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Judicial Watch • JW v State Opposition Hillary Clinton 01363

JW v State Opposition Hillary Clinton 01363

JW v State Opposition Hillary Clinton 01363

Page 1: JW v State Opposition Hillary Clinton 01363


Number of Pages:16

Date Created:July 14, 2016

Date Uploaded to the Library:July 14, 2016

Tags:Finney, Opposition, clintonemail, exhibit, deposition, 01363, Abedin, hillary, Mills, email, Benghazi, Secretary, Hillary Clinton, clinton, committee, filed, White House, plaintiff, State Department, document, FBI, department, FOIA

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Case 1:13-cv-01363-EGS Document 106 Filed 07/14/16 Page THE UNITED STATES DISTRICT COURT
Civil Action No. 13-cv-1363 (EGS)
Plaintiff Judicial Watch, Inc., counsel, respectfully submits this reply Non-Party
Hillary Rodham Clinton Opposition Plaintiff Motion Depose Hillary Rodham Clinton,
Clarence Finney, and John Bentel.1 grounds therefor, Plaintiff states follows:
Secretary Clinton deposition necessary complete the record. Although certain
information has become available through investigations the Benghazi Select Committee, the
FBI, and the State Department Inspector General, well through Plaintiff narrowly tailored
discovery date, significant gaps the evidence remain. Only Secretary Clinton can fill these
gaps, and she does not argue otherwise. Secretary Clinton attempts re-litigate Plaintiff
motion for discovery and even challenges the Court prior ruling authorizing discovery. Each her claims lack merit. Plaintiff motion should granted.
Due the lengthy oppositions submitted Secretary Clinton and the State Department,
Plaintiff submitting separate responses even though some the issues overlap. the extent
the Court may have questions regarding the factual record, Plaintiff will address them the
upcoming oral argument otherwise requests the opportunity for supplemental briefing, the
Court believes necessary.
Case 1:13-cv-01363-EGS Document 106 Filed 07/14/16 Page
Secretary Clinton testimony essential.
While other entities have inquired about Secretary Clinton unprecedented use the system conduct official government business, only Judicial Watch, through
court approved discovery, has focused whether the creation and use the system was
intended deliberately thwart FOIA2 otherwise prevented the State Department from
complying with its FOIA and federal recordkeeping obligations.3 The Benghazi Select
Committee was authorized and directed conduct investigation about events surrounding the
2012 Terrorist Attack Benghazi Libya. See did not have
the authority nor was directed conduct investigation about the purpose for the system. Similarly, during his testimony before the House Oversight and
Government Reform Committee, FBI Director Comey twice explicitly stated that the FBI did not
investigate and could not conclude whether the system was attempt
Secretary Clinton and the State Department avoid compliance with FOIA other federal
recordkeeping statutes. See Was there any evidence Hillary Clinton attempting avoid compliance with the Freedom
Information Act? Th[at] was not the subject our criminal investigation, cant answer that court has squarely addressed the deliberately thwart FOIA standard. This Court has
suggested that evidence demonstrating that the State Department condoned the use the system would sufficient. Transcript February 23, 2016 Motion Hearing Transcript 60.
The State Department states, The Department Justice the process reviewing
the CEI decision, which was issued less than week ago. its face, however, the D.C. Circuit
focused not whether there intent thwart FOIA, but rather whether the agency has
ceded control the records. Def. Opp. 19.
Case 1:13-cv-01363-EGS Document 106 Filed 07/14/16 Page
sitting here. see also Exhibit Clinton Opp. [L]et ask you that, was the reason she set her own private server your judgment was because she wanted shield communications
from Congress and the public? cant say that.
The same holds true for the State Department Inspector General investigations. The
State Department Inspector General January 2016 report addresses only efforts undertaken
the Department State ensure that government records are properly produced response
FOIA requests involving past and current Secretaries State. Exhibit Clinton Opp. addition, the State Department Inspector General May 2016 report addresses efforts
undertaken the Department State preserve and secure electronic records and
communications involving the Office the Secretary. Exhibit Clinton Opp. Neither
investigation sought determine nor did either report address why the system
was created and used.
