Weekly Update: Two Federal Judges Take Action on Emails
JANUARY 23, 2017
It is likely when you receive this email, our nation will have a new president, Donald Trump. Judicial Watch wishes the new president all the best and hope he brings with him a respect for the rule of law and the U.S. Constitution – a respect sorely lacking from the Oval Office’s previous occupant. One of the Obama’s legacy of lawlessness are the pending Judicial Watch Freedom of Information Act lawsuits against various executive agencies. Yesterday, all of these lawsuits, well over 60, were against the Obama administration. Today, they are against agencies of the Trump administration. Ironically, the Trump administration will have to grapple with all of Judicial Watch’s Clinton email-related lawsuits against the State Department and other agencies!
President Trump should commit to a transparency revolution, especially as Hillary Clinton’s war on transparency helped make his presidency possible. The Trump administration and new Congress must focus on restoring the rule of law and accountability after the eight years of a lawless Obama administration. Corruption in government is an overwhelming problem. We expect, but will not rely on, President Trump or other DC politicians to do the right thing. Judicial Watch will continue its independent investigations and lawsuits in order to hold politicians of both political parties accountable to the rule of law.
Let’s hope the Trump administration takes a different approach to transparency, one that respects the law and the people’s right to know. His appointees will have to deal with the transparency issue immediately, especially as the courts took actions this week to make sure that the Obama administration wouldn’t destroy some public documents on its way out the door.
This week U.S. District Court Judge Emmet G. Sullivan granted our Motion to Preserve emails of a U.S. Department of Justice assistant attorney general. Judge Sullivan issued a Minute Order on January 17, 2017, requiring the Justice Department to “preserve all agency records and potential agency records between the dates of December 1, 2014 and November 7, 2016 in any personal email account of Assistant Attorney General for Legislative Affairs Peter Kadzik.”
The court order came in response to the Freedom of Information Act (FOIA) lawsuit we filed against the U.S. Department of Justice on January 15, 2017, seeking access, in part, to email correspondence between Peter Kadzik, the Assistant Attorney General for Legislative Affairs, and John Podesta, then-chairman of Hillary Clinton’s presidential campaign, regarding the Justice Department’s review of former Secretary of State Hillary Clinton’s emails (Judicial Watch v. U.S. Department of Justice (No. 1:17-cv-00029)).
According to Wikileaks, on May 19, 2015, Kadzik sent Podesta an email appearing to tip off Clintons’ campaign about the Justice Department’s review of Clinton’s emails:
There is a HJC oversight hearing today where the head of our Civil Division will testify. Likely to get questions on State Department emails. Another filing in the FOIA case went in last night or will go in this am that indicates it will be awhile (2016) before the State Department posts the emails.
On November 7, 2016, Judicial Watch submitted a FOIA request to the Justice Department seeking:
- All email correspondence between Peter Kadzik on either his official Justice Department email account or firstname.lastname@example.org and any non-government employee regarding former Secretary of State Hillary Clinton’s use of non-state.gov email to conduct official government business;
- All email correspondence between Peter Kadzik on either his official Justice Department email account or email@example.com and John Podesta; and
- All email correspondence between Peter Kadzik on his official Justice Department email account or firstname.lastname@example.org and any official, officer or employee of Hillary Rodham Clinton’s presidential campaign.
- The timeframe for this request is December 1, 2014 to November 7, 2016.
Also on November 7, we submitted another FOIA request to the Justice Department seeking:
- All emails sent to or received by Peter Kadzik using the email address email@example.com
in which he conducted official government business; and
- All emails copied and/or forwarded … to Peter Kadzik’s Justice Department email account from firstname.lastname@example.org.
- The timeframe for this request is January 1, 2016 to the present.
After the Justice Department failed to respond to its FOIA requests, we filed a FOIA lawsuit on January 5, 2017, and, the next day filed a Motion for Preservation Order for the court to order the Justice Department to preserve the agency records “currently residing” in Kadzik’s Gmail account:
The records at issue are in the physical possession of Assistant Attorney General Kadzik. With the upcoming change in administrations on January 20, 2017, it is likely that he will leave government service on or around that date.
[Judicial Watch] is concerned that after Assistant Attorney General Kadzik leaves government employment, Defendant will no longer have control over the actions of this official.
