JW v State Clinton Finney Bentel depositions 01363
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THE UNITED STATES DISTRICT COURT FOR THE DISTRICT COLUMBIA JUDICIAL WATCH, INC., Plaintiff, U.S. DEPARTMENT STATE, Defendant. Civil Action No. 13-cv-1363 (EGS) PLAINTIFF MOTION DEPOSE HILLARY CLINTON, CLARENCE FINNEY, AND JOHN BENTEL Plaintiff Judicial Watch, Inc., counsel and pursuant the Court May 2016 Memorandum and Order, respectfully moves for the depositions Hillary Clinton, Clarence Finney, and John Bentel. grounds therefor, Plaintiff states follows: STATEMENT POINTS AND AUTHORITIES This Court has concluded that questions surrounding the creation, purpose and use the clintonemail.com server must explored through limited discovery before the Court can decide, matter law, whether the Government has conducted adequate search response Judicial Watch FOIA request. May 2016 Memorandum and Order Order attempt uncover admissible evidence shed light these questions and based the limited information known the time, Plaintiff submitted narrowly tailored discovery plan that identified eight individuals Plaintiff sought depose. After discussions with Defendant, Plaintiff narrowed the list deponents seven. The Court approved the parties jointly submitted discovery plan May 2016. The authorized discovery concluded June 29, 2016, within the time period allowed the Court. Plaintiff took the depositions the seven witnesses, obtained answers its interrogatories, and received certain documents identified the May 2016 Office the Inspector General OIG report. Transcripts and videotapes the depositions, well the May 2016 OIG report, have been provided the Court, and the interrogatory answers and documents referenced above are attached exhibits this motion.1 Although significant progress has been made uncovering evidence concerning the creation and use the clintonemail.com system and the State Department approach and practice for processing FOIA requests potentially implicating Secretary Clinton and Ms. Abedin emails, important questions remain concerning whether the State Department and Secretary Clinton attempted deliberately thwart FOIA creating and using off-grid record system conduct official State Department business. its Order, the Court directed that Plaintiff must seek the Court permission conduct discovery beyond the depositions and the interrogatories identified the parties. Order 15. The Court also stated, Based information learned during discovery, the deposition Mrs. Clinton may necessary. Plaintiff believes Mrs. Clinton testimony required, will request permission from the Court the appropriate time. Id. 14. After concluding the discovery authorized the Court, Plaintiff believes necessary depose three additional witnesses: Secretary Clinton, Clarence Finney, and John Bentel.2 Defendant Responses and Objections Plaintiff Interrogatories are attached Exhibit The documents identified the May 2016 OIG report are attached Exhibit Plaintiff intends depose these individuals within four weeks the Court order Plaintiff motion. Plaintiff anticipates that additional discovery will needed this case. -2- Hillary Clinton. Plaintiff still does not have definitive answers why Secretary Clinton created the clintonemail.com system, why she continued use the system even though malfunctioned times and interfered with her and other State Department officials ability perform their official duties, what Secretary Clinton understood were her federal recordkeeping and FOIA obligations with respect her official emails, the inventorying Secretary Clinton records the conclusion her tenure office, and what exactly was Mr. Pagliano role creating and operating the clintonemail.com system. Secretary Clinton necessary try definitively answer these and other questions. The purpose for the clintonemail.com system. Plaintiff anticipated that Ms. Mills and Ms. Abedin might provide testimony about why Secretary Clinton created and used the clintonemail.com system conduct official government business. However, neither Ms. Mills nor Ms. Abedin spoke with Secretary Clinton about the purpose for the clintonemail.com system. See Mills Deposition 45:7 45:20; see also Abedin Deposition 71:16 73:2. Both could only testify that they understood Secretary Clinton use the clintonemail.com system conduct official government business was continuation her general practice using personal email account conduct government business. See Mills Deposition 45:7 45:20; see also Abedin Deposition 71:16 73:2. They only understood this the case because they started receiving emails from Secretary Clinton from the clintonemail.com email address the normal course business. See Mills Deposition 45:7 45:20; see also Abedin Deposition 71:16 73:2. Therefore, neither witness could provide evidence about why Mrs. Clinton continued this practice Secretary State. Id. This especially significant because, U.S. -3- senator, Mrs. Clinton emails were not subject federal recordkeeping statutes FOIA. Secretary State, however, Mrs. Clinton emails conducting official government business were subject federal recording keeping statutes and FOIA.3 Moreover, although Secretary Clinton made extensive use her unofficial email account conduct official, State Department business, Ambassador Lukens testified that believed she used the account communicate with friends and family only, and Ambassador Mull testified that did not know whether Secretary Clinton was using