JW v State Opposition Hillary Clinton 01363
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Case 1:13-cv-01363-EGS Document 106 Filed 07/14/16 Page 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 REPLY NON-PARTY HILLARY RODHAM CLINTON OPPOSITION 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: Introduction. 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 II. Argument. Secretary Clinton testimony essential. While other entities have inquired about Secretary Clinton unprecedented use the clintonemail.com 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 http://benghazi.house.gov/about. did not have the authority nor was directed conduct investigation about the purpose for the clintonemail.com 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 clintonemail.com system was attempt Secretary Clinton and the State Department avoid compliance with FOIA other federal recordkeeping statutes. See http://www.c-span.org/video/?c4609578/scope-clinton-investigation 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 clintonemail.com 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. -2- 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 clintonemail.com 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. -3- Case 1:13-cv-01363-EGS Document 106 Filed 07/14/16 Page The purpose for the clintonemail.com system. Plaintiff knowledge, Secretary Clinton has never testified under oath why she created and used the clintonemail.com 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 State.gov 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 clintonemail.com 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 clintonemail.com was registered January 21, 2009. The email address firstname.lastname@example.org 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 -4- 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 clintonemail.com email system was created and initially used late January 2009, appears though the evidence may conflict with the FBI finding that the clintonemail.com 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 clintonemail.com 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 -5- 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 non-state.gov 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 clinonemail.com 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 clintonemail.com 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 -6- 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 clintonemail.com 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 opposition. The fundamental question about why Secretary Clinton created and used the clintonemail.com 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 clintonemail.com 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 clintonemail.com 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 -7- Case 1:13-cv-01363-EGS Document 106 Filed 07/14/16 Page system for convenience. the other hand, had Secretary Clinton used state.gov 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 state.gov email accounts. Use state.gov 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 clintonemail.com 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 -8- 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 system. Still unanswered the basic question whether Secretary Clinton use the clintonemail.com 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 clintonemail.com system conduct official government business. -9- 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 clintonemail.com 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 clintonemail.com 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 clintonemail.com 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 clintonemail.com 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 state.gov 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 https://www.fbi.gov/news/pressrel/press-releases/statement-by-fbi-director-james-b.-comey-onthe-investigation-of-secretary-hillary-clintons-use-of-a-personal-e-mail-system 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 clintonemail.com 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 clintonemail.com 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 clintonemail.com 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 clintonemail.com. 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. III. Conclusion. 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 JUDICIAL WATCH, INC. 425 Third Street S.W., Suite 800 Washington, 20024 (202) 646-5172 Counsel for Plaintiff Judicial Watch, Inc.