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Judicial Watch • JW v State Weiner laptop opposition 00684

JW v State Weiner laptop opposition 00684

JW v State Weiner laptop opposition 00684

Page 1: JW v State Weiner laptop opposition 00684

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Number of Pages:11

Date Created:May 23, 2018

Date Uploaded to the Library:May 30, 2018

Tags:clinton email scandal, WEINER, Comey, Hillary Clinton, Secretary, 00684, FBI, FOIA


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Case 1:15-cv-00684-BAH Document Filed 05/23/18 Page THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
JUDICIAL WATCH, INC.,
Plaintiff,
U.S. DEPARTMENT STATE,
Defendant.
Civil Action No. 15-cv-684 (BAH)
PLAINTIFF CROSS-MOTION FOR SUMMARY JUDGMENT
Plaintiff Judicial Watch, Inc., counsel and pursuant Rule 56(c) the Federal Rules Civil Procedure, hereby cross-moves for summary judgment against Defendant U.S.
Department State. grounds therefor, Plaintiff respectfully refers the Court the
accompanying Plaintiff Memorandum Points and Authorities Opposition Defendant
Motion for Summary Judgment and Support Plaintiff Cross-Motion for Summary
Judgment and Plaintiff Statement Undisputed Material Facts Support its Cross-Motion
for Summary Judgment.
Dated: May 23, 2018
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
Case 1:15-cv-00684-BAH Document Filed 05/23/18 Page THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
JUDICIAL WATCH, INC.,
Plaintiff,
U.S. DEPARTMENT STATE,
Defendant.
Civil Action No. 15-cv-684 (BAH)
PLAINTIFF MEMORANDUM POINTS AND AUTHORITIES OPPOSITION DEFENDANT MOTION FOR SUMMARY JUDGMENT
AND SUPPORT PLAINTIFF CROSS-MOTION FOR SUMMARY JUDGMENT
Plaintiff Judicial Watch, Inc., counsel and pursuant Rule 56(c) the Federal Rules Civil Procedure, respectfully submits this memorandum points and authorities opposition Defendant U.S. Department State Motion for Summary Judgment and support
Plaintiff Cross-Motion for Summary Judgment. grounds thereof, Plaintiff states follows:
Introduction.
The saga former Secretary State Hillary Clinton email usage and its effect the
Freedom Information Act well known. For six years, Defendant repeatedly informed
Plaintiff and other FOIA requesters that Defendant conducted searches its email systems
sufficient locate all records responsive FOIA requests. later learned that
startlingly incorrect. Secretary Clinton email system was never searched. After Defendant
requested Secretary Clinton return all her work-related emails, still did not know whether
Secretary Clinton provided Defendant with all her work-related emails. Therefore, one the
dozens FOIA cases concerning Secretary Clinton emails, Judge Sullivan ordered Secretary
Case 1:15-cv-00684-BAH Document Filed 05/23/18 Page
Clinton disclose, under penalty perjury, whether she had returned all work-related emails
Defendant.
Secretary Clinton testified that she directed all such emails returned and that,
information and belief, that had been done. later learned not all her work-related emails were
provided Defendant. fact, the Federal Bureau Investigation subsequently provided
Defendant with six discs Clinton-related emails. Many those emails had not been
previously returned Defendant Secretary Clinton, and Defendant continues produce them Plaintiff and the public. addition, the FBI located Clinton-related emails the laptop
Anthony Weiner, the ex-Congressman and husband Secretary Clinton Deputy Chief Staff
Huma Abedin, while was investigating whether exchanged sexually explicit
communications with teenage girls. The FBI has provided those emails Defendant, and
those emails that are issue this case.
According James Comey the FBI director the time the emails were located
Weiner laptop contained hundreds thousands emails Secretary Clinton. According
Defendant, only 3,000 those hundreds thousands emails were agency records and just
147 them were unique agency records. Defendant remains silent about how many emails
received from the FBI, whether the FBI provided Defendant all the hundreds thousands emails found Weiner laptop, how many emails Defendant reviewed, how Defendant
reviewed the emails, how many emails Defendant determined personal not agency
records, and how Defendant made such determinations. short, Defendant does not even attempt explain the discrepancy between the
hundreds thousands emails identified ex-Director Comey and the mere 3,000 emails
-2-
Case 1:15-cv-00684-BAH Document Filed 05/23/18 Page
identified Defendant. Plaintiff has trusted Defendant the past concerning Secretary
