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Judicial Watch • JW v. Rex Tillerson decision 00785

JW v. Rex Tillerson decision 00785

JW v. Rex Tillerson decision 00785

Page 1: JW v. Rex Tillerson decision 00785


Number of Pages:10

Date Created:August 31, 2017

Date Uploaded to the Library:August 31, 2017

Tags:Rex, subpoenas, Tillerson, Compl, 00785, Priestap, Declaration, decision, Grand, defendants, Plaintiffs, motion, Emails, government, Secretary, Hillary Clinton, clinton, State Department, FBI, Supreme Court, DOJ, department, united

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Civil Action No. 15-785 (JEB)
REX TIILLERSON, his official
capacity U.S. Secretary State,
------------------------------------------------------CAUSE ACTION INSTITUTE,
REX TILLERSON, his official
capacity U.S. Secretary State,
DAVID FERRIERO, his official
capacity U.S. Archivist,
Civil Action No. 15-1068 (JEB)
The 2016 presidential election may have come and gone, but Plaintiffs Judicial Watch
and Cause Action Institute quest for Hillary Clinton emails lives on. most readers will
remember, Clinton used private email accounts during her tenure Secretary State,
embroiling the government myriad Freedom Information Act suits. this case, however,
Plaintiffs have taken different tack, alleging violation the Federal Records Act. That is,
they claim Defendants State Department and the National Archives and Records Administration
failed maintain records Clinton emails and must now seek the Department Justice
assistance their recovery. Most broadly characterized, Plaintiffs suit pertains tens
thousands communications. this stage, however, the parties have largely zeroed
sliver that trove wit, emails sent Clinton two Blackberry accounts during her first
weeks office.
The present controversy narrower still. establish its good-faith recovery efforts, the
Government has submitted declaration describing grand-jury subpoenas issued Clinton
service providers. The catch? offers the full version for camera and parte review only.
Plaintiffs have responded with Motion Produce, arguing that the extent this Court might
rely the declaration, they must have unfiltered access. After reviewing the document
camera, the Court concludes that largely rehashes information already made public, thus
obviating any need for secrecy. The Court will therefore grant Plaintiffs Motion large part
and, subject very limited exception, order that Defendants resubmit unredacted version
the declaration.
Plaintiffs are two non-profit organizations, which describe themselves dedicated
promoting transparency, accountability, and integrity government. Compl., COA
Compl., 21. the wake reporting that former Secretary Clinton had used personal email
account and server conduct official government business, both organizations became
concerned that federal records had been unlawfully removed from the State Department. See
Compl., Judicial Watch therefore filed suit May 2015, and Cause Action joined the
mix two months later. Both alleged violations the Federal Records Act, U.S.C. 2101
seq., 2901 seq., 3101 seq., 3301 seq., collection statutes governing the creation,
management, and disposal records federal agencies. Public Citizen Carlin, 184 F.3d
900, 902 (D.C. Cir. 1999). Plaintiffs claimed principally that the State Department had failed
retain and search agency records, such that the current Secretary State must initiate[] action
through the attorney general recover the Clinton emails. Compl., 29; COA Compl.,
16-17, 68.
This Court dismissed the suit moot. See Judicial Watch, Inc. Kerry, 156 Supp.
69, (D.D.C. 2016). proceed, reasoned, Plaintiffs must allege ongoing injury under
the FRA, but both NARA and State had already taken substantial steps recover more than
55,000 pages Clinton emails. Id. 76-78. The Court Appeals reversed. See Judicial
Watch, Inc. Kerry, 844 F.3d 952, 953 (D.C. Cir. 2016). allowed that actions taken the
Department and the FBI might have mooted appellants claims securing custody all emails
that the Attorney General could have recovered enforcement action. Id. 955 (emphasis
added). But although the tag-team efforts bore some fruit, the Court Appeals believed that
shaking the tree harder might bear more still. Id. Specifically, highlighted that
Clinton had used Blackberry account during her first weeks office from January 21, 2009, March 18, 2009 and the record showed effort State the FBI recover those
emails. Id. 955-56. The Court Appeals then held that the case was not moot [a]bsent
showing that the requested enforcement action could not shake loose few more emails. Id.
955. noted, however, that Defendants might once again raise mootness remand. Id. 95657.
Now back for round two, Defendants have accepted the invitation and renew their Motion Dismiss mootness grounds. See ECF No. 33. that end, they have explained their efforts track down the remaining Clinton emails, including those recovered the FBI during its
investigations. See, e.g., id., Exhs. 1-4. Before the parties finish briefing, however, the Court
must pause resolve narrower controversy: whether Defendants can submit one document
the Second Declaration FBI Special Agent E.W. Priestap camera and parte support their Motion. Priestap previously submitted unredacted declaration (his First