In the Justice Department’s January 17, 2017 Opposition to Judicial Watch’s Motion for Preservation Order, the Department contended that:
It is the government’s understanding that Mr. Kadzik has located no agency records or potential agency records in his Gmail account and that, therefore, there are no such documents to preserve … Because the government has already taken the action that Judicial Watch’s motion requests, and has informed the Court of that action, Judicial Watch’s motion is moot and should be denied.
The court was not persuaded, did not find Judicial Watch’s motion moot, and issued the Preservation Order the same day.
It is astonishing that the Obama Justice Department played games with its emails, especially Clinton-related emails. We hope this and our other lawsuits — and the court’s hard-hitting court order – sent a signal to the entire Obama administration not to destroy government records to spite the American people’s right to know. It will now be up to the Trump administration to either finally vindicate the rule of law or continue its obstruction.
Yet another federal judge ordered the Obama administration to preserve emails in yet another Obama email scandal – this one at the Department of Homeland Security (DHS).
U.S. District Court Judge Randolph D. Moss this week ordered Department of Homeland Security Jeh Johnson and three other top DHS officials to preserve “all emails regarding, concerning, or related to official United States Government business” they sent through non-“gov” emails from December 23, 2013, and December 29, 2015.”
The court order came in our Freedom of Information (FOIA) lawsuit seeking agency records in the personal email accounts used by the four top Homeland Security officials (Judicial Watch v U.S. Department of Homeland Security (No. 1:16-cv-00967)(D.D.C.)).
Ruling “out of an abundance of caution,” Judge Moss ordered the preservation of records “to minimize the risk of any inadvertent loss of potentially responsive emails.” The court ruling covers Johnson, Deputy Secretary Alejandro Mayorkas, Chief of Staff Christian Marrone, and General Counsel Stevan Bunnell:
ORDERED that Secretary Johnson preserve all emails sent or received between December 23, 2013, and December 29, 2015, that are stored in any of his private email accounts that may contain responsive records, including any emails in archived or deleted folders, on a portable thumb drive or hard drive to be kept in his possession until this Court determines that the emails must be provided to the Department for processing or that they may be deleted;
FURTHER ORDERED that Deputy Secretary Mayorkas, former Chief of Staff Marrone, and former General Counsel Bunnell do the same with respect to their own private email accounts that may contain responsive records…
On December 22, 2016, Judicial Watch filed a Motion for Preservation Order in which it asked the court to issue a “preservation order” for the non-.gov emails of Johnson, Mayorkas and Bunnell because their departure from government service was anticipated upon the installation of the new administration, at which point, Homeland Security would no longer have any control over the former officials:
With the upcoming change in administrations on January 20, 2017, it is likely that the three officials currently in office (Secretary Jeh Johnson, Deputy Secretary Alejandro Mayorkas, and General Counsel Stevan Bunnell) will leave government service.
Counsel for DHS has informed [Judicial Watch’s] counsel that DHS has “asked” these officials to preserve the agency records in their possession. DHS’ counsel declined to provide any evidence supporting this assertion. Because [Judicial Watch] does not know specifically what DHS asked its employees to do and what, if any, other steps DHS has taken to ensure preservation, Plaintiff is concerned DHS’s mere requests to its employees are insufficient. This will be particularly concerning once the officials possessing the emails leave government employment, as the agency will have no control over the actions of these officials…
A court order requiring preservation of these emails is particularly necessary now as DHS has suggested that these officials may have been acting without authorization by sending emails from these accounts…. As such, there is no assurance that these officials will abide by a “request” by the agency to preserve these emails, particularly after their employment ends…
At a hearing on January 5, Obama Justice Department lawyers confirmed that they had done nothing to retrieve government records from Jeh Johnson or the other officials’ accounts. On January 10, Judge Moss ordered DHS to produce any “preservation requests” for emails sent to Johnson, Mayorkas, Marrone, and Bunnell. In today’s court ruling, Judge Moss specifically ordered the DHS officials to preserve all of the contested emails.
We have every reason to believe that there are government records on Jeh Johnson’s and other top DHS officials’ personal email accounts. The fact that the Obama administration has stonewalled their production is yet another example of the lack of transparency that has permeated this administration. Once again, it took persistent legal action from Judicial Watch to preserve the public’s right to know.