the account for personal official business and had basis for knowing what she was using her BlackBerry for. Lukens Deposition 82:19-22; Mull Deposition 132:8 133:5. Both these witnesses were from the Executive Secretariat the office charged with managing the secretary records, and their testimony raises questions about what they and others were told about the purpose the system. Accordingly, Secretary Clinton testimony necessary determine the purpose for the creation and use the clintonemail.com system and what the department was told about the purpose the account. Secretary Clinton continued use the system even though, times, interfered with her job secretary. The clintonemail.com system appears have suffered from multiple, repeated technical problems, weather related disruptions, and known incidents hacking. See, e.g., Mull Deposition Exhibits and Exhibit documents and one occasion, technical problem with the system caused Secretary Clinton missed telephone call with foreign minister because email from the clintonemail.com system never made its way the appropriate State Department employees. See Abedin Deposition 184:21 185:4. Both Importantly, Ms. Abedin testified that she knew that her emails the clintonemail.com system relating official government business were subject FOIA. See Abedin Deposition 115:9 115:16. -4- Secretary Clinton and Ms. Abedin were frustrated the failure. Id. 185:15 186:1. During the incident, Mrs. Clinton commented Ms. Abedin email, This not good system. See Exhibit document Ms. Abedin responded, should talk about putting you state email releasing your email address the department you are not going spam. Id. Mrs. Clinton replied, Let get separate address device but don want any risk the personal being accessible. See Exhibit document Secretary Clinton continued use her clintonemail.com system, however, and one month later the systems suffered from another set technical issues that caused Ms. Abedin contacted the Office Information Resource Management the Executive Secretariat S/ES-IRM See Exhibit document response, S/ES-IRM worked with the State Department general information technology department resolve issues affecting the ability emails transmitted through Secretary Clinton email account reach State Department officials and employees using their state.gov email accounts. See id. The following month, the system had shut down because hacking, causing Ms. Abedin email Ms. Mills and Jacob Sullivan, Don email [Secretary Clinton] anything sensitive. can explain more person. Exhibit document Secretary Clinton testimony necessary determine why she continued using this flawed system conduct official government business light these and other difficulties with the system. Mrs. Clinton understanding her federal recordkeeping and FOIA obligations. Plaintiff believed that Executive Secretary Mull other current State Department could testify whether Secretary Clinton understood her federal recordkeeping and FOIA obligations with respect her emails conducting official government business. However, witness was able -5- testify whether Secretary Clinton was advised use state.gov email account conduct official government business whether the State Department authorized Secretary Clinton use non-state.gov email account conduct official government business. See e.g., Mull Deposition 86:7 86: and Abedin Deposition 36:5 36:18; 78:5 78:11. Similarly, witness was able testify whether Secretary Clinton knew her FOIA obligations with respect the emails she used conduct official government business. See e.g., Abedin Deposition 115:17 116:3. Ms. Abedin also testified that, order get answer that question, Plaintiff would have ask Mrs. Clinton. See id. Ms. Abedin also testified that she did not know how Secretary Clinton managed her clintonemail.com inbox during her tenure secretary whether she deleted emails conducting official government business. See Abedin Deposition 121:12 121:14. Whether Secretary Clinton understood her federal recordkeeping and FOIA obligations with respect her emails and whether she preserved her emails are important questions determining whether the secretary and the State Department deliberately thwarted FOIA. Mrs. Clinton testimony necessary for these additional reasons. Mrs. Clinton inventorying records upon completion her tenure secretary. Prior Ms. Abedin testimony, Plaintiff was not aware meeting between Mr. Finney, Ms. Abedin and others from the Office the Secretary about what records Secretary Clinton and her staff were allowed take with them when they left the State Department with the end Secretary Clinton tenure. See Abedin Deposition 46:3 46:17; 135:18 141:22. For example, the meeting, Mr. Finney informed the staff that they were required return their blackberries and that the only materials were allowed leave with the State Department were our personal photos that may have been taken our State Department blackberries and -6- our contacts. See id. 137:11 137:17. Importantly, those the meeting were the the support staff managing the paper records that Secretary Clinton had accumulated over her time the State Department [a]nd the staff was doing that behalf her paper records, well. See id. 141:18 141:22. addition, Ms. Abedin testified that she not aware any instructions provided Secretary Clinton with respect State Department emails the clintonemail.com system. See id. 143:11 143:15. Nor does Ms. Abedin remember she anyone else asked