Declaration and there tipped off Plaintiffs that the FBI had issued grand-jury subpoenas
third-party providers. See Def. MTD, Exh. (Declaration E.W. Priestap), Defendants
then followed with Preiestap Second Declaration, but this time redacted large portions
the public version. See Def. Opp. Mot. Produce n.1; see also ECF 43-3, Exh. The
Court discusses the disputed Second Declaration more detail below, but for now, suffice
say that offers few) more specifics about the grand-jury subpoenas.
Legal Standard
Federal Rule Criminal Procedure 6(e) bars the disclosure matters occurring before
grand jury. See Fed. Crim. 6(e)(2)(B). This not say, however, that Rule 6(e) draws
veil secrecy over all matters occurring the world that happen investigated
grand jury. SEC Dresser Indus., Inc., 628 F.2d 1368, 1382 (D.C. Cir. 1980) (en banc).
the contrary, [t]here per rule against disclosure any and all information which has
reached the grand jury chambers. Senate Puerto Rico DOJ, 823 F.2d 574, 582 (D.C. Cir.
1987). Indeed, Rule 6(e) includes carve-out, which allows court authorize disclosure
grand jury matter connection with judicial proceeding time, manner, and
subject any conditions that directs. Fed. Crim. 6(e)(3)(E)(i). trigger that provision, party must show that the sought-after information [1]
needed avoid possible injustice another judicial proceeding, [2] that the need for
disclosure greater than the need for continued secrecy, and [3] that their request structured
cover only material needed. Douglas Oil Co. Cal. Petrol Stops Nw., 441 U.S. 211, 222
(1979). This standard highly flexible one and sensitive the fact that the requirements secrecy are greater some situations than others. United States Sells Eng 463 U.S.
418, 445 (1983). Although the party seeking disclosure must show with particularity why
needs the information, see United States Procter Gamble Co., 356 U.S. 677, 682 (1958),
will face lesser burden the considerations justifying secrecy become less relevant.
Douglas Oil, 441 U.S. 223.
This case largely comes down simple balancing act between the need for
disclosure and the need for continued secrecy. Douglas Oil, 441 U.S. 222. the one
hand, Plaintiffs argue that disclosure crucial, they must access any facts that Defendants use support their Motion Dismiss. See Mot. Produce refresh, that Motion turns
whether Defendants have already exhausted all avenues for email recovery, such that any action
under the FRA would adopt the D.C. Circuit metaphor fruitless. result, they
submitted the Second Declaration, averring that the FBI undertook all reasonable and
comprehensive efforts recover relevant emails and providing supporting evidence. See
Second Decl., 11. Not surprisingly, Plaintiffs are loath take the Government word for it.
Ordinarily, they argue, camera and parte review appropriate only when party seeks
prevent use the materials the litigation, such asserting evidentiary privilege.
Abourezk Reagan, 785 F.2d 1043, 1061 (D.C. Cir. 1986). that instance, court may
properly inspect the evidence alone for the limited purpose determining whether the asserted
privilege genuinely applicable. Id. This case assumes different posture: The Government
hopes can rely its grand-jury subpoenas while still shielding their contents from Plaintiffs
and the public. Only the most extraordinary circumstances, however, does precedent
countenance court reliance upon parte evidence decide the merits dispute. Id. the other hand, the Government seeks preserve the secrecy grand-jury
proceedings, interest that would typically weigh heavily its favor. initial matter,
though, the Second Declaration largely steers clear Rule 6(e) bread and butter: the
identities witnesses jurors, the substance testimony well actual transcripts, the
strategy direction the investigation, the deliberations questions jurors, and the like. Motions Dow Jones Co., Inc., 142 F.3d 496, 500 (D.C. Cir. 1998) (internal quotation
marks omitted). Rather, recounts one agent description grand-jury subpoenas. The D.C.
Circuit has recognized that the term grand jury subpoena some respects misnomer,
because the grand jury itself does not decide whether issue the subpoena; the prosecuting
attorney does. Lopez DOJ, 393 F.3d 1345, 1349 (D.C. Cir. 2005) (quoting Doe DiGenova,
779 F.2d 74, n.11 (D.C. Cir. 1985)). Although such subpoena likely falls under Rule
6(e) purview for instance, when betrays the direction the relevant investigation, id.
1350 the Government broad summary its generic subpoenas starts with somewhat more
tenuous claim secrecy.
More importantly, the D.C. Circuit case law reflects the common-sense proposition
that secrecy longer necessary when the contents grand jury matters have become
public. Grand Jury Subpoena, Judith Miller, 438 F.3d 1138, 1140 (D.C. Cir. 2006).
this case, the Government has already revealed that issued grand-jury subpoenas Clinton
service providers. See First Decl., That information, then, sufficiently widely known
[such] that has lost its character Rule 6(e) material. North, F.3d 1234, 1245 (D.C.
Cir. 1994). After reviewing the Second Declaration camera, the Court confirms that
disclosure thereof would imperil little other secret information.
The Second Declaration consists paragraphs, six which are redacted. See Second
