation well, correct?
MR. BEKESHA:
THE COURT:
Yes, Your Honor, and believe
The government created this system enable off-site server house information.
think its clear that the government fact, the system was
adjectives. not adding any not casting any aspersions this point, but
created before the former secretary was sworn in, correct?
MR. BEKESHA: was created eight days before she was
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
sworn the day that her confirmation hearing started.
former system the system issue was created the
going use words accommodate thwart.
THE COURT: especially under scenario where the
government and, again, not casting aspersions.
that.
guess, transmittal and receipt agency records and other
records off-site virtue off-site server.
Especially under that scenario, why shouldnt the government
required say, return all the records that allowed you
possess and control, jointly with us.
right know. simple that?
MR. BEKESHA:
Yes, Your Honor, that would entirely
appropriate, and believe the Court should enter such order.
THE COURT:
MR. BEKESHA: error there? error there. also believe that
point discovery, you know, although theres some issues about the
processing, but -THE COURT:
Thats all the court can under the
government knows more, dont know.
Give our records back.
Give everything back can determine what the public has
circumstances. not using was created, and had the effect enabling the, not mean, lets assume that and, again, just
relying upon media reports like everyone else.
Maybe the
But assume that theres
some sort investigation going on, correct?
MR. BEKESHA: believe so, but
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
THE COURT:
MR. BEKESHA:
But who knows. dont know exactly what the
investigation is, how long could happen.
subpoena will have the effect informing the Court and the
documents, well happy turn them over.
THE COURT: least
public that dont have the documents, that they dont have the
MR. BEKESHA:
There investigation.
THE COURT:
MR. BEKESHA:
that point
THE COURT:
MR. BEKESHA:
Its simple that, Your Honor, yes.
And youd satisfied with that, correct? would be, Your Honor, yes. mean, additional request? all the records are turned the
entire systems turned over and
that?
received the Clintonemail.com server for Ms. Abedin and
Ms. Abedin self-select records returned.
THE COURT:
When you say system, what you mean
That word used lot.
MR. BEKESHA:
Mrs. Clinton.
All the records that were sent and
What were not looking for for Mrs. Clinton and
And thats why just use system because was system records, but its
all records that were sent and received the Clintonemail.com
server for the four years -THE COURT:
Well, suppose then, though, that the employees
push back and say, Look, understand that have
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
obligation turn over official records, and far were
all the official records and everything else personal.
concerned, each one says turned over all the other records and
isnt that sufficient?
Why
Because the former secretary were the
current secretary, think she would have the right that,
wouldnt she?
MR. BEKESHA:
have that right.
THE COURT: she was the current secretary, she would
Well, why should she treated differently,
then?
anymore.
American people
MR. BEKESHA:
Because shes not government employee
The regulations, the statutes, and the laws, they dont
apply her.
She has obligation the government the
THE COURT:
But she has obligation return government
files the government.
MR. BEKESHA:
THE COURT:
She does, but its dont care what you know, shes
former employee current employee, the government records
records may off-site they arent the possession and
dont understand theres case law that says that, you know,
control. understand that.
Nevertheless, they dont lose their
character government records.
And theres also case law that
talks about constructive control agency records that are
housed off premises.
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
MR. BEKESHA:
Yes, Your Honor.
And just believe its
important this case have all the records returned and
federal records and whats personal records.
let the State Department and National Archives determine whats
THE COURT:
Right.
Youre not suggesting all know
youd like pour over everything, but youre not suggesting
that they turned over the plaintiff?
MR. BEKESHA:
THE COURT:
MR. BEKESHA:
No, Your Honor.
Right. mean, what would like for all the
records, all the e-mails sent and received Ms. Abedin and
addresses for the four years, turned over the State
Mrs. Mills the Clintonemail.com system server, e-mail
Department that the State Department can process the records though this any normal, any other FOIA request.
THE COURT:
Now, that request driven the
circumstances surrounding the creation the system not?
all the e-mails whatever thumb drive and just taken that.
mean, suppose the former secretary had just resigned and copied
Same request?
MR. BEKESHA:
Well, depends.
Did she copy over
the thumb drive, did she take all them, did she leave
copy still residing the State Department?
THE COURT:
Well, she took everything because there was copy the State Department wouldnt having this
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
discussion now, right? was asking.
resigns, and then shes turned the lights off.
home with her.
MR. BEKESHA:
THE COURT: wasnt sure your hypothetical, what
Yeah. think the hypothetical she
everything the thumb drive.
now.
MR. BEKESHA:
Okay.
Theres copy.
She copies
She takes
You know, thats not the case have
Because the creation, the use -THE COURT:
All right. everything goes back the
creation?
she left with the records.
you know, shes turned the lights off.
any system for housing e-mail system off-site, why would the
MR. BEKESHA:
THE COURT:
goes home.
The creation and the use during and how
All right.
Lets assume, though, that she -She copies them.
She
Nothing questions raised about the creation
analysis different, then?
MR. BEKESHA: part this because part what
she what Mrs. Clinton did when she removed the records.
Department reviewed what she was taking with her.
State Department theres information that the State
The
They were
supposed conduct inventory under their own regulations
the records.
None that took place.
that was created when she took office. you have this system
She used the system.
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
You know, you said earlier, the revelation, that was
completely Judicial Watch and the public.
Department, throughout her four years, senior-level management think its clear
from all the e-mails submitted Your Honor that the State
individuals knew the system, helped create, helped manage the
system.
THE COURT: what happened let ask you.
stop you for second.
What happened when this case was closed?
Let
Was there snafu there, breakdown communications, what?
happened was the agency informed Judicial Watch letter that
before this Court, took the government its word, that
MR. BEKESHA:
There was breakdown, Your Honor.
conducted search.
What
Judicial Watch, many cases
sufficient search -THE COURT:
Well, everyone should able take the
government its word. that time that was appropriate.
York Times article that there was this other record system,
MR. BEKESHA:
Thats correct, Your Honor, and thought
Most the time
believe thats appropriate; however, found out then the New
parallel system for Mrs. Clinton and Ms. Abedin -THE COURT:
Did the government claim was unaware
that parallel system?
MR. BEKESHA:
They havent answered that question.
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
believe their brief
during discovery?
thats one the questions raise our motion asked,
THE COURT:
MR. BEKESHA: that relevant question answered believe thats important.
because how the FOIA processing works based the -THE COURT: but for the New York Times would not
carrying this discussion today?
MR. BEKESHA:
Thats correct, Your Honor.
this system from the American public, and werent for -THE COURT:
Well, thats your word. staying away from any adjectives
Times
The government
and Mrs. Clinton did very good job six years concealing believe
MR. BEKESHA:
Sure. not not
Yes, Your Honor, the New York
THE COURT: adverbs anything else, yeah.
THE COURT: sounds like the New York Times did good
MR. BEKESHA:
The New York Times wrote piece about
job, too, though, right?
probably wouldnt here werent for them.
any aspersions all the system that was created.
that the Court will consider may consider determining
MR. BEKESHA:
THE COURT: sounds like they did, Your Honor.
