FEBRUARY 19, 2016
Clinton Email Scandal Update
Judicial Watch Files Key Brief in Freddie Gray, Jr. Prosecution – Supports Rights of Accused Police Officer
Fast and Furious Court Victory for Judicial Watch
Justice Antonin Scalia, R.I.P.
Judicial Watch does more than almost anyone else in DC to educate the public about the duplicity of high ranking government officials. I have another extraordinary example of this in the Clinton email scandal.
JW just recently obtained State Department records showing that the Obama agency asked Hillary Clinton to return emails in July 2014. This contradicts statements made in court that State only requested via a November 2014 letter (a version of which was sent to several former secretaries of state) that Mrs. Clinton return records to the State Department. Other new emails show the State Department has separate policies for handling the documents of State Department senior officials “and the rest of the department.”
The emails are found in a batch of 189 pages of documents produced under court order in a major Judicial Watch FOIA lawsuit specifically seeking all of Clinton’s emails and records about her email practices.
An astonishing email from Cheryl Mills, Hillary Clinton’s former counselor and chief of staff, to David E. Wade, then-chief of staff to Secretary of State John Kerry, shows that the State Department asked for the Clinton emails in July 2014.
From: Cheryl Mills
Sent: Friday, August 22, 2014 9:20 AM
To: Wade, David E
Cc: Visek, Richard C; Philippe Reines
Subject: Following Up
Dear David (and Rich)
I wanted to follow up on your request last month about getting hard copies of Secretary Clinton’s emails to/from accounts ending in “.gov” for her tenure at the Department.
I will be able to get that to you, to the best of its availability. Given the volume, it will take some time to do but I wanted to let you know that I am working to get it to you.
Hope you are having a great end to your summer.
(Sorry for not copying Jen, I don’t have her email).
Judicial Watch filed this new email with U.S. District Court Judge Emmett Sullivan, who is now considering whether to grant discovery in another JW lawsuit seeking information on the “special government employee” status of Huma Abedin. The court specifically asked the State Department about how and when it requested that Mrs. Clinton return records. In our latest court filing, Judicial Watch states:
This [Mills] email indisputably shows that the State Department first asked Mrs. Clinton to return records as late as July 2014, not November 2014 as the State Department would have this Court and [Judicial Watch] believe.
Hillary Clinton also misled the American people, as she suggested during her infamous March 2015 United Nations press statement that she turned over the emails only after a request in October 2014 and responded “right away.” In fact, these new emails show it took at least five months for her to turn over only half of the emails in question.
Another email, on the heels of the initial Clinton email story in the New York Times, details how a top State Department official tried to allay the concerns of National Archivist Paul Wester about the Clinton email issue. Margaret Grafeld, deputy assistant secretary of global information systems, recounts to other top State Department officials a March 3, 2015, call with National Archives:
I just had a very cordial 45 minute conversation with Paul Wester regarding the press coverage of the HRC email personal account and State records, focusing on State actions and those NARA will take today.
I explained to Paul the environment in which State operates (and the bifurcated management of records for principals vs the rest of the Department), as well as steps that M and others have initiated to ensure that we are compliant with laws and regulations.
In short, we can expect a letter from Paul to me later today covering the alienation (a legal term of art) of the former Secretary’s records [Redacted] requesting an explanation both of what happened and what we are doing to remedy the situation. I requested that he cc M on the letter as the Senior Agency Official for Records Management, which shall be done.
I will share the letter with you all as soon as I receive it.
Don’t you love the phrase “bifurcated management of records for principals vs. the rest of the Department”! That phrase is Orwellian bureaucratese for: “We treated Hillary Clinton as if she were above the law.”