In June, Judicial Watch in a related case obtained 693 pages of Homeland Security records revealing that Secretary Jeh Johnson and 28 other agency officials used government computers to access personal web-based email accounts despite an agency-wide ban due to heightened security concerns. The documents also reveal that Homeland Security officials misled Rep. Scott Perry (R-PA) when Perry specifically asked whether personal accounts were being used for official government business.
The waivers were granted to Johnson and other senior staffers after Homeland Security’s Sensitive Systems Policy Directive 4300A was promulgated on April 30, 2014. The Directive was issued after hackers breached the Office of Personnel Management computer system. Directive 4300A states, “The use of Internet Webmail (Gmail, Yahoo, AOL) or other personal email accounts is not authorized over DHS furnished equipment or network connections.” These national security concerns were thrown out the window so top DHS officials evade the transparency laws. Let’s hope the Trump administration has the political will to hold these Obama officials to account to the law and the American public by disclosing any government records from their “private” email accounts.
The Clinton email and Benghazi scandals aren’t over. Not by a long shot.
Just last week, JW’s attorneys asked a federal court for additional discovery. In addition to document requests, the new Revised Discovery Proposal asks for depositions from Clinton, Clinton aide Cheryl Mills and eight other State Department officials to explore “evidence of wrongdoing or bad faith with respect to State Department’s response” to our Freedom of Information Act (FOIA) request as well as some earlier FOIA requests.
The January 10 filing is the latest move in our July 2014 FOIA lawsuit seeking records related to the drafting and use of the Benghazi talking points (Judicial Watch v. U.S. Department of State (No. 1:14-cv-01242)). This lawsuit forced the Clinton email issue into the public eye in early 2015.
In March 2016, U.S. District Court Judge Royce Lamberth granted “limited discovery ” to Judicial Watch, ruling that “where there is evidence of government wrong-doing and bad faith, as here, limited discovery is appropriate, even though it is exceedingly rare in FOIA cases.” In May 2016, we filed an initial Proposed Order for Discovery seeking written and oral information. (In December Judge Lamberth requested both parties to file new proposed orders in light of information discovered in various venues since last May.)
You won’t be surprised to learn that the thoroughly corrupt Obama State Department opposed our proposal.
In last week’s filing, we informed the court that despite repeated conferences with the State Department, they had been “unable to reach agreement on a discovery proposal” and that “Defendant [State Department] is unwilling to agree to any discovery at all in this action.” Judicial Watch’s new discovery proposal focuses on “two main areas:”
These areas are: (i) evidence of wrongdoing or bad faith with respect to State Department’s response to Plaintiff’s FOIA request for records related to the talking points provided to U.S. Ambassador Susan Rice following the September 11, 2012 Benghazi attack and (ii) potential remedies that may ensure a sufficient search for responsive records is undertaken…
Our Revised Discovery Proposal seeks both documents and depositions. The documents requested include:
- All documents that concern or relate to the processing of any and all searches of the Office of the Secretary for emails relating to the September 11, 2012 Benghazi attack and its aftermath…
- All communications that concern or relate to the processing of all searches referenced in Document Request No. 1 above, including directions or guidance about how and where to conduct the searches…
- All records that concern or relate to the State Department’s policies, practices, procedures and/or actions (or lack thereof) to secure, inventory, and/or account for all records…
- Plaintiff requests copies of the attached records [previously obtained by Judicial Watch] with the Exemption 5 redactions removed…
In addition to basic documents, we think testimony is essential, including a deposition of Hillary Clinton to learn:
[the] identification of individuals (whether State Department officials, other government officials, or third-parties, including but not limited to Sidney Blumenthal) with whom Secretary Clinton may have communicated by email.
We are asking to depose former Clinton aides, including Cheryl Mills, chief of staff; Jacob Sullivan, Deputy Chief of Staff and Director of Policy Planning; Heather Samuelson, head of the White House Liaison Office; Lauren Jiloty, Special Assistant; and Monica Hanley, confidential assistant. Also on the list is Clarence Finney, currently Deputy Director of the State Department’s Executive Secretariat Staff; Sheryl L. Walter, who was Director of the Office of Information Program and Services; and Gene Smilansky, a department lawyer.
In one of their last gasps of obstruction of justice, Obama State Department continues to oppose court-ordered efforts to gather the facts from Secretary Hillary Clinton and her top aides about how their email practices violated the American’s people right to know what really happened in Benghazi.
The Trump administration must now decide whether to reverse course on this desperate, last minute obstruction.