No. want careful. not casting mean,
its fact that there was system created, and thats issue
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
discovery and, indeed, the scope discovery. few minutes because you used the word thwart
But dont think
its appropriate consider actually, well talk about that
MR. BEKESHA:
THE COURT:
Yes, Your Honor. your request.
Before get that, let ask you this, though:
Why
shouldnt the Court was very interesting argument last
Office Science and Technology, and its FOIA case where the
month the case Competitive Enterprise Institute Versus
circuits considering whether the District Court properly
dismissed the case motion dismiss.
The plaintiffs allege
that the director the Office Science and Technology used
his personal e-mail for official government business. seems that the circuit will have something say
about the framework for considering when agency has
that used for government purposes, whether the government has
constructive control over individuals personal e-mail system
the power search the e-mail whether request the
government employee produce any potential agency records and
their personal e-mail sufficient.
Why wouldnt that case relevant this case?
you think is, why shouldnt the Court hold off?
for while?
argument was mid-January.
MR. BEKESHA:
And mean, the
Why shouldnt the Court hold off
Its very different case, Your Honor.
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
With respect the CEI case and that one individual, was
university something, wasnt G-mail AOL Yahoo!,
using personal e-mail.
but was
THE COURT: was using, believe, was through wasnt the former secretary using
personal e-mail well?
she was using the State Department, know through
MR. BEKESHA:
She was using Clintonemail.com system, but
declarations, didnt provide her with official e-mail address.
They didnt provide her with computer, BlackBerry, laptop, iPad iPhone conduct her e-mail.
THE COURT: the question is:
e-mail system, then?
allowing her use this system.
maintain, use the system.
MR. BEKESHA:
They
Why isnt that personal
Because the State Department was implicit fact, provided limited
evidence that shows that State Department employees help manage,
And there was the head the agency.
For all intents and purposes, the system was agency system. was just parallel the normal course. understand that government employees, even secretaries,
may use personal e-mail address here, there, because theyre
getting connected the governments system.
vacation, theyre out-of-pocket, you know, there are difficulties
THE COURT:
Was the government receiving copies all
e-mails state.gov?
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
MR. BEKESHA: the extent e-mails went state.gov, the
State Department would have those records, Your Honor. ask early for the former secretary return
THE COURT:
documents?
MR. BEKESHA:
Then why was there need for the government think there are two reasons for that:
One, based some reports, the State Department isnt the was sent state.gov e-mail account, may not have been
best maintaining their own system records.
captured and archived appropriately.
THE COURT:
And so, even
But the second issue
But that was that would also another
reason that counsels favor subpoena, then, make sure
that all documents are returned.
MR. BEKESHA:
THE COURT:
Yes, Your Honor.
Did the government request the return all
documents agency records agency e-mails?
what they believe what the individuals believed were federal
MR. BEKESHA:
records.
THE COURT:
MR. BEKESHA:
They believe they asked for federal
Right.
You know, the other reason why its
important and why the State Department may not have all records
other agencies, which would not the state.gov system. because Mrs. Clinton also communicated with secretaries
communicated with foreign leaders.
That wouldnt have
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
She
state.gov e-mail account.
between her and President Obama, and those records would not also know that theres
approximately pages, believe its approximately nine e-mails the state.gov system. the extent she was communicating with her
assistants, with her staff, yes, lot those records may
archives, managed their records.
the State Department system the State Department kept good
But then theres also all
these different records that would not captured the
state.gov system.
And of, you know, even more relevant
importance this case know that Ms. Mills used
nonstate.gov e-mail account certain times. know that
Ms. Abedin used e-mail address the Clintonemail.com system. communications between Mrs. Clinton and Ms. Abedin where
theyre both using Clintonemail.com e-mail addresses, the State
Department would not have those records their possession.
THE COURT:
Ms. Abedin has not signed declaration that
she has returned all
order, her attorney sent letter the State Department.
her.
ask.
MR. BEKESHA:
THE COURT:
MR. BEKESHA:
THE COURT:
Thats correct.
Right. response your court
Well, really wasnt order was order the State Department
All right.
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
MR. BEKESHA:
THE COURT:
from her?
MR. BEKESHA:
THE COURT:
Thats correct, Your Honor. have nothing have declaration
Thats correct.
Ms. Mills, would that serve any purpose
have declaration from her?
bit different because she wasnt she didnt have e-mail
MR. BEKESHA:
You know, Ms. Mills situations little
address the Clintonemail.com server. believe its
important for the State Department recover all the
records from her, but its little bit different argument. that case its more like the CEI case, and less what
have issue with Mrs. Clinton and Ms. Abedin using this
government you know, this parallel system records.
THE COURT: the theory that thered harm
asking you have any federal records, return them State.
Ms. Mills, because she was using and dont know what her
G-mail but were not sure.
MR. BEKESHA:
Thats correct.
personal e-mail system she was using.
And with respect think may have been
You know, because she was using that
system, there isnt this wouldnt appropriate for the
Court order her return all her e-mails her personal
system for the State Department review, only those she
believes federal records; whereas, from the
Clintonemail.com system, you know, all those records are
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
potentially agency records because they were sent this
managed, maintained for the four years Mrs. Clinton and
separate system that was created, used for the four years that
Ms. Abedin were office.
And thats why believe
believe that CEI, that case little bit different.
more like Ms. Mills and less like Mrs. Clinton and Ms. Abedin.
And thats why are really focusing here today and our
motion the Clintonemail.com system that Mrs. Clinton and
Ms. Abedin used and less focus Ms. Millss use her
G-mail account; because really want focus what
believe should the agencys possession.
THE COURT:
Let ask you this:
The use the word
thwart, and, again, want the record clear:
was created. looks
This Courts not
casting any aspersions all the manner which the system
Suffice say the system was created.
there, and thats all Ill say about it. was
But youve used the word thwart, and you say that you
need discovery explore whether Mrs. Clinton and the State
establishment used the concealment Clintonemail.com.
Department sought deliberately thwart FOIA through the
Discovery that issue cant stand alone, though, can it?
MR. BEKESHA:
that
THE COURT:
MR. BEKESHA: believe could, Your Honor.
Under what authority? mean,
What authority?
That would the Landmark case.
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
THE COURT:
MR. BEKESHA:
Judge Lamberths case?
Judge Lamberth.
You know, Judge Lamberth
looked the evidence and said, you know, They were using this not sure why the system why they were using these
other e-mail system, were not sure not sure, dont want
other personal e-mail accounts. could have been prevent access those e-mails under
FOIA.
And ordered discovery try figure out,
essentially, why these agency officials were using the separate
system, and
THE COURT:
Were you involved that case?
THE COURT:
Was discovery planned?
MR. BEKESHA: could have been accident
MR. BEKESHA: was not, Your Honor. just dont recall.
You know, believe there was something
limited.
discovery, but just wondering just havent had chance
The question was limited focus.
THE COURT: believe his opinion did order determine whether not there was plan.
that.
MR. BEKESHA:
THE COURT:
MR. BEKESHA: not sure, Your Honor. have check
Yeah.
But, you know, thats where, you know,
our discussion of, you know, reasonable suspicion, you know,
whats already public.
lot the evidence seems suggest theres thwarting because
But because its FOIA case, because
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
there hasnt been discovery, have limited admissible evidence.
information that could make argument this Court with
And part our motion for discovery was collect that
admissible evidence and not just relying newspaper articles,
letters that were ran other cases.
