Photo: John Minchillo, Associated Press

By: Spencer S Hsu, Washington Post, 2/23/15

A federal judge on Tuesday will weigh calls raised in a civil lawsuit to probe deeper into Hillary Clinton’s use of a private email system as secretary of state, posing new legal and political risks for Clinton and her inner circle.

U.S. District Judge Emmet G. Sullivan of Washington will hear arguments over whether State Department officials and top Clinton aides should be questioned under oath about whether they intentionally thwarted federal open records laws by using or allowing the use of the private server throughout Clinton’s tenure at State from 2009 to 2013.

The 10 a.m. hearing comes as Clinton seeks the Democratic presidential nomination and three weeks after the State Department acknowledged for the first time that “top secret” information passed through the server.

The FBI and the department’s inspector general are continuing investigations into whether the private setup mishandled classified information or violated other federal laws.

Tuesday’s hearing is part of a long-running lawsuit brought by Judicial Watch, a conservative legal watchdog group, which alleges that months of piecemeal revelations about Clinton and the State Department’s handling of the email controversy create “at least a ‘reasonable suspicion’ ” that public access to official government records under the federal Freedom of Information Act was undermined.

The lawsuit stems from a May 2013 Judicial Watch request, under FOIA, for records about the employment arrangement of a longtime Clinton aide, Huma Abedin.

For six months in 2012, Abedin was employed simultaneously by the State Department, the Clinton Foundation, Clinton’s personal office and a private consulting firm tied to the Clintons.

The department stated in February 2014 that it had completed its search of records for the secretary’s office. After Clinton’s exclusive use of a private server was made public in May, the department said that additional records probably were available.

In pursuing information about Abedin’s role, Judicial Watch argues the only way to determine whether all official records subject to its request have been made public is to allow it to depose or submit detailed written questions about the private email arrangement to a slew of current and former top State Department officials, Clinton aides, her attorneys and outside parties.

The group does not ask to depose Clinton by name, but its requests home in on those who oversaw her transition, arrival and departure from the department and on oversight of Abedin, a direct subordinate.

“We know discovery in FOIA cases is not typical, and we do not ask for it lightly,” Judicial Watch President Thomas J. Fitton said in an interview, adding, “If it’s not appropriate under these circumstances, it’s difficult to imagine when it would be appropriate.”

Fitton noted that the State Department’s inspector general last month faulted the department and Clinton’s office for overseeing processes that repeatedly allowed “inaccurate and incomplete” FOIA responses, including a May 2013 reply that found “no records” concerning email accounts that Clinton used, even though dozens of senior officials had corresponded with her private account.

“For six years, [the department and Clinton] kept the public in the dark about the creation of an ‘off-grid’ record system” overseen by “individuals only accountable to the former secretary,” Judicial Watch counsel Michael Bekesha added in court filings. “The net result is that the integrity of the State Department’s FOIA process has been completely and thoroughly undermined.”

Justice Department lawyers countered in their filings that the State Department is already poised to finish publicly releasing all 54,000 pages of emails that Clinton’s attorneys determined to be work-related and that were returned to the State Department at its request for review.

The case before Sullivan, a veteran jurist who has overseen other politically contentious FOIA cases, is one of more than 50 active FOIA lawsuits by legal groups, news media and others for information included in emails sent to or from Clinton and her aides on the private server.

The State Department has been releasing Clinton’s newly recovered correspondence in batches since last summer with a final batch due Monday.

Meanwhile, former Clinton department aides Cheryl D. Mills, Abedin, Jacob Sullivan and Philippe Reines have returned tens of thousands of pages of documents to the department for FOIA review, with releases projected to continue into at least 2017.

The State Department also has asked the FBI to turn over any of an estimated 30,000 deleted emails deemed personal by Clinton’s attorneys that the FBI is able to recover in its investigation into the security of the private email server.

“There can be no doubt that its [the State Department’s] search for responsive records has been exceedingly thorough and more than adequate under FOIA,” according to filings by Justice Department civil division attorneys, led by Principal Deputy Assistant Attorney General Benjamin C. Mizer.

They argued that FOIA requires the agency to release records only under its control — not under the control of its current or former officials — and that “federal employees routinely manage their email and ‘self-select’ their work-related messages when they, quite permissibly, designate and delete personal emails from their government email accounts.”

If Sullivan grants the request for discovery, it will almost certainly extend through Election Day an inquiry that has dogged Clinton’s campaign, frustrating allies and providing fodder to Republican opponents.

FOIA law generally gives agencies the benefit of the doubt and sets a high bar for plaintiffs’ requests for discovery. One similar public records battle during Bill Clinton’s presidency lasted 14 years and led to depositions of the president’s White House counsel and chief of staff.

Because of the number of judges hearing the FOIA cases, odds are greater that fights over Hillary Clinton’s emails could “take on a life of their own,” not ending “until there are endless depositions of top [agency] aides and officials, and just a parade of horribles,” said Anne L. Weismann, executive director of the Campaign for Accountability. Weismann also is a former Justice Department FOIA litigation supervisor who oversaw dozens of such fights from 1991 to 2002.

Still, she said, such drawn-out legal proceedings could be valuable if they shed light on whether the State Department met its legal obligations under open-government laws or systematically withheld releasable records.

Last month, one of Sullivan’s colleagues, U.S. District Judge James Boasberg, dismissed lawsuits brought by Judicial Watch and Cause of Action Institute that sought to force the government to take more-aggressive steps to recover Clinton’s deleted emails under the Federal Records Act.

Plaintiffs “cannot sue to force the recovery of records that they hope or imagine might exist,” Boasberg wrote Jan. 11, adding that, to date, recovery efforts by the State Department and the National Archives under that law “cannot in any way be described as a dereliction of duty.”

The server’s existence was disclosed two years after Clinton left, February 2013, as secretary of state and as the department faced a congressional subpoena and media requests for emails related to scores of matters, including attacks that killed a U.S. ambassador in Benghazi, Libya, and fundraising for the Clinton family’s global charity.

In seeking records related to Abedin’s employment, Judicial Watch asked to be allowed to depose or submit written questions to current and former State Department employees and Clinton aides including Undersecretary for Management Patrick F. Kennedy; John F. Hackett, director of information services; Executive Secretary Joseph E. Macmanus; Clinton’s chief of staff, Mills; lawyer David E. Kendall; Abedin; and Bryan Pagliano, a Clinton staff member during her 2008 presidential campaign who helped set up the private server.

More broadly, the group’s motion targets who oversaw State Department information systems, Clinton’s transition and arrival at the department, her communications, and her and Abedin’s departure from the agency.

“What emails . . . were deleted . . . who decided to delete them, and when?” Judicial Watch asks in filings.

The group also asks whether any archived copies of sent or received emails on the domain clintonemails.com existed, including correspondence with Clinton technology contractors Platte River Networks and Datto.