These other entities have not sought collect the evidence necessary for the Court
resolve the issue before it. The record, extensive not, incomplete. Judicial Watch
therefore seeks depose Secretary Clinton establish complete record possible from
which the Court can determine matter law, whether the Government has conducted
adequate search response Judicial Watch FOIA request. Order support its request depose Secretary Clinton, Plaintiff identified least six issue
areas which Secretary Clinton the only one that can complete the record. Secretary Clinton
does not assert that she does not have information about the six issue areas.
Nor does she assert that she does not have any additional information relevant this matter.
She merely argues that they are either complete irrelevant. This argument without merit.
Case 1:13-cv-01363-EGS Document 106 Filed 07/14/16 Page
The purpose for the system. Plaintiff knowledge, Secretary Clinton has never testified under oath why she
created and used the system conduct official government business. Her only
public statements the issue are unsworn. The only sworn testimony the issue hearsay
referencing those unsworn statements. response why did Secretary choose not have email account[,] Ms. Mills testified, don know that can speak for her. think
she spoken for this herself and said that part what she was seeking was obviously the
convenience being able use common device, and thats what she did. Mills
Deposition 172:20 173:4 (emphasis added). Similarly, Ms. Abedin testified the Benghazi
Select Committee that Secretary Clinton has publicly said she did matter
convenience. Ex. Clinton Opp. 188. Neither Ms. Mills nor Ms. Abedin testified that
they had spoken Secretary Clinton about the purpose for the system. Mills
Deposition 45:7 45:20 and Abedin Deposition 71:16 73:2. Secretary Clinton
opposition only highlights the fact that witness has been able fully and definitively answer
the question why Secretary Clinton created and used the system conduct official
government business. They only testified could any member the public for that matter what they heard Secretary Clinton say publicly.
The evidence also suggests possible discrepancy with the FBI findings about the
creation the system. Clinton Opp. The domain name was registered January 21, 2009. The email address was created shortly
thereafter. Neither the domain name nor the email address existed President Clinton
system. Ms. Mills testified that President Clinton office originally hosted its office staff email
Case 1:13-cv-01363-EGS Document 106 Filed 07/14/16 Page Apple server, and that 2009, their email was migrated newer server that was
acquired from excess equipment available from Secretary Clinton 2008 presidential
campaign. Non-Party Cheryl Mills Responses Plaintiff Interrogatories 4-5. Since the
evidence shows that the email system was created and initially used late
January 2009, appears though the evidence may conflict with the FBI finding that the system was existing system her husband had and she decided have
domain that system. Clinton Opp. addition, Secretary Clinton practice corresponding with State Department officials their State Department email accounts far from definitive evidence that the purpose for the system was not deliberately thwart FOIA otherwise prevented the State
Department from complying with its FOIA and federal recordkeeping obligations. Clinton Opp. The evidence demonstrates otherwise.
First, Ms. Lang, the State Department 30(b)(6) witness, testified that the State
Department could not reasonably search for records responsive FOIA requests for Secretary
Clinton emails based her practice because order search, for example, for Secretary
Clinton emails, they were stored other custodians electronic archives, would not
possible that except searching individual custodian individual custodian, would not reasonably possible because the department has 70,000 employees possible. Lang
Deposition 103:20 104:10.
Second, noted Plaintiff motion, Ms. Mills, Secretary Clinton chief staff,
always was fully aware that the proper method respond FOIA request search
employee email account for her records. Mills Deposition 194:22 196:8. Ms. Abedin also
Case 1:13-cv-01363-EGS Document 106 Filed 07/14/16 Page
was aware that her email account could searched response FOIA request for her
records. Abedin Deposition 111:7 112:10.