THE COURT:
Let ask you this:
Based everything that
the Court knows, considering all the declarations and maybe
instance, January there was statement filed government
the Court will order some more declarations determine.
For
counsel that additional offices had searched, maybe more declaration determine why wasnt that learned earlier, what
happened.
You know, other words, crossing the and
depositing the Is, what, where, when and why.
The declaration
that was submitted just basically said there were additional
offices, searched them, additional information, searched,
nothing relevant.
information early?
MR. BEKESHA:
THE COURT:
But why didnt you find that additional
Thats correct, Your Honor.
Especially motion for summary judgment
defending the adequacy the search was filed month prior
thereto.
MR. BEKESHA:
THE COURT:
Thats correct.
And what else remains?
constant drip, declaration drip.
here, you know mean, this
Thats what were having
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
MR. BEKESHA:
MR. BEKESHA:
THE COURT: is, Your Honor. and needs stop.
And the other issue going back May
2013 when filed the lawsuit, and then, you know, received
February 2014.
letter saying they conducted adequate search January
You know, one the offices and one the
offices that was searched was the Office the Executive
Secretariat, and that office charge reviewing and
searching searching and reviewing e-mails the secretary,
the secretarys chief staff, the secretarys deputy chief
staff, Mrs. Clinton, Ms. Abedin, Ms. Mills.
And when received this letter that they conducted
sufficient search, did the FOIA official know that those e-mails
there are questions there also on, you know, why did have
werent their possession and they didnt tell us?
You know,
wait full almost two years for the New York Times report
that system?
So, you know, there are questions have and thats why
weve moved for discovery, but weve also provided enough
the State Department issue subpoenas, you know,
think enough admissible evidence that the Court were order
you?
THE COURT:
MR. BEKESHA:
THE COURT:
But you didnt ask issue subpoena, did didnt this point because
Well, why not?
Why didnt you?
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
MR. BEKESHA:
Because believed needed additional
information, and thats why moved for discovery.
order them issue subpoena, then?
THE COURT:
MR. BEKESHA:
THE COURT: may error, then, for the Court think
What personal information did you think you
needed before you asked for subpoena?
about the processing the request, the creation the system,
MR. BEKESHA: think wanted know more information
the use the system.
you?
THE COURT: you arent concerned about error, are concerned about creating error.
MR. BEKESHA:
THE COURT:
Well, believe
And its significant that you didnt ask for
subpoena.
important, said, get much admissible evidence
have been filed, lot letters various attorneys have been
MR. BEKESHA:
possible.
filed.
time. didnt ask because thought was
However, Your Honor said, lot declarations
Weve been before the Court. think this the fourth youve heard from agency counsel quite bit.
think theres good record.
But the question was whether not needed, you know,
admissible evidence just enough evidence that could justify
such order. were being cautious that respect, but
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
the records there, you know, there are lot newspaper
e-mails.
stories, you know, theres weve now provided bunch
THE COURT:
MR. BEKESHA:
Can the Court credit the newspaper stories? were concerned about that, and thats why
were here today the motion for discovery.
can take judicial notice news articles.
THE COURT: believe
Well, under certain circumstances the Court
MR. BEKESHA:
THE COURT:
You could, Your Honor.
The Court has done that. the Budget
Autonomy case the Court did that.
Watch, were being cautious.
various FOIA requests, dont believe the State Department would
MR. BEKESHA: did, Your Honor. believe Judicial
However, believe, you know,
the e-mails weve submitted that were produced response
object the authenticity those records; they wouldnt object the authenticity letters written Mr. Kendall,
Mrs. Clintons personal attorney; personal attorneys
Ms. Mills.
Weve provided testimony Ms. Mills that she gave the Congress.
She was under oath.
You know, the State
Department probably wont attest the authenticity that.
But, you know, all these records, they werent all
this case, and were being cautious asking for discovery
Your Honor needed rule. that could make sure that provided all the evidence that
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
THE COURT:
Right.
But the subpoena issue would
obviate the need for discovery, and think youve agreed with
that.
MR. BEKESHA:
Yeah.
Yeah, would, Your Honor. would
be, you know, all the records from the system were asked for,
Ms. Abedin and the records were returned the State
for Mrs. Clinton and Ms. Mills and the records sorry and
Department and they were reviewed, and processed them, you know,
then Judicial Watch would that point receive what its
required receive.
You know, the State Department would
satisfy its obligations under FOIA.
Your Honor.
THE COURT: thats youre correct,
Lets assume let back for second.
Consider this scenario, that the Court considers
everything thats been filed, all the declarations, mean, the
adequate, especially given the declaration the former
multiple declarations, and concludes that the search was
secretary under penalty perjury that shes turned over -well, have back and take look that declaration.
MR. BEKESHA:
Yeah, doesnt say exactly that, Your
Honor.
was done because 55,000 pages were reviewed.
The declaration says that she instructed directed
people turn over all the records, and its her belief that
that question precisely.
THE COURT: didnt answer
All right.
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
MR. BEKESHA:
THE COURT:
But
Well, lets assume that considering that
declaration and the declarations the declarants this case,
and the most recent declaration, the Court concludes
and especially with respect the motion for summary judgment
hypothetically that the searches were adequate and has
problems with the adequacy the search.
what difference does make what the motivation was for the
creation the system? the Courts convinced that the search adequate, notwithstanding the fact that this system was
created, what you need discovery for?
MR. BEKESHA: that were the case, Your Honor,
wouldnt need discovery.
would mean, that point
But its our belief that the
information you have this point, that such ruling that
THE COURT:
You need discovery because its impossible
file response the motion for summary judgment defending the
adequacy the search because all these questions, right?
MR. BEKESHA:
Thats correct, Your Honor.
So, however,
you reach that question reach the answer that question
that point, you know
before discovery, discovery wouldnt needed that point.
THE COURT: needed.
Well, youre not going concede wouldnt
You still maintain that
MR. BEKESHA:
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
THE COURT:
MR. BEKESHA:
Well, dont want make your argument.
Well, yes, Your Honor, still would
would still need discovery, but would that point
ruled, the adequacy the search.
would unclear what grounds, Your Honor had already
THE COURT:
Right, right.
THE COURT:
You wouldnt agree with that necessarily, and
MR. BEKESHA: mean, not you know, and thats fine.
conversation. inviting this
But you would still your argument would still that you are nonetheless not able file appropriate
response documents the motion for summary judgment, even
questions had been raised?
MR. BEKESHA:
Thats correct, Your Honor.
THE COURT:
All right.
THE COURT:
And then, you have discovery.
MR. BEKESHA:
Thats correct.
genuine issue.
theres genuine issue whether not the search was
Then what?
MR. BEKESHA:
adequate
THE COURT:
Then what happens? theres think the next point would
Well, have determine that order
enable you have discovery, right?
cannot make that determination until after discovery occurs.