The special treatment of Hillary Clinton continued after she left the State Department. Another email suggests the State Department provided Mrs. Clinton’s lawyers with a “two drawer safe” in which to store classified emails from the Clinton email server. The documents also show that a report was to be prepared regarding security issues with the Clinton emails, which included a security inspection made of the Clinton lawyers’ offices. One related email states:
Please ask the appropriate DS subject matter experts to contact [Clinton lawyer Kathleen] Turner to arrange for appointment to do a thorough security review to include physical security of area/safe in which document/electronic versions are being kept, who has access to the area/safe, do those individuals have appropriate clearances, when the electronic version is uploaded on a computer is it a stand-alone computer, when the disk/thumb drive is removed is any residual information deleted from the computer and any other appropriate questions. This review/inspection needs to be carried out as soon as possible.
The records also show that, as of December 2, 2014, the Select Committee on Benghazi was still in the dark about the separate Clinton email system. Mrs. Clinton would return some of the requested emails to the State Department on December 5, 2014, but the Select Committee was not informed of this transaction until March 2015. In fact, a December 29, 2014, letter from Mr. Kendall responding to the December 2 request for documents simply refers to the Committee’s request to the State Department with no mention of the Clinton email transfer that took place over three weeks earlier.
Last week, this same lawsuit produced records that included a State Department letter to Hillary Clinton’s lawyers that includes a list of classified records to be either deleted or returned to the State Department. In September 2015, Judicial Watch released State Department documents showing a nearly five-month gap in the emails that Clinton chose to return to the State Department. Shortly afterward, Judicial Watch released correspondence from Under Secretary of State for Management Patrick F. Kennedy asking Hillary Clinton’s lawyer, David Kendall, to destroy or return all copies of a classified email “forwarded by Jacob Sullivan to Secretary Clinton … (Subject: Fw: FYI – Report of arrests – possible Benghazi connection).” Kendall rejected the request, as Congress and other investigators had demanded electronic records be preserved. The correspondence also shows Hillary Clinton ignored a demand to turn over all electronic copies of the approximately 55,000 pages of emails she previously returned in paper form.
The State Department and Mrs. Clinton have been misleading the American people, the Congress, and the courts about when the State Department asked her for the government emails she took with her when she left State. The new emails show that Hillary Clinton was specifically and separately asked for her government emails months earlier than what the State Department represented to the courts and what Clinton told the American people. These new documents ought to be of keen interest to the FBI and federal prosecutors investigating Hillary Clinton and her colleagues in the Obama administration. Were the White House and John Kerry in on this deception?
You can see how the Clinton email controversy is only worsening. So as America waits for the FBI and a compromised Justice Department to act – and as Congress is completely AWOL – your JW is doing the work of getting to the truth about this truly historic scandal.
Judicial Watch Files Key Brief in Freddie Gray, Jr. Prosecution – Supports Rights of Accused Police Officer
When an angry mob begins to dictate justice, we all lose out. And the poisonous atmosphere that now exists toward law enforcement officers is a danger to all of us. So I’m especially proud of our legal team’s brief in support of the rule of law and the rights of an accused police officer in what is now one of the most notorious, racially-divisive criminal cases in the country.
Specifically, Judicial Watch’s attorneys filed an amicus curiae brief with the Maryland Court of Special Appeals, arguing that forcing Baltimore Police Officer William G. Porter to testify against fellow officers before his June retrial for manslaughter, assault, and other criminal charges over the police-custody death of Freddie Gray Jr., would have a significant, adverse chilling effect on his constitutional rights under the Fifth and Sixth Amendments. We argue the unusual push to force Office Porter to testify while facing charges is part of an unjust effort “to quiet unrest and appease violent protesters.” We filed the brief last week, on February 10.
The JW amicus brief explains our interest in the case:
Judicial Watch seeks to participate as an amicus curiae in this matter to ensure that due care and the full protections of the law – not a hasty rush to judgment or short-sighted effort to placate angry protesters – are afforded to all persons and entities involved. Of particular concern to Judicial Watch are the “uncharted” questions of law raised by the State’s efforts to compel Officer William G. Porter to testify at the trials of his fellow officers following his mistrial and before his retrial.