Third, there dispute that Secretary Clinton times abandoned her own practice and
corresponded with State Department employees, such Ms. Abedin, only their
email accounts. This demonstrates that, minimum, even following her own practice,
Secretary Clinton had ample opportunity shield some her emails from the public.
Fourth, the fact that Under Secretary Kennedy, Executive Secretary Mull, and Deputy
Executive Secretary Lukens all testified that they did not have were not aware any concerns
about Secretary Clinton email not being subject FOIA (Clinton Opp. 8-9) only raises
additional questions. See Plf. Mot. see also Kennedy Deposition 48:11 49:20; 50:3
50:7; Mull Deposition 132:8 133:5; Lukens Deposition 82:19-22. addition, both
Executive Secretary Mull and Mr. Bentel reminded Secretary Clinton staff about her FOIA
obligations. Mull Deposition Exhibit Exhibit document Plf. Mot. Evidence that
senior agency officials responsible for records management did not follow such issues
raise any such concerns suggests that, minimum, the State Department condoned Secretary
Clinton use the system.
Secretary Clinton opposition also ignores the striking evidence that Clarence Finney,
the State Department official responsible for the day-to-day management the secretary
records, including FOIA responses for those records, had knowledge about her use the system. Lang Deposition 165:19 166:1. Nor did apparently know
about her alleged practice corresponding with State Department officials their State
Department email accounts. Lang Deposition 97:12 98:4. This raises serious questions
Case 1:13-cv-01363-EGS Document 106 Filed 07/14/16 Page
because, Ms. Mills testified, Secretary Clinton was contact with Mr. Finney every day.
Mills Deposition 262:7 263:1. Only Secretary Clinton can answer questions about why she
chose not inform Mr. Finney about her use the system.
Moreover, witness has provided any testimony why Secretary Clinton continued
her email practice even though her legal obligations concerning her records changed. U.S.
Senator, Secretary Clinton was not subject FOIA. Secretary State, her records
conducting State Department business undisputedly were subject FOIA and other federal
recordkeeping statutes. The evidence far does not reveal what Secretary Clinton was thinking
when she decided continue her practice using unofficial email address light her new
position cabinet secretary. Notably, Secretary Clinton does not address this issue her
The fundamental question about why Secretary Clinton created and used the system remains unanswered. All admissible evidence shows that only
Secretary Clinton can answer the question. Her testimony essential.
Secretary Clinton continued use the system.
Secretary Clinton asserts that she continued use the system, even
though appeared have suffered multiple and repeated technical problems over the four years
that she was secretary,4 because the State Department system also had problems. Clinton Opp. This makes little sense Secretary Clinton has asserted repeatedly that she created the
Contrary Secretary Clinton and the State Department claims, the issues with the were not short-term inconveniences. The evidence shows that Secretary
Clinton faced difficulties for least more than two years. See, Mull Deposition Exhibits
and Exhibit documents and see also Mills Deposition Exhibit
Case 1:13-cv-01363-EGS Document 106 Filed 07/14/16 Page
system for convenience. the other hand, had Secretary Clinton used email
account, the State Department would not have had cope with significant issues such the
ability emails transmitted through Secretary Clinton email account reach State
Department officials and employees using their email accounts. Use
account also would have enabled Secretary Clinton utilize the extensive State Department
resources intended ensure that her communication systems functioned properly. addition, contrary Secretary Clinton assertion (Clinton Opp. 10), she did not
write email that she did not want her personal emails accessible. She wrote,
Let get separate address device but don want any risk the personal being accessible.
When asked about the email, Ms. Abedin testified that she does not recall discussing the email
with Secretary Clinton and that she only thinks she knows what the secretary meant the email.
Abedin Deposition 189:1 189:14. There evidence whatsoever that speaks what
Secretary Clinton meant don want any risk the personal being accessible[,] and the
meaning not readily apparent its face. Only Secretary Clinton can provide answer
what she meant and why she continued use the flawed system.
Secretary Clinton claim over her emails.