MR. BEKESHA:
No, Your Honor. believe that the Court
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
THE COURT:
MR. BEKESHA:
All right. thats why the motion for summary
judgment.
theres some discovery, guess, right?
believe the evidence would show would that theres separate
authorized it, they authorized Mrs. Clinton leaving with the
THE COURT:
MR. BEKESHA:
The answer whats next has wait until
Yes, Your Honor. mean, possibly, what
system records, that the State Department knew about it, they
system records.
And therefore, for adequate search
occur, State Department has search those records that
system.
And thats what the evidence shows and the Court
ruled based what believe the evidence would reveal, then
the next step would probably issue order the State
Department issue subpoenas get back those records that
they can conduct the search.
Thats how that would play out
motion for discovery was granted, conducted discovery, the
evidence believe there, find and were able present
Your Honor, the next step would then issue order asking
for subpoena you know, requiring the State Department
subpoena Mrs. Clinton return all those records that
adequate search could conducted.
THE COURT:
Theres everyone assume the parties
are still awaiting another OIG report, correct?
MR. BEKESHA:
Possibly. mean, believe theres
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
something outstanding.
will come down the pipeline, will cover the precise issue, exactly whats being investigated the IG, when such report its addressing slightly different issue.
know. just dont
The State Department may have better sense, Your Honor,
but Judicial Watch does not know.
THE COURT:
All right.
What going do, let give
you couple minutes, Counsel, you want add anything.
asked lot questions. going take short recess.
Ive
you would like supplement your request saying anything for
the record, right ahead.
MR. BEKESHA:
Thank you, Your Honor.
time was up, sorry.
THE COURT:
MR. BEKESHA:
THE COURT: thought after the you want now? you dont mind, could collect
thoughts and when come back.
Yeah, sure.
Let this.
government equal time.
Sure.
Its 11:10.
Thats fine. want give the Ill take 15-minute recess, and
well start again 11:25.
MR. BEKESHA:
Thank you, Your Honor.
(Thereupon, break was had from 11:09 a.m. until
11:37 a.m.)
minutes?
But, you know, the publics the dark
THE COURT:
Counsel, you want just take couple
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
MR. BEKESHA:
Thank you, Your Honor.
Just one quick
point.
entire record, that orders entered the State Department wanted just come and officially formally ask the
Court that its before you, move that based the
subpoena the PST files Mrs. Clinton and Mrs. Abedin from the
Clintonemail.com system.
THE COURT:
All right.
THE COURT:
All right.
THE COURT:
All right.
MR. BEKESHA:
MR. BEKESHA:
All right.
Thats it, Your Honor.
Thank you.
government few minutes.
Anything else? going hear from the
Let just put few things the
record first before invite government counsel up.
The understanding have that there are sufficient
facts show that senior State Department staff knew
tenure Secretary State.
Clintonemail.com from the beginning the former secretarys
For example, the record theres January 24, 2009, e-mail chain between Patrick Kennedy,
Lewis Lukens, David Smith, Cheryl Mills, and some others
regarding setting computer State for Mrs. Clinton
check her e-mail off network.
The inference arises that this knowledge
Clintonemail.com among State senior among senior State
concludes there evidence that dozens staff communicated
Department staff.
Theres January 2016 OIG report that
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
with the secretary through personal accounts, yet have the OIG
knowledge the secretarys personal e-mail server, and thats
found evidence that staff involved responding FOIA had
set forth pages and that report.
The e-mail communication between Abedin; Stephen Mull,
whos technology employee; Mills; Kennedy; and others Mull that State BlackBerry should issued Clinton.
discussing communication problems. one point its suggested
notes that her identity would protected with the State e-mail
account, quote, would also subject FOIA requests, end
quote.
Abedins response is, Lets discuss the State
Blackberry, doesnt make whole lot sense.
Docket Number 51-3.
And thats
The interpretation that Judicial Watch
assigns this somewhat generous and reflects Mull expressing
concern that Clintonemail.com may not managed such way
allow for appropriate responses FOIA requests. can also
read the tech guy technology person flagging for the staff
that would subject FOIA, could interpreted either
way.
Its somewhat ambiguous.
How earth can the Court conclude that theres not,
minimum, reasonable suspicion bad faith regarding the State
one took any steps ensure that agency records
Departments response this FOIA request? appears that
Clintonemail.com were secured within the State Departments
record systems that FOIA requests received during the former
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
secretarys tenure would responded appropriately.
tell what missing.
the State Department concede that senior staff knew about and
And missing something?
And Ill invite counsel the podium.
Honor
Does the government does
condoned the use Clintonemail.com?
Counsel.
How the world could this happen?
Which leads the first question:
Government counsel needs
MR. MYERS:
Good morning, Your Honor.
THE COURT:
Good morning, you concede that?
MR. MYERS: think, Your think its undisputed that former
Secretary Clinton was using the e-mail account correspond with
and that they were necessarily aware the address from which
some people who were senior positions the State Department,
she was sending the e-mails.
THE COURT:
Let ask you this, about the subpoena:
Whats the governments position with respect directive that
secretary and Ms. Abedin requesting the return all records?
the State Department essentially issue subpoena the former
MR. MYERS:
Your Honor, our position that such order
would inappropriate for several reasons.
already reached out former Secretary Clinton and Ms. Abedin
The first that
following your directives this case, the government has
and Ms. Mills, and requested the return all federal records.
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
And counsel for plaintiff indicated, Judge Boasberg looked
that State had taken significant corrective steps get the
everything that had been done and said that that was sufficient,
records back, and, fact, they were sufficient that
dismissed the Federal Records Act case moot.
Also, matter practicality, the record this case perfectly clear that Mr. Kendall, Mr. Clintons attorney, has
and the server the FBI.
turned over the federal records and then provided the thumb drive any subpoena former Secretary
Clinton her counsel would futile because theres nothing
left provide.
THE COURT:
Well, suppose the subpoena says, the
event the event that you receive the former the thumb
whats wrong with that?
drive and other documents from the FBI, then turn them over, her possession. mean, can appreciate they may not can appreciate that, although dont know
that for fact, and nor does the State Department.
You dont know that for fact, you?
Although there
was letter from the FBI confirming that there was
investigation ongoing, believe, correct?
MR. MYERS:
There was letter from the FBI confirming
that theyre looking into those issues, and filed that week two ago.
Your Honor has already directed State reach out the
FBI, and weve requested the State has requested that the FBI
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
let know any records that recovers.
you know, Your Honor indicated earlier that you didnt want
But should also
mention, Your Honor, that matter basic legal doctrine,
anything that would error.
Well, would submit that
matter basis legal doctrine, Kissinger holds that theres
withholding failure retrieve records that longer
belong the agency.
And the very concept subpoena would
suggest that State going out get something does not
have, and Kissinger squarely holds that you cant withhold things
you dont have.
THE COURT:
That leaves the holding out withholding.
Well, the governments position that the
government relinquished least constructive possession the State and control?
documents, even though they were housed outside the Department
MR. MYERS: think, Your Honor, its important look
the question control, sort through the lens chronology.
Secretary Clinton was Secretary State, that during that period
And plaintiffs position this case that while former time, result the employer/employee relationship, there
was constructive control relationship. disagree, but Your Honor doesnt need reach that
issue.
quoting she did not turn over Ms. Abedin and her e-mails.
