JULY 08, 2016
First the good news, the FBI/Justice Department cover-up won’t derail Judicial Watch’s independent effort to get at the truth about the Clinton email scandal.
In fact, a few hours ago we submitted to a federal court judge a request for permission to depose former Secretary of State Hillary Clinton.
We also asked permission to depose the Director of Office of Correspondence and Records of the Executive Secretariat (“S/ES-CRM”) Clarence Finney; and the former Director of Information Resource Management of the Executive Secretariat (“S/ES-IRM”) John Bentel.
Our request arises in a Judicial Watch Freedom of Information Act (FOIA) lawsuit before U.S. District Court Judge Emmet G. Sullivan that seeks records about the controversial employment status of Huma Abedin, former deputy chief of staff to Clinton. The lawsuit was reopened because of revelations about the clintonemail.com system. (Judicial Watch v. U.S. Department of State (No. 1:13-cv-01363)).
Judge Sullivan almost immediately issued a court order, just as your Weekly Update went to press, scheduling a hearing on the issue on July 18.
As you know, the court previously granted discovery on the clintonemail.com system, and we have deposed seven former Clinton top aides and current State Department officials, including top Clinton aides Cheryl Mills and Huma Abedin. We also deposed IT official Brian Pagliano, who asserted his Fifth Amendment right not to testify during the deposition. In granting Judicial Watch’s initial discovery motion, the court ruled that Judicial Watch may seek permission for Hillary Clinton’s testimony, if necessary. Today’s brief argues that the Clinton testimony is necessary:
[Judicial Watch] recognizes the significance of asking a former agency head and presumptive nominee for president to sit for a deposition. As the primary driving force behind and principal user of the clintonemail.com system, however, Secretary Clinton’s testimony is crucial to understanding how and why the system was created and operated. It also is crucial to understanding why the secretary chose to use the system for all her official email communications, not only initially but also after the system proved to be so problematic for the department, top departmental officials, and the secretary herself. Plaintiff has attempted to obtain as much evidence as possible from other State Department officials, but Secretary Clinton is an indispensable witness and significant questions remain, including why records management officials apparently had no knowledge of the system when so many other officials used the system to communicate with her. Consequently, Secretary Clinton’s deposition is necessary.
Our brief notes, “Although significant progress has been made in uncovering evidence concerning the creation and use of the clintonemail.com system and the State Department’s approach and practice for processing FOIA requests potentially implicating Secretary Clinton’s and Ms. Abedin’s emails, important questions remain.” Our brief also points to this week’s findings announced by FBI Director James Comey as providing additional reasons for Clinton’s testimony:
In his statement announcing the conclusion of the FBI investigation into Clinton’s email practices, Comey stated, “The FBI also discovered several thousand work-related e-mails that were not in the group of 30,000 that were returned by Secretary Clinton to State in 2014.” The FBI’s finding raises questions about Clinton’s assertions in her August 8, 2015, declaration that she directed that all her emails on the clintonemail.com system in her custody “that were or potentially were federal records be provided to the Department of State” and that “on information and belief, this has been done.” Clinton’s deposition is necessary to inquire about the basis of these assertions in light of the FBI’s finding.
Judicial Watch alerted the State Department and Justice Department last week that we would seek this additional testimony from Clinton and others, but Justice Department lawyers informed us that the State Department opposes the request.
We are seeking the testimony of Finney because, as chief Freedom of Information (FOIA) officer for the Secretary’s office, he “had day-to-day responsibility for records management and research, including conducting and coordinating searches in response to FOIA requests, during Secretary Clinton’s and Ms. Abedin’s tenure.”
We are seeking the deposition of Bentel for several reasons. When asked by his staff about Clinton’s use of a non-state.gov email account to conduct government business, “Mr. Bentel instructed them not to discuss the issue. As a result, obtaining Mr. Bentel’s testimony is essential to determine what he knew, when he knew it, and why he did not share the information with the appropriate State Department employees responsible for responding to FOIA requests.”
Hillary Clinton can answer questions about her email practices that no other witness can. Her testimony will help the court determine if, how, and why FOIA was thwarted by the Clinton email system.
Judicial Watch has a separate request for Clinton’s testimony pending before U.S. District Court Judge Royce Lamberth, who ruled on March 29 that “where there is evidence of government wrong-doing and bad faith, as here, limited discovery is appropriate, even though it is exceedingly rare in FOIA cases.”
Shamefully ignoring the law, FBI Director James B. Comey recommended that the Department of Justice not indict Hillary Clinton for the disclosure of classified information on her non-state.gov email. Sure enough, Obama Attorney General Loretta Lynch closed the investigation without charges the next day.
Comey first detailed Clinton’s massive destruction of government records and grossly negligent handling of classified information. But then came an enormous disconnect between these devastating findings and Comey’s weak recommendation not to prosecute.
Chris Farrell, JW’s Director of Investigations & Research, spelled out Hillary Clinton’s email crimes in detail for The Hill.
Comey provided the following detailed examples of how Mrs. Clinton violated the law:
- “110 e-mails in 52 email chains have been determined by the owning agency to contain classified information at the time they were sent or received. Eight of those chains contained information that was Top Secret at the time they were sent; 36 chains contained Secret information at the time; and eight contained Confidential information.”