The most startling argument Secretary Clinton opposition her claim that the email account, which was hosted private server equipment, was possessed privately under
claim right, and has never been the property the possession control the State
Department. Clinton Opp. 11. appears that Secretary Clinton now arguing that she
personally possessed claim right the approximately 30,000 emails that she belatedly
returned the State Department well the thousands other official government emails
Case 1:13-cv-01363-EGS Document 106 Filed 07/14/16 Page
that she never did return the State Department. This assertion directly contrary previous
representations made both the State Department and Secretary Clinton indicating the State
Department right and control over the emails. See Letter from Undersecretary Patrick
Kennedy David Kendall (March 23, 2015), attached Exhibit see also Letter from
David Kendall the Hon. Trey Gowdy (March 27, 2015), attached Exhibit Secretary Clinton not position produce any those emails the Committee
response the subpoena without approval from the State Department. What exactly she
means this new assertion highly relevant the issue before this Court and only Secretary
Clinton can provide such evidence. addition, this new claim highlights the fact that other
critical questions remain unanswered. These questions include whether the system was
allowed, whether the State Department authorized the system use, and whether the State
Department maintained constructive control or, conversely, ceded control over the emails the
Still unanswered the basic question whether Secretary Clinton use the system was authorized the State Department. Secretary Clinton continues suggest that the use the system was allowed. Clinton Opp. 8-9. The State Department
correctly points out, however, that [d]iscovery has produced evidence that Secretary
Clinton use personal email account was approved State. Def. Opp. 17. The State
Department itself still coyly refuses state whether Secretary Clinton received approval.
Unanswered questions also remain about what discussions Secretary Clinton had with State
Department officials and why she believes that the State Department approved her use the system conduct official government business.
Case 1:13-cv-01363-EGS Document 106 Filed 07/14/16 Page
Secretary Clinton also misconstrues the applicability Competitive Enterprise Institute Office Science and Technology, Case No. 15-5128 (D.C. Cir. July 2016). Whether the
case directly point irrelevant. The pertinent point what the D.C. Circuit believes are
the relevant factors when agency required search private email account controlled agency head. Competitive Enterprise Institute, Case No. 15-5128, slip. op. Knowing
whether the system was formally authorized even informally allowed key component
understanding why the system was created and the legal status the records the system.
Secretary Clinton alone can shed light this issue.
Finally, there evidence the record about whether Secretary Clinton thought FOIA
applied the emails relating State Department business the system.
Abedin Deposition 115:17 116:3. Secretary Clinton argues that she has already provided
such testimony the Benghazi Select Committee (Clinton Opp. 11); however, not readily
apparent that she did. The extent Secretary Clinton testimony was that she believed that all her emails relating State Department business were being captured and preserved. Ex. Clinton Opp. 425. She has not answered the question whether she understood that her
emails conducting State Department business through the system were subject FOIA. Again, only Secretary Clinton has such answers.
Secretary Clinton inventorying records.
Secretary Clinton entire response this line inquiry that Secretary Clinton was
not the meeting and that she was not the person inventorying her records. Clinton Opp.
12. Secretary Clinton argues that because she was not the meeting and did not physically
place records boxes, she did not have the ultimate responsibility for the inventorying her
Case 1:13-cv-01363-EGS Document 106 Filed 07/14/16 Page
records. This cannot the case. All the staff who inventoried the records worked for the
secretary. Their jobs were provide logistical support Secretary Clinton. Also, the emails
conducting State Department business were sent received Secretary Clinton. Only she had
access them. Mills Deposition 188:3 188:14 (The Executive Secretariat staff did not
have access her email account. The emails could only inventoried she permitted it. addition, everyone who was the meeting with Finney and was responsible for
inventorying Secretary Clinton records knew about the use the system
conduct official government business, yet not one shared this information with Mr. Finney. Only
Secretary Clinton can testify whether she provided instructions staff with respect
inventorying the official emails the system and, not, why such
instructions were not provided. Abedin Deposition 143:11 143:15.