Clinton emails and such trust turned out misguided. Defendant has failed demonstrate conducted adequate search the emails found Anthony Weiner laptop.1 Plaintiff
therefore requests that Defendant Motion for Summary Judgment denied and that Plaintiff
Cross-Motion for Summary Judgment granted.
II.
Factual Background.
Plaintiff does not dispute Defendant recitation facts related the processing
Plaintiff FOIA request. See Memorandum Support Defendant Motion for Summary
Judgment Def Mem. 1-3. Defendant however fails address the most significant fact
this case: the FBI located hundreds thousands Clinton-related emails Weiner laptop.
According ex-Director Comey post-FBI book and several media interviews, the FBI
located hundreds thousands Secretary Clinton emails Weiners laptop. See Plaintiff
Statement Undisputed Material Facts Support its Cross-Motion for Summary Judgment see also Transcript, James Comeys interview with ABC News chief anchor George
Stephanopoulos, ABC NEWS (Apr. 15, 2018, available https://abcnews.go.com/Site/transcriptjames-comeys-interview-abc-news-chief-anchor/story?id=54488723); Transcript,
Conversation with Former FBI Director James Comey, THE WASHINGTON POST (May 2018,
available https://www.washingtonpost.com/blogs/post-live/wp/2018/05/08/transcript-aconversation-with-former-fbi-director-james-comey); Transcript, James Comey Fresh Air
The FBI Isn Anybodys Side, NPR (Apr. 17, 2018, https://www.npr.org/templates/
Plaintiff longer challenges Defendant withholding information contained within
three records responsive Plaintiff FOIA request.
-3-
Case 1:15-cv-00684-BAH Document Filed 05/23/18 Page
transcript/transcript.php?storyId=602849276); James Comey, Higher Loyalty 192-193 (2018). addition, ex-Director Comey informed the public that the FBI located thousands
emails from Secretary Clinton Blackberry domain Weiner laptop. See Plaintiff
Statement see also Transcript, James Comeys interview with ABC News chief anchor
George Stephanopoulos, ABC NEWS (Apr. 15, 2018, available https://abcnews.go.com/
Site/transcript-james-comeys-interview-abc-news-chief-anchor/story?id=54488723); Transcript,
James Comey Fresh Air The FBI Isn Anybodys Side, NPR (Apr. 17, 2018,
https://www.npr.org/templates/transcript/transcript.php?storyId=602849276); James Comey,
Higher Loyalty 192-193 (2018).
III.
Legal Standard. FOIA litigation, all litigation, summary judgment appropriate only when the
pleadings and declarations demonstrate that there genuine issue material fact and that the
moving party entitled judgment matter law. Anderson Liberty Lobby, Inc., 477
U.S. 242, 248 (1986); Fed. Civ. 56(c). reviewing motion for summary judgment under
FOIA, the court must view the facts the light most favorable the plaintiff. Weisberg U.S.
Department Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984).
IV.
Defendant Has Failed Demonstrate that Conducted Adequate Search.
Defendant has not submitted reasonably detailed affidavit, setting forth the search
terms and the type search performed, and averring that all files likely contain responsive
materials (if such records exist) were searched. Oglesby U.S. Department Army, 920 F.2d
57, (D.C. Cir. 1990). The affidavit must least include the agency rationale for
searching certain locations and not others. James Madison Project U.S. Department
-4-
Case 1:15-cv-00684-BAH Document Filed 05/23/18 Page
State, 2017 U.S. Dist. LEXIS 12176, (D.D.C. Jan. 30, 2017) (quoting Defenders Wildlife
U.S. Border Patrol, 623 Supp. 83, (D.D.C. 2009)). must also describe what records
were searched, whom, and through what processes. Defenders Wildlife, 623 Supp. 91. addition, affidavit containing nothing more than [c]onclusory assertions about the
agency thoroughness not sufficient. James Madison Project, 2017 U.S. Dist. LEXIS
12176 *6.
Defendant supporting declaration completely silent about how many emails
received from the FBI, whether the FBI provided Defendant all the hundreds thousands emails found Weiner laptop, how many emails Defendant reviewed, how Defendant
reviewed the emails, how many emails Defendant determined personal not agency
records, and how Defendant made such determinations. Each these questions must
answered for Defendant satisfy its burden under FOIA. least five occasions, ex-Director Comey has informed the public that the FBI
located hundreds thousands Clinton-related emails Weiners laptop. However,
not know how many those emails the FBI provided Defendant. Nor know the FBI
provided all Clinton-related emails Defendant. All know that the FBI provided the