In January, the Circuit Court for Baltimore City ordered Officer Porter to testify, over the assertion of his Fifth Amendment privilege against self-incrimination, in the trials of two police officer co-defendants. Last night the Court of Appeals, Maryland’s highest court, took up the issue for expedited consideration. Argument is scheduled for March 3. Judicial Watch attorneys argue to the appellate courts:
Under the unique circumstances presented by this case, the State cannot accuse Officer Porter of perjury, compel him to testify against his fellow officers, and seek to retry him without violating his Fifth and Sixth Amendment rights.
On April 12, 2015, Gray was arrested by the Baltimore City Police. One week later, Gray died on April 19, 2015, after sustaining spinal cord injuries while being transported in a police van on the day of his arrest. His death sparked violent rioting, leading to over 100 police officers being injured, multiple arrests, hundreds of businesses being destroyed, a state of emergency, and deployment of the National Guard. On May 1, less than two weeks after Gray’s death, Baltimore State’s Attorney Marilyn J. Mosby announced charges against the six officers involved in Gray’s arrest. All have pleaded not guilty. In announcing the charges, State’s Attorney Mosby suggested the quick decision to prosecute the officers, was in response to the demands of violent protestors:
“To the people of Baltimore and the demonstrators across America, I heard your call for ‘no justice, no peace.’ Your peace is sincerely needed as I work to deliver justice on behalf of this young man.”
Baltimore politicians don’t seem to care much about the constitutional rights of the police officers facing imprisonment in the Freddie Gray prosecution. This prosecution undermines the public’s faith in the fair administration of justice. Forcing defendants to testify in plain violation of their Fifth Amendment rights would turn our justice system on its head. It is looking more and more like these Baltimore police officers are in the dock for the death of Gray in order to appease a violent mob. Is this what justice in Maryland looks like?
Fast and Furious Court Victory for Judicial Watch
This is an important story about Judicial Watch’s complicated and complex investigation into the Obama administration’s deadly Operation Fast and Furious scandal. And this is one story that should be shared far and wide.
Earlier this week your JW was pleased to announce that we scored a victory in the United States Court of Appeals for the District of Columbia Circuit regarding a September 5, 2013, Freedom of Information Act (FOIA) lawsuit for all records of communications between the U.S. Department of Justice (DOJ) and the House Committee on Oversight and Government Reform on settlement discussions in the Committee’s 2012 contempt of Congress lawsuit against former Attorney General Eric Holder. The contempt citation stemmed from Holder’s refusal to turn over documents to Congress related to the Operation Fast and Furious gunrunning scandal. The appeals court decision was issued last week, on February 12.
On June 28, 2012, Holder was held in contempt by the House of Representatives over his refusal to turn over records explaining why the Obama administration may have lied to Congress and refused for months to disclose the truth about the gunrunning operation in which the Obama administration allowed weapons to “walk” across the border into the hands of Mexican drug cartels, directly resulting in the death of U.S. Border Patrol Agent Brian Terry and countless Mexican citizens. The House vote against Holder marked the first time in U.S. history that a sitting Attorney General was held in contempt of Congress.
A week before the contempt finding, to protect Holder from criminal prosecution and stave off the contempt vote, President Obama asserted executive privilege over the Fast and Furious records that the House Oversight Committee had subpoenaed eight months earlier.
Judicial Watch filed a FOIA lawsuit on September 12, 2012, for all of the records the Obama White House was withholding from the House of Representatives under its June 20, 2012, executive privilege claims. The House had been separately litigating to obtain the records before U.S. District Court Judge Amy Berman Jackson. We figured, correctly it turns out, we’d have better success in court than the hapless Congress.
Initially, the House lawsuit stalled our litigation. On February 15, 2013, U.S. District Court Judge Bates stayed the Judicial Watch case, in part to allow ongoing settlement discussions between the DOJ and the House Committee to continue.