Secretary Clinton choice type email system.
Plaintiff does not seek answers about Secretary Clinton choice the type email
system she used conduct official government business because what she could could not
retrieve from the ATT account that she used early her tenure. Clinton Opp. 13. The type email system Secretary Clinton used significant because the type system she selected did
not allow for archiving. Plf. Mot. 11. Director Comey suggested that she had used email account even commercially available email system, her emails would have
been archived the normal course. Statement FBI Director James Comey the
Investigation Secretary Hillary Clinton Use Personal E-Mail System, available Because she
Case 1:13-cv-01363-EGS Document 106 Filed 07/14/16 Page
was not using government account even commercial account like Gmail there was
archiving all her e-mails Instead, Secretary Clinton decided use system that
apparently did not preserve her official emails for future use, access, and review. This troubling
choice raises further questions about the purpose the system. Discovery
date has shown that one but Secretary Clinton can answer questions about her decision use non-archiving system conduct official government business.
Mr. Pagliano role creating and operating the system.
Notably absent from Secretary Clinton opposition any discussion about the lack
evidence concerning the information technology services that Mr. Pagliano provided Secretary
Clinton while she was employed the State Department. Abedin Deposition 61:6 63:12;
70:3 70:12; Mills Deposition 93:14 94:8; 160:10 161:4; and Kennedy Deposition
70:13 73:15. Because Mr. Pagliano invoked his Fifth Amendment right against selfincrimination, and other witness could provide meaningful testimony about the work may
have performed the system, either for the State Department for Secretary
Clinton, Plaintiff has been unable obtain evidence from this important source. Secretary
Clinton has not disputed that she has this relevant information. Her deposition necessary.
Secretary Clinton deposition appropriate under the circumstances.
While rare, Secretary Clinton does not dispute that court can require former top
official appear for deposition extraordinary circumstances. Clinton Opp. 14-15
(citing Simplex Time Recorder Company Secretary Labor, 766 F.2d 575, 586 (D.C. Cir.
1985) (top official can required testify extraordinary circumstances regarding their
reasons for taking official actions This the extraordinary case. issue the
Case 1:13-cv-01363-EGS Document 106 Filed 07/14/16 Page
unprecedented use unofficial system the Secretary State and her deputy chief staff conduct official government business and communicate with fellow State Department
employees and other federal government employees, including those the White House, well foreign leaders and other interested individuals. Although the system was used exclusively
Secretary Clinton for four years, the public did not know about until the State Department and
Secretary Clinton only acknowledged the system when compelled New York Times
report March 2015, two years after she had left office. this Court has stated previously,
This very troubling case. Transcript pp. 63-64. addition, Judge Lamberth has
characterized Secretary Clinton use the system extraordinary.
Judicial Watch, Inc. U.S. Department State, No. 14-cv-1242, 2016 U.S. Dist. LEXIS 41183
(D.D.C. Mar. 29, 2016). there was ever appropriate time for the deposition former
agency head, this it. addition, Secretary Clinton does not dispute that she has the relevant information that
Plaintiff seeks. She only argues that the identified issues have been answered are irrelevant. Plaintiff demonstrates above, that assertion meritless. the Court agrees that Secretary Clinton has relevant information and the circumstances
are extraordinary, the Court should order Secretary Clinton sit for deposition instead
submitting information writing. Secretary Clinton has not stated that she could not
available for three-hour deposition time and location most convenient her. Nor will
written discovery sufficient. The ability ask follow-up questions, explore and understand
answers cannot accomplished through declaration interrogatory responses prepared for
witness lawyer. Numerous declarations also have already been filed this case. This
Case 1:13-cv-01363-EGS Document 106 Filed 07/14/16 Page
includes the declaration Secretary Clinton, about which Plaintiff has significant questions and
Secretary Clinton fails address. Plf. Mot. addition, this Court noted, there has been constant drip, declaration drip. Transcript 38. The deposition Secretary Clinton
the most efficient and effective means discover the information pertinent this case. Any
written discovery would most likely lead extended negotiations and more proceedings.