Decl., 1-11. The first three redacted paragraphs (mistakenly labeled Paragraphs and
largely confirm what the Government had discussed [the] first declaration namely, that
Clinton used two Blackberry email accounts between January 21, 2009, and March 18, 2009.
Cf. First Decl., (describing her use and during that time period). then overviews, the First Declaration did,
the agency efforts recover those emails, including grand-jury subpoenas. Cf. id., 10.
Paragraph lists the identities subpoena recipients. Here, Defendants make their first
(and only) case for confidentiality: they ask the Court shield those identities, secrecy
critical maintaining positive working relationships with [the providers] and other similarly
situated companies. Def. Opp. This argument might have more force had Defendants not
already made public that the FBI issued grand-jury subpoenas providers, and Clinton
used BlackBerry device with service initially from Cingular Wireless and later ATT
wireless. First Decl., not hard connect the dots. See Josh Gerstein, FBI Confirms
Grand Jury Subpoenas Used Clinton Email Probe, Politco (Apr. 27, 2017), Priestap did not provide details about the subpoenas, although suggested they were
served ATT Wireless and firm acquired, Cingular. There thus little value
redacting those identities, with one exception: the Second Declaration states that the FBI also
subpoenaed Clinton e-mail service provider. The agency has never previously disclosed the
identity that company and thus maintains interest its secrecy. For Plaintiffs, should
suffice know that the FBI subpoenaed third party (and not, they suggest, Clinton staff attorneys See Reply Defendants may therefore continue redact the email provider
Moving Paragraphs and the Declaration states that service providers retained
any data from Clinton accounts, and thus none could recover any relevant emails. The First
Declaration already said much. Cf. First Decl., Those paragraphs then add few more
particulars, such that the FBI complied with its statutory obligations requesting only
transaction information, like subject lines and e-mail addresses, from the service providers.
Any observer could likely surmise based U.S.C. 2703, which limits the scope
electronically stored information available with grand-jury subpoena. The declaration also
reveals that the FBI reissued subpoenas providers double check that data would
available. Again, the bottom line the same the FBI public disclosures: its subpoenas
produced responsive materials, the requested data was outside the retention time utilized those providers. First Decl., The Government asserts interest keeping those
details secret, and the Court detects overriding reason so.
That leaves Paragraph 10. This Paragraph, least ostensibly, adds new information
about the scope subpoenas: when the FBI discovered that Clinton had potentially transmitted
classified information private third-party e-mail accounts, sought additional legal process.
The paragraph might read suggest that the Bureau subpoenaed the provider information
third parties, such Clinton staff. But provides information which third parties had
classified information, which providers, any, were subpoenaed, and the returns any
subpoenas. And hardly news that the FBI used legal process recover classified
information relayed Clinton staffers. Most infamously, many news outlet reported that the
FBI obtained search warrant for Clinton aide Huma Abedin emails. See, e.g., Matt Apuzzo
al., Justice Department Obtains Warrant Review Clinton Aide Emails, N.Y. Times (Oct. 30,
2016). The First Declaration alludes the same incident. See First Decl., 14. Paragraph
like the much what came before thus reveals little secret information. The scale
therefore tips once again towards Plaintiffs need for disclosure.
Finally, Defendants note that even this Court does grant [Plaintiffs motion
[they] must then proceed the court which empaneled the grand jury issue, allow that
court make final determination about disclosure. See Def. Opp. Not so. true,
Defendants say, that when the court that empaneled the grand jury differs from the court
considering Rule 6(e) request, the two courts may cooperate. The latter, for instance, might
certify the question disclosure the grand-jury court. See, e.g., United States Alston, 491 Supp. 215, 216-217 (D.D.C. 1980). But the Supreme Court has made clear, [T]here will cases which the court whom the Rule 6(e) request directed will able intelligently decide that disclosure plainly inappropriate that justice requires immediate disclosure the requesting party, without reference the matter any other court. Douglas Oil, 441
U.S. 231. This such case. While the grand-jury court may typically better positioned evaluate the need for secrecy, the Defendants here have already let the grand-jury cat out
the bag. For the reasons discussed above, there little remaining information keep secret, and
this Court can therefore appropriately order disclosure.
For the foregoing reasons, the Court will substantially grant Plaintiffs Motion Produce
and order that the Government intends rely the Second Priestap Declaration, must
resubmit unredacted version (except the identity Clinton email provider).
contemporaneous Order that effect will issue this day.
/s/ James Boasberg
United States District Judge
Date: August 31, 2017