Judicial Watch was skeptical that the “settlement discussions” were serious and that they were merely an excuse to keep the records secret to protect Holder and the Obama administration from any Fast and Furious fallout. Judicial Watch sought records about the alleged settlement talks and sued in federal court for them in September 2013. As last week’s appellate decision details, U.S District Court Judge Richard Leon ruled that a statement Judge Jackson made in the House lawsuit was a lawful reason to withhold the documents from the public:
“I don’t know what you said. I don’t want to know.” – was “an explicit statement from Judge Jackson instructing the parties to keep the substance of their settlement discussions private,” so “there can be no doubt that there was a valid court-imposed restriction prohibiting disclosure.”
The U.S. Court of Appeals concluded that Judge Leon erred in concluding that Judge Jackson’s comment – about not wanting to know about the settlement – should be construed as an order to seal the records requested by Judicial Watch:
[T]here is no extrinsic evidence that was what the judge intended; indeed, that concern is nowhere mentioned in the record in this case, and it is equally plausible that Judge Jackson wanted simply to preserve her objectivity in case she ultimately were to preside over a trial. Nor has the Department pointed to extrinsic evidence, such as information that the district court customarily protects the confidentiality of settlement discussions before a case is referred to mediation, that supports its preferred reading.
Accordingly, the intended effect of Judge Jackson’s order is ambiguous. An ambiguous court order does not protect a record from disclosure pursuant to the FOIA.
The appeals court directed the issue be taken up again by the lower courts:
At oral argument, Judicial Watch raised no objection to our remanding the case for clarification and acknowledged that Judge Jackson’s explanation would be dispositive. Accordingly, we vacate the judgement for the district court and remand this matter to Judge Leon in order to give the Department an opportunity to seek clarification from Judge Jackson regarding the intended effect and scope of her order.
The “mediation” and the House effort to obtain the Fast and Furious documents went nowhere until after Judge Bates in the Judicial Watch litigation ruled that the Obama Justice Department had to disclose directly to Judicial Watch information that Congress was seeking.
After a lengthy 16-month delay of its lawsuit because of this “mediation,” Judicial Watch finally obtained a July 18, 2014, ruling from Judge John D. Bates that lifted a stay of our open records lawsuit and ordered the production of a Vaughn index by October 1, 2014. Judge Bates noted that no court has ever “expressly recognized” President Obama’s unprecedented executive privilege claims in the Fast and Furious matter. Typically, a Vaughn index must: (1) identify each record withheld; (2) state the statutory exemption claimed; and (3) explain how disclosure would damage the interests protected by the claimed exemption.
On September 9, 2014, Judge Jackson, citing Judicial Watch’s separate success, ordered the Justice Department to produce information to Congress by November 3, 2014.
On September 23, Judge Bates then denied the DOJ’s request that it be given more than a month, until November 3, to produce the Vaughn index. As Judge Bates noted: “at best, it means the Department has been slow to react to this Court’s previous [July 18, 2014] Order. At worst, it means the Department has ignored that Order until now.”
Holder announced his resignation two days after Judge Bates denied a Justice Department request it be given over an extra month to produce the Fast and Furious information. JW took due credit for forcing Holder out of office, noting it was “no coincidence that Holder’s resignation comes on the heels of another court ruling that the Justice Department must finally cough up information about how Holder’s Justice Department lied to Congress and the American people about the Operation Fast and Furious scandal, for which Holder was held in contempt by the House of Representatives.”
I hope the latest Judicial Watch court victory over the Obama gang in the Fast and Furious scandal is some solace to the families of Brian Terry and the families of countless other Fast and Furious victims. The body count, thanks to Barack Obama’s Fast and Furious gunrunning operation, will only rise over time – so every bit of accountability Judicial Watch can claw from the courts is well worth the effort.
You can see how this latest court victory was the result of a remarkable and tenacious effort by our legal and investigative teams. And the appellate ruling is one of a string of victories.