- Comey charged that former Secretary of State Clinton (and her colleagues), “were extremely careless in their handling of very sensitive, highly classified information.” And he confirmed that, “any reasonable person in Secretary Clinton’s position, or in the position of those government employees with whom she was corresponding about these matters, should have known that an unclassified system was no place for that conversation.”
- With respect to Mrs. Clinton’s culpability in compromising national defense information to hostile actors, Mr. Comey stated: “We do assess that hostile actors gained access to the private commercial email accounts of people with whom Secretary Clinton was in regular contact from her personal account. We also assess that Secretary Clinton’s use of a personal email domain was both known by a large number of people and readily apparent.
- She also used her personal email extensively while outside the United States, including sending and receiving work-related emails in the territory of sophisticated adversaries. Given that combination of factors, we assess it is possible that hostile actors gained access to Secretary Clinton’s personal email account.”
By not acting on these charges, Comey has torpedoed his bureau’s reputation. As I wrote for Fox News:
According to Comey’s testimony before the House, the Hillary Clinton lies, subterfuge, document destruction and national security violations that would, for starters, get you or any other non-political elitist drummed out of the FBI, shouldn’t even be considered for prosecution by a “reasonable prosecutor.” Well, not if that “reasonable prosecutor” owes his meal ticket and position of power to the likes (and dislikes) of Hillary Clinton and Barack Obama.
What was perhaps most striking about Comey’s testimony is how he carefully narrowed his investigation in a way that conveniently helps Hillary Clinton.
Did Hillary Clinton lie to Congress about her email practices? Not part of the investigation. Did she conceal and illegally remove federal records? Not part of the investigation. And no word on the pay-for-play schemes with the Clinton Foundation and its donors. How did the classified material get on Clinton’s system? Comey confessed his FBI didn’t even investigate this basic question.
One analysis of Comey’s legal sophistry is that he saw that the fix was in and he wasn’t going to cause a crisis and put his job on the line by recommending a prosecution to a compromised and conflicted Obama Justice Department.
Comey may think he’s successfully threaded the political needle – highlighting Clinton’s malfeasance while giving her a get-out-of-jail-free card. But all he’s done is further lowered the reputation of the FBI in the eyes of the American people.
Comey’s statement and testimony to Congress the other day was remarkable for its intellectual and factual dishonesty (see our next story). But do not despair! Your Judicial Watch helped break open the Clinton email scandal and, as you see with our latest effort to depose Hillary Clinton, will keep on with this groundbreaking litigation and investigation.
Among many things making Comey’s decision infuriating was the fact that his FBI helped convict a Navy reservist who “handled classified materials inappropriately.” Our Corruption Chronicles blog had that story:
Illustrating that FBI Director James Comey is a liar and a fraud, his agency helped convict a Navy reservist last summer of the same crime that he just cleared Hillary Clinton of committing. In that case the reservist from northern California got criminally charged—as per FBI recommendation—for having classified material on personal electronic devices that weren’t authorized by the government to contain such information. The FBI investigation didn’t reveal evidence that the reservist intended to distribute classified information to unauthorized personnel, so he was just being “extremely careless” like Clinton and her top aides.
Similar offenses, vastly different outcome. The key factor, of course, is that one subject is a regular Joe without Clinton-like political connections. His name is Bryan H. Nishimura and last July he pleaded guilty to unauthorized removal and retention of classified materials after the FBI found such materials were copied and stored in at least one “unauthorized and unclassified system.” Clinton had droves of classified and top secret materials in an “unauthorized and unclassified system.”
Nishimura had been deployed to Afghanistan as a regional engineer for the U.S. military and had access to classified briefings and digital records that could only be retained and viewed on authorized government computers, according to the FBI announcement, which defines the reservist’s crime in the following manner; “handled classified materials inappropriately.” So did Clinton on a much larger scale.
Last July Nishimura pleaded guilty to “unauthorized removal and retention of classified materials” and was sentenced to two years of probation, a $7,500 fine and forfeiture of personal media containing classified materials. He was further ordered to permanently surrender all government security clearances. Hillary Clinton could soon have the highest security clearance available if she gets elected president, making Comey’s inconceivable recommendation that “no charges are appropriate in this case” all the more outrageous.
Incredibly, during his 15-minute press conference this week Comey provided details of how Clinton violated the law by exchanging dozens of email chains containing classified and top secret information and how she mishandled national defense information on her outlaw email server. The FBI director even outlined how Clinton compromised the country’s national defense to “hostile actors,” yet he asserts Clinton and her cohorts didn’t intend to break the law. “Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information,” Comey said, “there is evidence that they were extremely careless in their handling of very sensitive, highly classified information.” Enough to be criminally charged like the Navy reservist from northern California.
When Comey, the federal prosecutor in the Martha Stewart case, put the television celebrity in jail for participating in an insider trading scheme, he acknowledged the importance of not granting special treatment to a rich and famous person. Stewart went to prison for obstructing justice and lying to investigators about a sudden stock sale that helped her avoid losing thousands of dollars. In an interview with his college newspaper a few years after Stewart’s conviction Comey, then U.S. Attorney for the Southern District of New York, said that if Stewart were Jane Doe she would have been prosecuted. “I thought of my hesitation about the case due to someone being rich and famous, and how it shouldn’t be that way,” Comey said. “I decided we had to do it.”