Finally, the deposition Secretary Clinton will not futile. Until the Court determines
whether the State Department has conducted adequate search response Judicial Watch
FOIA request, discussion about remedies premature. Transcript 39-45. addition,
subpoena Secretary Clinton (Clinton Opp. 15-16) not the only available remedy. The
Court also could order the State Department search all archived and active email accounts
former and current State Department employees that may have communicated with Secretary
Clinton email. The Court also could order the State Department subpoena other
government agencies other pertinent entities for emails from Secretary Clinton. The Court
does not need undertake analysis potential remedies until rules the sufficiency
the search, and should not even attempt resolve that issue until the record complete.
The Court should not reconsider its discovery order.
Secretary Clinton argues that this Court lacked jurisdiction the outset order
discovery this case. Clinton Opp. 16-20. Secretary Clinton desire reargue claims that
have already been rejected not adequate justification for reconsideration. She offers
change law, fact other reason that this Court should revisit its previous analysis
Kissinger, other than the startling assertion that she has claim right all emails which
she conducted official government business. the Court stated:
Case 1:13-cv-01363-EGS Document 106 Filed 07/14/16 Page
The Court unpersuaded the State Departments reliance Kissinger. The
Kissinger Court explicitly did not address whether the withholding standard
must measured from the time request received under circumstances where shown that agency purposefully routed document out agency
possession order circumvent FOIA request. Id. 167, Here,
Judicial Watch alleges that the State Department and Mrs. Clinton sought
deliberately thwart FOIA through the creation and use Pl.
Mot. Discovery, Docket No. This allegation goes directly the type
circumstance Kissinger did not address.
Order 10-11.
The Court already has found that Kissinger does not apply the unprecedented situation
currently before the Court. There reason revisit this ruling light the law the case
doctrine, which provides that [w]here issues have been resolved prior state the litigation,
based upon principles judicial economy, courts generally decline revisit [them]. New York Microsoft, 209 Supp. 132, 141 (D.D.C. 2002). The law the case doctrine bars
reconsideration court explicit decisions [in earlier phases case] well those issues
decided necessary implication. Id. (citing Crocker Piedmont Aviation, Inc., F.3d 735,
739 (D.C. Cir. 1995); LaShawn Barry, F.3d 1389, 1394 (D.C. Cir. 1996) (en banc) [T]he same issue presented second time the same case the same court should lead the
same result. The fact that Secretary Clinton counsel seeks participate not legitimate
reason for the Court revisit its ruling.
Similarly, court should grant motion for reconsideration interlocutory order
only when the movant demonstrates: (1) intervening change the law; (2) the discovery
new evidence not previously available; (3) clear error the first order. BEG Investments,
LLC Alberti, Supp. 54, (D.D.C. 2015) (quoting Stewart Panetta, 826 Supp. 176, 177 (D.D.C. 2011)). District courts should guided the general principles
Case 1:13-cv-01363-EGS Document 106 Filed 07/14/16 Page
underlying the [law-of-the-case] doctrine applying these factors the reconsideration
interlocutory orders. Sloan Urban Title Services, Inc., 770 Supp. 216, 224 (D.D.C.
2011). Secretary Clinton has not demonstrated that any those factors apply this case. All
that she argues that the court should reconsider its ruling because her counsel respectfully
submit the Court was incorrect. Clinton Opp. 19.
For the reasons set forth Plaintiff initial brief and the additional reasons stated above,
Plaintiff respectfully requests that the Court authorize Plaintiff take the depositions Hillary
Clinton, Clarence Finney, and John Bentel within four weeks.
Dated: July 14, 2016
Respectfully submitted,
/s/ Michael Bekesha
Michael Bekesha
D.C. Bar No. 995749
425 Third Street S.W., Suite 800
Washington, 20024
(202) 646-5172
Counsel for Plaintiff Judicial Watch, Inc.