Secretary Clinton for any instructions with respect State Department emails the clintonemail.com system. Id. 143:16 143:21. Secretary Clinton testimony therefore necessary determine whether she knew her obligations leaving State Department emails with the State Department upon her departure and what she was thinking when she left the State Department with least 30,000 emails which she conducted State Department business. Mr. Pagliano role was creating and operating the clintonemail.com system. Plaintiff anticipated that the witnesses whose depositions had been authorized the Court would provide information about the role Mr. Pagliano played the creation and operation the clintonemail.com system. That information important because Mr. Pagliano worked information technology specialist for Mrs. Clinton 2008 presidential campaign before being appointed noncareer technology position the State Department Bureau Information Resources Management, and appears have provided information technology services for Secretary Clinton and/or former President Clinton private capacity while employed the State Department. Abedin Deposition 61:6 63:12; 70:3 12; Mills Deposition 93:14 94:8; 160:10 161:4; Kennedy Deposition 70:13 73:15. addition, State Department -7- employee Mr. Pagliano assisted the department resolving issues affecting the ability emails transmitted through Mrs. Clinton email account reach State Department officials and employees using their state.gov email accounts. See Exhibit document the Court aware, however, Mr. Pagliano declined answer any questions concerning the creation and operation the clintonemail.com system well any questions concerning his relationship with Secretary Clinton relates the creation and operation the system. See generally Pagliano Deposition. other witness could provide meaningful testimony about how why Mr. Pagliano was hired the State Department the work may have performed the clintonemail.com system, either for the State Department for the secretary and/or President Clinton. result, Mrs. Clinton testimony necessary develop full understanding Mr. Pagliano role creating and operating the clintonemail.com system. *** Plaintiff recognizes the significance asking presumptive nominee for president sit for deposition. Plaintiff therefore concurrently providing copy this motion Secretary Clinton attorney. addition, Plaintiff proposes that depose Secretary Clinton time and place most convenient her schedule and that the deposition not exceed three hours length. II. Clarence Finney. Ms. Abedin testified, Secretary Clinton use the clintonemail.com system conduct official government business was not secret the Office the Executive Secretariat with senior officials the State Department. See Abedin Deposition 52:9 52:10; 174:7 174:10; 220:19 220:21. However, the evidence suggests that the office -8- responsible for managing Secretary Clinton records was not aware the clintonemail.com system even though inquiries were made about the secretary use blackberry. Therefore, questions remain about how and why the office responsible for records management Secretary Clinton email did not know about her use clintonemail.com system conduct official government business. The State Department identified Mr. Finney the Director Office Correspondence and Records the Executive Secretariat S/ES-CRM which had day-to-day responsibility for records management and research, including conducting and coordinating searches response FOIA requests, during Secretary Clinton and Ms. Abedin tenure.4 See Exhibit 1-2. His responsibility included determining what searches were conducted within the Office the Secretary response FOIA requests. See Lang Deposition 35:19 36:7. addition, State Department identified Mr. Finney the head the office responsible for inventorying other accounting Secretary Clinton and Ms. Abedin emails. See Exhibit 3-4. Mr. Finney therefore has personal knowledge about how Secretary Clinton records were managed and how FOIA requests for Secretary Clinton records were processed while she was secretary.5 addition, most the testimony provided Karin Lang, the State Department 30(b)(6) designee, came from Mr. Finney. Not only did Ms. Lang testify that she spoke with Mr. When asked whether the Office the Executive Secretariat had its own FOIA guidance operating procedures, Ambassador Mull testified that could not recall any specific document but that Mr. Finney was aware his responsibilities, based his assurances. See Mull Deposition 39:7 39:15. When asked about whether Secretary Clinton communicated with the folks responsible for records the Executive Secretariat[,] Ms. Mills testified, She engaged with them every day. Part her day-to-day engagement would with her special assistants, with the Executive Secretary himself herself, whoever was the Exec[utive] Secretary. She was routine communication and contact with them. See Mills Deposition 262:7 262:1. -9- Finney for more than three hours over the course approximately three four times preparation for her testimony (see Lang Deposition 66:9 66:18), she also testified that she called Mr. Finney during one the breaks her testimony find answers questions that arose during her deposition. See id. 186:5 187:3. Although Plaintiff had the opportunity learn some what Mr. Finney knew did not know about the clintonemail.com system, was through the filter Ms. Lang and limited the scope the 30(b)(6) deposition. This hindered Plaintiff ability