And the reason for that that plaintiffs here have been
perfectly clear that when Mrs. Clinton left office and
They were taken with them outside the custody and control
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
the State Department.
though.
THE COURT:
Right, but thats not binding the Court,
MR. MYERS:
Certainly not, Your Honor.
THE COURT: seems almost nonsensical that let back up.
over that document?
Say you have hypothetically employee who takes
agency document home with him.
MR. MYERS:
Does the government lose control
Your Honor, the government employee takes
government documents home with him and then resigns from the
agency, which -THE COURT: didnt add that.
Stick with
hypothetical.
government lose control over that document? asking very similar questions that were asked the
what the panel seemed indicating and obviously there
And the government wants that document back, does the
MR. MYERS:
Well, Your Honor, the question that Your Honor
panel the CEI case that was argued just few weeks ago.
And
hasnt been ruling yet, but the panel seemed suggest that
perhaps that case there would obligation for the agency ask the employee bring the documents back.
ask?
THE COURT: that what the panel said, just merely
MR. MYERS:
That was certainly Judge Edwards indication,
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
and you know, you cant glean that much from arguments.
asked, Your Honors instructions.
now where the government has ask employee return
character official document just because the employee takes
But the key point here that the State Department has
THE COURT:
document?
But does that mean, that where are
The document retains the document doesnt lose its home, correct?
MR. MYERS:
Certainly not.
MR. MYERS:
Certainly
THE COURT:
THE COURT:
Its still agency record.
Why cant the agency demand return?
Why does
the government have say, Would you please, when you find -deem appropriate, return the document?
MR. MYERS:
Thats ridiculous.
Well, Your Honor, Kissinger makes clear that addition the document being agency record, for there what Kissinger says that you can assume its agency remedy under FOIA, there needs also withholding.
And
record and you can assume that was wrongfully removed from the
agency, but even you assume that, FOIA still -THE COURT:
Well, the agency that the director takes
home and this case were not talking about director, were
talking about the agency.
MR. MYERS:
THE COURT:
She was the agency.
She was the Secretary State, Your Honor.
Yeah. mean, shes the agency, isnt she?
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
MR. MYERS:
THE COURT:
She was the Secretary State.
Right, right.
And while were that
subject, shes not sitting there.
documents and what documents are personal response FOIA
She wouldnt required
sit computer screen determining what documents are official
request, would she?
MR. MYERS:
No, Your Honor.
But set out our
brief and perhaps this didnt come through clearly
could have its not that the federal employee the Secretary State would the person who decides what not
responsive the request -THE COURT:
MR. MYERS:
Right. but day-to-day basis federal employees
can manage their own e-mail accounts, and record
the employee can simply delete that record.
personal record, you know, its clearly not federal record,
And plaintiffs
argument that former Secretary Clinton her designee,
opposed individuals, you know, the National Archives, were
making the determination whats federal record, really
not all unusual.
Individuals that all the time.
Their only objection, the only point that they make here, that former Secretary Clinton was longer employed the
submit that thats distinction without difference.
State Department when those determinations were made. would
And the
reason for that that, Judge Rothstein said the CEI
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
versus NASA case, the question isnt whether the agency
searched all
THE COURT:
MR. MYERS: sorry, which case this?
Thats CEI versus NASA, 989 F.Supp.2d 74,
which cited our 56(d) opposition.
but rather simply whether the search was adequate.
not whether the agency searched all e-mails that ever existed,
And terms whether not the search was adequate,
again, would point Judge Boasbergs decision where said
that State had taken such significant corrective steps get the
records back that the Federal Records Act claim was moot.
needed more get these records back.
noted, theyve appealed.
back. Your Honor
They can tell that the D.C. Circuit.
Thats before the D.C. Circuit, but dont think its
relevant.
Now, plaintiffs think that was wrong, and they think that State
She said the issue
You know, dont think theres basis here for
finding that the State hasnt done enough get the records
Where State has complied with all Your Honors
correctives this case.
individuals.
State has reached out all the
State has reached out the FBI.
done everything that can get these records.
THE COURT:
State has really the OIG report, page 15, footnote 64, the
OIG notes that attorney from the States legal department
certain FOIA requests appropriately because they excluded the
informed the OIG their belief that State did not respond
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
secretarys personal e-mail account used conduct official
government business. you know who, anyone, formally approved the use
Clintonemail.com?
MR. MYERS:
THE COURT: not know, Your Honor, no.
All right.
And youre speaking behalf
youre speaking well, who would know?
question.
MR. MYERS:
Your Honor, dont know the answer that honestly ultimately, dont think its material
for purposes the relatively narrow FOIA dispute thats before
Your Honor.
And the reason for that this question of, you
know, who knew that former Secretary Clinton was using this
server, and who approved it, seems plaintiffs theory
that there was attempt thwart FOIA here.
THE COURT:
Well, all this was put place before the
MR. MYERS:
Your Honor, plaintiffs have attached certain
secretary was even sworn in, though, right?
documents that goes that theory.
There isnt full record
that, and again, dont think its relevant.
THE COURT:
But you dont dispute the record thats
mean, dont have disposal right now, but there the secretary being sworn in, this system was place.
declaration, believe, from employee that week two prior
MR. MYERS:
Again, for purposes todays motion, not position dispute that.
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
THE COURT:
All right. you know how many staff
State raised concerns, any, about this departments ability
absent all agency records contained Clintonemail.com?
complete reasonable search response any FOIA request,
MR. MYERS:
Again, Your Honor, dont. can say that
know that the Inspector General, obviously Your Honor
aware, looking into these issues.
THE COURT:
Theyve indicated that
Well, dont know that fact, but
there again, thats private inquiry.
filed federal courthouse that the public knows what the
Why shouldnt least
these questions the subject discovery public lawsuit
answers are?
MR. MYERS:
THE COURT:
Your Honor, they shouldnt
The public may never know what the answers are the investigation this FBI investigation, there
one ongoing.
MR. MYERS:
Respectfully, Your Honor, that shouldnt
the subject discovery this lawsuit because Your Honors
has complied with its FOIA obligations.
jurisdiction extends simply determining whether not State
THE COURT:
Right, but how that with all these
questions raised about the circumstances surrounding even the
not comparison case anywhere the system American juris
creation this totally atypical system e-mails?
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
And theres
prudence that weve been able find, there?
Kissinger directly point.
But absent withholding, FOIA provides remedy.
MR. MYERS:
Well, Your Honor, would submit that
you can assume agency records.
that
And, again, Kissinger says that
You can assume wrongful removal.
And even
THE COURT:
Absent withholding.
MR. MYERS:
Respectfully, Your Honor, thats perhaps
everything has been turned over?
But how know that not being clear.
directives and turned over all the federal records that its
making.
obtained.
There are sort two arguments that were
One that State has complied with all your
Separate and apart from that, its also our argument
that State cant have withheld, violation FOIA, records
that never had the first place.
case.
And thats the Kissinger
THE COURT:
Well, then, but youre assuming, though, that
MR. MYERS:
Your Honor, plaintiffs have not articulated
State relinquished control some point these documents.
basis find conclude that State had control possession
And, indeed, they and understand its not binding, but they
these documents following former Secretary Clintons resignation.
have admitted repeatedly that State lost possession and control.