referenced emails Defendant and that Defendant determined that 3,000 the emails
provided the FBI contained evidence Department activities. See Declaration Eric Stein and
The fact Defendant determined that only 3,000 emails contained evidence
Department activities also raises additional questions. Specifically, how many emails did
Defendant review arrive that number, how did Defendant review the emails, how many
-5-
Case 1:15-cv-00684-BAH Document Filed 05/23/18 Page
emails did Defendant determine personal not agency records, and how did Defendant
make such determinations? Again, all know that the FBI provided unspecified number emails Defendant, that Defendant reviewed the emails, and that Defendant identified 3,000
emails that contained evidence Department activities. Defendant has not even attempted
explain the discrepancy between the hundreds thousands emails identified ex-Director
Comey and the mere 3,000 emails identified Defendant. this late point the Secretary
Clinton email saga, Defendant should not get the benefit the doubt. Because Defendant failed provide any additional information, has failed satisfy its burden. James Madison Project,
2017 U.S. Dist. LEXIS 12176 (The agency must describe what records were searched,
whom, and through what processes.
Conclusion.
For the reasons stated above, Plaintiff respectfully requests Defendant Motion for
Summary Judgment denied and Plaintiff Cross-Motion for Summary Judgment granted.
Dated: May 23, 2018
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
-6-
Case 1:15-cv-00684-BAH Document Filed 05/23/18 Page THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
JUDICIAL WATCH, INC.,
Plaintiff,
U.S. DEPARTMENT STATE,
Defendant.
Civil Action No. 15-cv-684 (BAH)
PLAINTIFF RESPONSE DEFENDANT STATEMENT MATERIAL FACTS WHICH THERE GENUINE ISSUE
AND PLAINTIFF STATEMENT UNDISPUTED MATERIAL FACTS
SUPPORT ITS CROSS-MOTION FOR SUMMARY JUDGMENT
Plaintiff Judicial Watch, Inc., counsel and pursuant Local Civil Rule 7.1(h),
respectfully submits this response Defendant Statement Material Facts Which There Genuine Issue and Plaintiff Statement Undisputed Material Facts Support its
Cross-Motion for Summary Judgment:
Plaintiff Response Defendant Statement Material Facts Which
There Genuine Issue.
Undisputed.
Undisputed.
Undisputed.
Undisputed.
Undisputed.
Undisputed.
Undisputed.
Undisputed.
Case 1:15-cv-00684-BAH Document Filed 05/23/18 Page
II.
Undisputed.
Plaintiff Statement Undisputed Material Facts Support its Cross-Motion
for Summary Judgment.
The Federal Bureau Investigation located hundreds thousands Hillary
Clinton emails Anthony Weiners laptop. See Transcript, James Comeys interview with
ABC News chief anchor George Stephanopoulos, ABC NEWS (Apr. 15, 2018, available
https://abcnews.go.com/Site/transcript-james-comeys-interview-abc-news-chiefanchor/story?id=54488723); Transcript, Conversation with Former FBI Director James
Comey, THE WASHINGTON POST (May 2018, available https://www.washingtonpost.com/
blogs/post-live/wp/2018/05/08/transcript-a-conversation-with-former-fbi-director-james-comey);
Transcript, James Comey Fresh Air The FBI Isn Anybodys Side, NPR (Apr. 17,
2018, https://www.npr.org/templates/transcript/transcript.php?storyId=602849276); James
Comey, Higher Loyalty 192-193 (2018).
The FBI located thousands emails from Hillary Clinton Blackberry domain Anthony Weiner laptop. See Transcript, James Comeys interview with ABC News chief
anchor George Stephanopoulos, ABC NEWS (Apr. 15, 2018, available
https://abcnews.go.com/Site/transcript-james-comeys-interview-abc-news-chiefanchor/story?id=54488723); Transcript, James Comey Fresh Air The FBI Isn
Anybodys Side, NPR (Apr. 17, 2018, https://www.npr.org/templates/transcript/transcript.php?
storyId=602849276); James Comey, Higher Loyalty 192-193 (2018).
-2-
Case 1:15-cv-00684-BAH Document Filed 05/23/18 Page
Dated: May 23, 2018
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
-3-
Case 1:15-cv-00684-BAH Document 31-1 Filed 05/23/18 Page THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
JUDICIAL WATCH, INC.,
Plaintiff,
U.S. DEPARTMENT STATE,
Defendant.
Civil Action No. 15-cv-684 (BAH)
[PROPOSED] ORDER
Upon consideration Plaintiff Opposition Defendant Motion for Summary
Judgment and Plaintiff Cross-Motion for Summary Judgment and the entire record herein,
hereby ORDERED that:
Defendant Motion for Summary Judgment denied; and
Plaintiff Cross-Motion for Summary Judgment granted. ORDERED.
DATE:________________
_______________________________
The Hon. Beryl Howell, U.S.D.J.