gather all the relevant information. For example, Ms. Lang testified that after Mr. Finney saw photograph Secretary Clinton using blackberry checked with S/ES-IRM see the secretary was using state.gov email account. See id. 64:6 65:7. When asked about specifics Mr. Finney conversation with S/ES-IRM, the State Department objected the question being outside the scope the notice 30(b)(6) topic and instructed the witness not answer. See id. addition, Ms. Lang testified that she did not know Mr. Finney had any additional conversations with S/ES-IRM about Secretary Clinton use/non-use state.gov email account. See id. Moreover, Ms. Abedin testified that she and others from the Office the Secretary met with Mr. Finney discuss what records Secretary Clinton and her staff could bring the State Department the beginning the secretary tenure well what records they could take with them the end her tenure. Abedin Declaration 46:3 46:17; 135:18 141:22. Ms. Abedin also testified that she does not know whether Mr. Finney was aware that Ms. Abedin used her clintonemail.com email account conduct official government business that Secretary Clinton used her clintonemail.com email account conduct official government business. See id. 44:17 45:22; 46:18 46:21. Simply put, only Mr. Finney can provide testimony why did not know about Secretary Clinton use clintonemail.com system conduct official government business. III. John Bentel. Contrary Mr. Bentel public claims which were the reason why Plaintiff did not initially seek depose him the evidence strongly suggests that Mr. Bentel has specific knowledge about Secretary Clinton use the clintonemail.com system conduct official government business. also suggests that Mr. Bentel his staff failed inform Mr. Finney and others within S/ES-CRM the office responsible for maintaining the secretary records and overseeing searches those records response FOIA request that that Secretary Clinton was conducting official government business unofficial email system. The evidence also suggests, noted above, that when asked his staff about Secretary Clinton use nonstate.gov email account conduct government business, Mr. Bentel instructed them not discuss the issue. result, obtaining Mr. Bentel testimony essential determine what knew, when knew it, and why did not share the information with the appropriate State Department employees responsible for responding FOIA requests. Specifically, during Secretary Clinton tenure the State Department, Mr. Bentel was director S/ES-IRM, the office responsible for information technology for the Office the Secretary. that capacity, oversaw employees that helped facilitate Secretary Clinton use the clintonemail.com system. For example, noted above, employees within S/ES-IRM worked with the State Department general information technology department resolve issues affecting the ability emails transmitted through Secretary Clinton email account reach State Department officials and employees using their state.gov email accounts. See Exhibit document Mr. Bentel had been made aware the clintonemail.com server early March 2009, when review communications systems Secretary Clinton residence was undertaken and the server was identified Unclassified Partner System. See Exhibit document addition, the May 2016 OIG report found Mr. Bentel told employees his office that Secretary Clinton unofficial email system had been approved the department and instructed the employees not discuss the issue: Two staff S/ES-IRM reported OIG that, late 2010, they each discussed their concerns about Secretary Clinton use personal email account separate meetings with the then-Director S/ES-IRM. one meeting, one staff member raised concerns that information sent and received Secretary Clinton account could contain Federal records that needed preserved order satisfy Federal recordkeeping requirements. According the staff member, the Director stated that the Secretary personal system had been reviewed and approved Department legal staff and that the matter was not discussed any further. According the other S/ES-IRM staff member who raised concerns about the server, the Director stated that the mission S/ES-IRM support the Secretary and instructed the staff never speak the Secretary personal email system again. See OIG Report 40. Mr. Bentel also reminded Secretary Clinton staff about FOIA requirements. August 30, 2011, Monica Hanley, assistant Secretary Clinton, emailed Mr. Bentel and asked him what Secretary Clinton email address would [State Department blackberry]. response, Mr. Bentel stated, part, You should aware that any email would through the Department infrastructure and [be] subject FOIA searches. See Exhibit document Mr. Bentel reminder was forwarded Ms. Abedin. Finally, when Ms. Lang, the State Department 30(b)(6) designee, reached out Mr. Bentel prepare for the 30(b)(6) deposition, Mr. Bentel, through counsel, declined speak with Ms. Lang. See Lang Deposition 152:19 152:20. result, Plaintiff was unable learn through Ms. Lang about the relevant knowledge Mr. Bentel possesses. *** WHEREFORE, Plaintiff respectfully requests that the Court authorize Plaintiff depose Hillary Clinton, Clarence Finney, and John Bentel within four weeks. Dated: July 2016 Respectfully submitted, /s/ Michael Bekesha Michael Bekesha D.C. Bar No. 995749 JUDICIAL WATCH, INC. 425 Third Street S.W., Suite 800 Washington, 20024 (202) 646-5172 Counsel for Plaintiff Judicial Watch, Inc.