THE COURT:
But thats not binding the Court.
And
that regard, the D.C. Circuit has made clear Bureau
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
National Affairs, Inc. versus Department Justice, that, quote,
party.
the inquiry and thats the inquiry the Court, not
The inquiry necessarily must focus variety
factors surrounding the creation, possession, control, and use
the documents the agency.
And thats 742 F.2d 1484.
The Court rejected rigid control use frameworks
developed previous cases this 1984 decision and
agency, least part enable him her conduct agency
held that where record created employee FOIA
business, quote, necessary consider both the agencys
asserted interest the document and the extent which the
document used conduct agency business, end quote.
MR. MYERS:
THE COURT:
Yes, Your Honor.
All right. determine whether document
created agency employee agency record, the Court
used the document conduct agency business; two, whether the
should consider:
One, whether and what extent that employee
document the agencys control; whether the document was
generated within the agency; and whether the document has been
placed the agency files.
Here, all Clinton and Abedins work e-mails
Clintonemail.com were used conduct agency business.
agency still had, seems me, constructive control over all the
extent they were not physically the State Department, the
agency records.
Moreover, the extent they were not generated
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
within the agency placed the agencys files really due Clintonemail.com. the agencys apparent condoning the former secretarys use
Now, understand your Kissinger argument, but Kissinger
does not reach far your argument requires.
topic consideration the argument that was just heard before
Judicial
Watchs emphasis footnote and footnote the relevant
the circuit appropriate.
Kissinger did not decide whether
the, quote, withholding, end quote, standard must measured
from the time FOIA request received under circumstances
where is, quote, shown that agency official purposely
routed document out agency possession order circumvent FOIA request, end quote. the Court were permit Judicial Watch take
discovery order answer some the many outstanding cetera, and the Court were conclude that theres sufficient
questions regarding who approved the use Clintonemail.com,
evidence show that the State Department condoned the use
Clintonemail.com, isnt that enough show that the State
Department deliberately thwarted FOIA?
MR. MYERS:
Your Honor, weve set out our brief,
read footnote the cases interpreting this
question whether agency sought thwart FOIA general
circuit and from other judges this court not raising the
matter, but rather whether the agency sought circumvent
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
particular FOIA request.
Watch versus the Department Commerce case where said the
then FOIA does not provide remedy. point Judge Lamberths decision the Judicial
documents were removed prior the filing the FOIA request,
Your Honor read the quotation earlier the agency
records point about whether theres sufficient control create
wouldnt concede this generally, but for purposes the motion
agency records.
Again, for purposes todays motion and
today, Your Honor can assume that the e-mails Clintonemail.com
were agency records, but they werent withheld because the
agency longer had them, theres still FOIA violation.
Ultimately, Your Honor, though, want come back
what State has already done get the records back, because none
get records that plaintiff seeking. this really matters there isnt further way actually
This FOIA case
which plaintiffs think theyre entitled records.
And again
here, following Your Honors directive, State has reached out
all these individuals.
Its reached out the FBI.
just dont think theres more this case.
federal records have been turned over.
THE COURT:
And
All the not sure how much comfort that would
give the public, though, knowing that the government allowed
Department State, and the government now says all can
this system created and housed totally off-site the
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
make request for return federal documents.
and you can understand why.
Thats not going give the public much comfort this process all, Counsel,
MR. MYERS:
Well, Your Honor, think the response that that there are any number federal statutes and federal
Federal Records Act, which has been litigated before
regulations that deal with federal recordkeeping.
Judge Boasberg, really key one.
Certainly the
Here were here before
Your Honor FOIA dispute, and the question whether FOIA
provides remedy.
And the Supreme Court said Kissinger,
FOIA does not displace the statutory scheme embodied the
Federal Records Act, providing for administrative remedies
safeguard against wrongful removal agency records well retrieve wrongfully removed records.
THE COURT:
This practice has been curtailed the
MR. MYERS:
Forgive me, Your Honor?
Department State?
THE COURT:
This practice allowing private e-mail
service has been curtailed, has it?
know trying think how answer your question most
MR. MYERS:
accurately.
THE COURT:
MR. MYERS:
Your Honor, understanding that, you
Well, the not certainly not aware. have reason think that this, you know this continuing.
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com dont want make representations generally, but have reason think
that this still going on.
THE COURT: mean, thats question that the government
should able answer, whether not yes, ahead.
you have the answer?
MR. MYERS:
Yes, and co-counsels pointing out, the
FRA has been amended this point, you know, provide further
complying with the FRA.
clarity, and its certainly our understanding that State
THE COURT:
All right.
MR. MYERS:
This practice not condoned consistent with
THE COURT: your colleague knows?
THE COURT:
All right.
condoned, then, far
the FRA.
MR. MYERS: this practice longer
Yes, Your Honor.
Thank you, Counsel.
You know, its just troubling, though, when you focus
the request this case pertaining the lets just focus
private counsel deciding, after neither Ms. Clinton Ms. Abedin
Ms. Abedin.
Here you have Mrs. Clinton and Abedin and their
were government employees, what e-mails are federal records and
what e-mails are not. just boggles the mind that the State
Department allowed this circumstance arise the first place.
Its just very, very, very troubling.
And think that whatever
opinion the Court writes, the first sentence will be:
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
This
very troubling case, for host reasons.
MR. MYERS:
THE COURT:
Again, Your Honor
And the resources that have been devoted
this case, financial and otherwise, are just staggering.
circumstances surrounding Mrs. Clintons e-mails have led
here before you narrow FOIA dispute, and the question
MR. MYERS:
Your Honor, understand that the
significant controversy and significant litigation, but were
whether FOIA provides remedy these plaintiffs, and submit
that the answer that no.
THE COURT:
Well, here its even more narrow than that.
MR. MYERS:
Correct, Your Honor.
Its whether not discovery should allowed forward.
THE COURT:
Lets talk for second about how the FOIA
search would have proceeded the request had been received
she and Ms. Abedin both used the state.gov e-mail for all
while Mrs. Clinton was Secretary State, but lets assume that
official business. understand the Foreign Affairs Manual
designates the Office Information Programs and Services, IPS, responsible for the departments compliance with FOIA, and
thats set forth the OIG report.
IPS logs FOIA requests into the Freedom Information
Document Management System acronym FREEDOMS and determines
offices conduct the search.
which offices may have responsive records and then requests the 2010 the department provided
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
guidance offices describing how searches should take place,
records any form, including paper records, e-mail, including
stating part that, quote, offices should conduct search for
e-mail and personal folders and attachments e-mail and other
electronic records servers, workstations department
databases. your brief you basically argue that State would have
only searched those e-mails that Secretary Clinton designee
would have deemed federal records.
Isnt the position that you
take your brief inconsistent with that 2010 guidance?
MR. MYERS:
No, Your Honor.
Our position that had
former Secretary Clinton and Ms. Abedin exclusively used
have saved some e-mails and deleted some e-mails that were not
state.gov e-mail account, then day-to-day basis they would
federal records.
Then the future FOIA request had come
in, IPS would have worked, you know, with individuals the
secretarys office find the records responsive that
request.
But the first instance, former Secretary Clinton
would responsible day-to-day basis for administering her
own e-mail account.