Your JW’s FOIA litigation also forced President Obama to retreat from his abusive assertions of executive privilege. (It probably won’t surprise you to learn that separate litigation by the House for the Fast and Furious documents continues, with Judge Jackson ruling last month against Obama’s assertions of executive privilege.)
In 2011, then-Attorney General Holder admitted that guns from the Fast and Furious scandal are expected to be used in criminal activity on both sides of the U.S.-Mexico border for years to come.
Holder was right on that, at least. In 2014, Judicial Watch announced that, based upon information uncovered through a public records lawsuit, the U.S. Congress confirmed that an AK-47 rifle was used in a July 29, 2013, gang-style assault on an apartment building that left two people wounded. Judicial Watch litigation also obtained crime scene photos of the Phoenix attack that raised new cover-up questions. Despite the fact that the crime scene photos clearly revealed a serial number that shows that the AK-47 used in the commission of the crime was a Fast and Furious weapon, the City of Phoenix and Department of Justice failed to turn over the incriminating photos to Congress, despite longstanding requests for such information. According to Judicial Watch sources, investigators at the scene and subsequently knew that the AK-47 was a Fast and Furious weapon.
Just last month, a Fast and Furious weapon was found at the hideout of infamous Mexican drug lord Joaquin “El Chapo” Guzman. The .50 caliber rifle reportedly is capable of taking out a car or a helicopter.
This decrepit city may yawn at the deaths of Brian Terry and myriad other innocents (here and in Mexico) caused by this administration’s Fast and Furious insanity, but your Judicial Watch is still on the case, our litigation will continue and I tell you that we’re still investigating new leads on the issue.
Justice Antonin Scalia, R.I.P.
Associate Justice for the U.S. Supreme Court Antonin Scalia described himself as a “textualist” and an “originalist” who looked to the actual language of the U.S. Constitution and what the words meant when they were written. This means he rejected a results-oriented form of jurisprudence that elevated policy preferences above the rule of law. Though he often dissented from the majority view on the Supreme Court, he wrote his opinions with an eye toward educating young lawyers for the sake of posterity and constitutional renewal.
The untimely death of Scalia marks a sad time for those of us fighting for the rule of law and constitutional government. Justice Scalia’s death reminds us how much our liberties depend upon principled individuals in positions of power. So many of his Supreme Court opinions stand as testament to his genius, wisdom, and his patriotic desire to share the original vision of the Founding Fathers with his fellow Americans.
Unfortunately, given the outsized and often-extra constitutional role that the Supreme Court plays in our system of government, the passing of an American titan immediately started a power struggle.
I’m of the belief that no nominee of President Obama to the judicial branch, let alone to the Supreme Court, should be approved by the Senate. The right to govern ourselves has too often been under assault by as many as six current justices (including “Republican” appointees) who would substitute their own personal policy views for the guidance of the text of the U.S. Constitution. Certainly, any nominee of President Obama to the High Court would further stress our republican form of government.
The American voter should decide on Election Day who nominates Scalia’s replacement. This is not a radical thought, and is a compromise that places the voters in the driver’s seat for this key decision about the future of our nation.
The Left and their allies in the media will attack any sensible Democratic senator and pressure Republicans, many of whom aren’t principled conservatives, who oppose considering Obama’s nominees.
So it is essential that you speak up. Share your views with your senators, whether Democrat or Republican. Write letters to the editor of your local newspaper. Be active online. The stakes are significant. As the leftist New York Times highlights today in a story with a title that serves as an unintended warning, “Supreme Court Nominee Could Reshape American Life:”
There is a reason Republican senators are so adamant in their refusal to let President Obama appoint a successor to Justice Antonin Scalia, a towering figure in conservative jurisprudence. An Obama appointment would be the most consequential ideological shift on the court since 1991, creating a liberal majority that would almost certainly reshape American law and American life.
We will track and participate in the debate here in DC, but your personal activism could be essential in educating politicians and defending the U.S. Constitution that Justice Scalia loved so much.