THE COURT:
You said for administering, what does that
MR. MYERS:
Simply that she has obligation save
mean, use that way:
e-mails that are not federal records.
Administering her own e-mail accounts?
And certainly cant
speak any particular individual, but would imagine that most
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
individuals, you know, delete e-mails that are longer relevant them and that theres obligation save.
THE COURT:
Okay. the guidance suggests that servers
MR. MYERS:
That servers and workstations are searched?
MR. MYERS: think States practice search where
and workstations are searched.
THE COURT: that correct not, though?
Yeah, thats, right, the 2010 guidance.
there would where there might reasonably likely
responsive documents.
THE COURT:
Right.
And thats where and thats why the
directive return that server has some relevance because
former employee would treated the same way she would have
that server were returned whatever the device is, then the
been treated had she been employee the time the FOIA
request came in, correct?
MR. MYERS:
No, Your Honor.
Let clearer.
former federal employee, any federal employee, saves some
e-mail
THE COURT:
Well, were not talking about any federal
MR. MYERS:
Right, the Secretary State.
employee.
Secretary State, using state.gov, saves ten e-mails and
the saved e-mails but not the deleted e-mails, standard
Were talking about the Secretary State. the
deletes five e-mails, you know, such that her Outlook file has
adequate FOIA search will search within the e-mails that she
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
saved.
likely have responsive results because there are federal will not look the server, you know, forensically
recover the deleted e-mails because those would not reasonably
records there.
deleted e-mails.
That not States practice seek recover
And that dovetails with our point here that State has
done enough.
over all federal records.
Secretary Clinton and her designees judgment that theyve turned
THE COURT:
Let stop you right there, though.
THE COURT:
State entitled rely former
But you would take step further, though,
MR. MYERS:
Yes.
had she still been employee the time the FOIA request came
in?
You wouldnt relegated rely her judgment, right?
MR. MYERS:
THE COURT:
No, certainly would, Your Honor. would. shes being treated the same former
employee?
judgment what was personal and what was not following her
MR. MYERS:
resignation.
The only distinction here that she made the
But, again, let super clear this.
THE COURT:
All right.
The FOIA request comes in.
MR. MYERS:
Then that point the search would
the Secretary State.
performed assuming assuming e-mails were potentially
Then what?
Shes
responsive the first place, the search would performed
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
within the e-mails that she had saved. recover any deleted e-mails.
THE COURT:
Putting aside the deleted e-mails
THE COURT:
The State would not seek the State would conduct independent
MR. MYERS:
Right.
search, though, her e-mail system, correct?
what happened here where former Secretary Clinton turned over the
MR. MYERS:
And thats what happened here.
Thats exactly
approximately 55,000 pages, and then State -THE COURT:
MR. MYERS:
But thats what she turned over, though.
But, again, she had been theres always
going first cut whats personal and whats federal
performed the employee.
THE COURT:
MR. MYERS:
Right.
Thats standard practice, and thats precisely
what happened here.
Then once the federal records were
segregated, State performed the independent search.
THE COURT:
You mean say that the Secretary State
once the FOIA request comes in, the Secretary State going
instance whats federal and whats personal before you before sitting computer screen determining the first
State conducts its independent search?
Honor.
MR. MYERS:
Not after the FOIA request comes in, Your
THE COURT:
Were talking about FOIA request now, FOIA
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
request.
federal employee, day-to-day basis, saves some e-mails and
MR. MYERS:
Right. States assumption that
deletes some e-mails, that what youre left with -THE COURT:
All right.
Tell all right.
Look,
hypothetically, shes the Secretary State, the FOIA this
same FOIA request comes in, what does the agency do?
MR. MYERS: assuming shes using state.gov Your
THE COURT:
Yes.
MR. MYERS:
Then State, again, assuming that the request
THE COURT:
Its the same request thats here this
MR. MYERS:
Right.
Honors hypothetical?
e-mail system, right.
calls for e-mails the first place, would work
case.
THE COURT:
Shes using the government-accepted
Everythings the same, other than the
secretary not former, shes the current secretary.
the e-mails that she had saved.
would conduct independent search then, correct?
MR. MYERS:
Right.
THE COURT:
All right.
MR. MYERS: here, Your Honor, State
MR. MYERS:
Yeah, trying answer Your Honors
THE COURT:
State would then work search within
No, no, no.
But what does that mean? need answer that.
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
You
question.
still current Secretary Clinton and she used state.gov, State
Here plaintiff has asked for certain narrow records
pertaining Ms. Abedin, and former Secretary Clinton were
would independent search for those records within the -THE COURT:
MR. MYERS:
Thats what
Respectfully, Your Honor, within the e-mails
that former Secretary Clinton saved and did not delete because
they judged that they were federal records.
THE COURT:
Right,
THE COURT: let stop you there.
MR. MYERS:
Here, thats precisely what happened.
But you would
essentially start searching her system?
the government the government and plaintiff agreed other
Whether she agreed not, youd start searching her system using search words that
search words, right?
MR. MYERS:
Correct, State and State performed those
THE COURT:
Right, right, but itd independent
MR. MYERS:
Again, Your Honor, independent search was
searches here the federal records turned over Mrs. Clinton.
search, though.
performed here using negotiated search terms agreed
plaintiff.
THE COURT:
Right, but its relegated the documents she
MR. MYERS:
And, again, point that that would
gave you look at.
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
equally true she were using state.gov, because she would
records, and State wouldnt able search within those.
always have the authority delete e-mails that were personal either case, she can stop the e-mails that she determines are
personal records from being searched.
THE COURT:
Well, let ask you this:
When the FOIA
request comes in, you say the employee, Take look, start
soon?
deleting, because were going start independent search you that?
MR. MYERS:
No, Your Honor.
MR. MYERS:
But the
THE COURT:
THE COURT:
No, know you dont it.
Wait minute.
Because because the
credibility your search the line, right?
MR. MYERS:
Your Honor, the reason
MR. MYERS:
Yes, the credibility
THE COURT:
THE COURT:
MR. MYERS:
THE COURT:
MR. MYERS:
Right?
Absolutely. course, but
Youve got FOIA officer
But thats not the reason why dont why
State doesnt give that directive.
THE COURT:
MR. MYERS:
Whats the reason?
The reason that employees are deleting
their e-mails day-to-day basis. standard and
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
expected.
THE COURT:
MR. MYERS:
They may may not be.
Well, theres obligation either retain search within personal e-mails.
people dont, and people get notices from that you need
THE COURT: lot
start deleting stuff, right?
MR. MYERS:
Thats
MR. MYERS:
No, but all saying this:
Certainly sure thats true for some
THE COURT:
people, but
THE COURT:
MR. MYERS:
Yeah.
Its true, right. theres obligation save search
within personal records, the fact that -THE COURT:
MR. MYERS:
No. just trying you know, some employees are blowing
their inboxes
may not even know about the FOIA request when hits your office
THE COURT: just trying make point.
The employee hits the FOIA compliance desk.
MR. MYERS:
too.
Right?
THE COURT: assume thats true, sure.
Right, right.
And there are reasons for that,
Because you dont want people deleting records, right?
MR. MYERS:
Your Honor, dont want people deleting
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
federal records. tech starts searching find records. not know what information may responsive for purposes
THE COURT:
Theyre entitled delete personal e-mails.
Thats right.
even know about this. you get FOIA request in,
The employee doesnt
Here, the employee knows and says, While
this lawsuit, Ive directed all e-mails so-and-so-and-so that
were custody turned over.
MR. MYERS:
And, anything, Your Honor, the indication
here that former Secretary Clinton was overinclusive when she
returned federal records State.
THE COURT:
MR. MYERS:
Why, because there were some personal e-mails?
There were 1,500 pages personal e-mails,
and its not really consistent with the notion that she was
wanted that she directed all federal records and potential
refusing turn over federal records.
She said that she
federal records turned over, and again, apparently she was overinclusive -THE COURT:
Right, but thats the difference thats
significant difference, though, how shes being treated and
secretary.
how she would treated had she been had she been the
your search.
right?
She wouldnt know anything about it.
Youd conduct
You would determine what federal records are,
And questionable cases
MR. MYERS:
THE COURT:
No, Your Honor, thats not correct.
Really?
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
MR. MYERS:
MR. MYERS:
Excuse me?
MR. MYERS:
then?
Employees are entitled
The purpose the search find
THE COURT:
THE COURT:
Well, what would the purpose the search,
What would the purpose the search, then?
responsive documents.
THE COURT:
MR. MYERS:
Well, then youd find responsive documents.
Well, State did here.
Thats the key point:
State performed the search for the responsive documents.
circles here.
point time when the employee would not even aware that
THE COURT:
All right.
Were going were going
But your search here, though, based upon what
she gave you, opposed whats her machine given
theres FOIA request.
And there are reasons why the employee not made aware the FOIA request, because the agency doesnt
want people tampering with the documents, assume, right?
MR. MYERS:
Your Honor, Judge Boasberg noted the FRA
that plaintiffs cant sue force the recovery records that
State followed Your Honors instructions this case get the
they hope imagine might exist.
And his point was that after
records back, theyve done enough, and pure speculation not
enough.
You cant just speculate that there are more responsive
records out there.
THE COURT:
And all these circumstances surrounding
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
creation this dont give rise legitimate issues that
discovery may indeed address?
MR. MYERS:
Not where State has complied with all Your
Honors directives bring these records within State custody,
and where State has searched these records.
So, again, Your Honor, our point think threefold.
One that have complied with all Your Honors directives get these records.
Weve performed adequate search.
issued the directive.
And, quite frankly, you know,
was response the former secretary.
THE COURT:
And appreciate that.
delighted that the government complied. quite frankly delighted that there
The scope it, you
know, raises other issues but, you know, there have been efforts comply and appreciate that.
You know, the big question whether not theres
need for subpoena that would produce more documents need
for some discovery.
MR. MYERS:
And may that point, Your Honor?
MR. MYERS:
Kissinger squarely holds that agencys
THE COURT:
Yes.
failure institute retrieval action not withholding
under FOIA, and youre -THE COURT:
Well, retrieval action would more
comprehensive than subpoena. mean, retrieval action
very time-consuming file lawsuit recover, opposed
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
issuing subpoena.
back.
MR. MYERS: just basically says give our documents
Well, Your Honor, both cases presumes
that State has out and get something does not have.
FOIA. State doesnt have it, cant withhold violation
And
And think would error for this Court direct
State get things doesnt have matter black letter
Supreme Court law.
THE COURT:
Right, right.
Well, know, and raised this
about the subpoena, and note, you know, that the plaintiffs
subpoena, and well see.
did and although the plaintiffs now ask that the Court issue
Would other employees State have been accommodated the
way that the former secretary was with respect this private
e-mail server system?
MR. MYERS:
Your Honor, theres indication the
record that effect, and really cant speculate about who
with Your Honors directives.
would treated how.
THE COURT:
Former Secretary Clinton here complied
Right.
Can you very precisely tell what
the reason was for the accommodation the former secretary for
this private e-mail system?
MR. MYERS:
Your Honor, can say that the State OIG
THE COURT:
You may not, but does the agency have
looking into that issue, but dont have more say that.
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
opinion?
MR. MYERS:
With respect to?
MR. MYERS:
Again, OIG looking into that very issue.
THE COURT:
THE COURT: why, why this all happened? understand that.
But does the agency have opinion? understand understand OIG looking into it.
all happen?
Thats what the public wants know.
Does the agency have opinion why?
MR. MYERS:
Why did this
And, Your Honor, again, the issues public
knowledge and sort broader reform and broader policy issues
are being looked OIG, but submit theyre not proper -THE COURT:
But this public forum.
THE COURT:
The plaintiffs have filed public lawsuit
MR. MYERS: is, Your Honor, but were here
asking very public agency the department government
plaintiff but the public has right see.
the Department State produce documents that not only the
MR. MYERS:
THE COURT:
Correct.
Understand that.
And what you know, the difficulty here
that the Courts being asked the government determine,
possibly could have done conduct adequate search for
matter law, that the government has done everything
responsive for documents responsive the FOIA request.
But
then the Court has balance that against, well, how did get this point where theres now search documents that
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
attorney and his client have determined are official, and then
lead that result.
look the circumstances under which the system was created other words, questions have been raised about the
reasons for the creation that system.
thwart FOIA compliance? accommodate the former secretary?
saying.
Was the system created
Was the system created
And, again, thats not what the Courts
These are questions that have been raised. seems me, though, that until those questions have
been satisfactorily answered, how the world can the Court
circumstances this case, the government has, indeed,
determine, matter law, that considering all the
matter law, conducted adequate search ensure compliance
with the FOIA request?
Thats the troubling predicament that the
Court finds itself now, because this the atypical case, and
theres not lot theres not another case Kissinger
only goes far, and doesnt far the government
would like go. theres not another case out there, and
hopefully there wont another case like that because were not
talking about director office employee
agency.
Were talking about cabinet-level official who was
accommodated the government for reasons unknown the public.
And think thats fair statement:
unknown the public.
For reasons heretofore
And all the public can speculate. the public knows why certain things happened, the Court
Scott Wallace, RDR, CRR, Official Court Reporter
(202)354-3196 scottlyn01@aol.com
knows why certain things happened, may well able
search was adequate, considering all the circumstances,
conclude sooner than later, the Court hopes, that, indeed, the
including the circumstances surrounding why this happened all. dont know.
it.
saying. that clear? know you dont agree with
You want say its done, but cant that right now.
MR. MYERS:
Certainly understand what Your Honor
THE COURT:
Right.
MR. MYERS:
articulated.
THE COURT:
MR. MYERS:
And disagree for the reasons Ive know you do. know you do. think its not think that the issues
Your Honor has raised, while perhaps relevant other
proceedings other -THE COURT:
MR. MYERS:
What you mean other proceedings? the process, mean, the FRA case. might relevant other things that are happening.
these questions are probably relevant the IGA the
THE COURT:
investigation?
And the government but you recognize that
MR. MYERS:
The looking into issues that overlap
THE COURT:
Right.
with lot Your Honors questions.
Okay.
All right.
Okay. they are relevant, then, but the