State Department won't support Hillary Clinton effort to dodge deposition over email server and Benghazi

 | April 06, 2020 07:14 PM

T he State Department declined to join former Secretary of State Hillary Clinton’s effort to convince an appeals court to let her dodge a judge-ordered sworn deposition about her use of a private email server and the 2012 Benghazi terrorist attack.

“The Court agrees with Judicial Watch — it is time to hear directly from Secretary Clinton," U.S. District Court Judge Royce Lamberth ruled in March while also ordering former Clinton chief of staff Cheryl Mills to be deposed by the conservative watchdog.

Clinton's legal team responded last month with an 83-page petition for a writ of mandamus, filed with the U.S. Court of Appeals for the D.C. Circuit, calling the district court ruling outrageous and asking a higher court to order the lower court to correct what Clinton's lawyers saw as a deficient decision.

But the State Department, represented in court by Justice Department lawyers, declined to join Clinton’s legal argument on Friday.

“The government did not seek and thus does not support the extraordinary relief of mandamus due to the unique circumstances of this case,” DOJ appeals lawyer Mark Freeman told the higher court in a seven-page filing. “This is the rare situation in which discovery of a former Cabinet Secretary was not authorized for the impermissible purpose of probing internal government decision-making regarding official policy, but rather to focus on the impact on FOIA compliance of a former official’s unusual decision to use a private email server to systematically conduct large volumes of official business.”

Freeman said “the government’s decision not to seek mandamus here — after each of the discovery orders, not only the most recent — reflects the government’s consideration of the totality of the circumstances in this unique case.”

The legal team for Clinton said in March that reversing the order “is warranted because Judicial Watch’s impending depositions of Secretary Clinton and Ms. Mills are inappropriate, unnecessary, and a clear abuse of discretion.”

Clinton’s lead attorney, David Kendall, claimed, “Judicial Watch could not possibly show the extraordinary circumstances required to depose (or re-depose) former high-ranking officials regarding their reasons for taking official actions, and the court abused its discretion in finding otherwise.”

But Judicial Watch defended its efforts to the appeals court.

“The question … is whether Clinton purposefully routed the entire body of emails she sent and received during her four-year tenure at State, not just one email… [and] whether she did so to circumvent all FOIA requests concerning her emails,” Judicial Watch attorney Ramona Cotca said in a 63-page filing on Friday. “The reasons the District Court gave for its decision to authorize Clinton’s deposition — her state of mind when she decided to set up and use a private server, her awareness of her records management obligations, and her awareness of steps taken to prevent records managers and others from learning about her private server, among others — are directly related to answering these questions.”

Judicial Watch also said “questioning Clinton about whether she used a private server to evade FOIA may help answer whether State’s failure to disclose the Clinton email issue in 2014 or early 2015 harmed the district court’s integrity or abused its process.”

The State Department did seem to push back on that Friday, saying, “Assertions that the government acted in bad faith in litigating this FOIA request are wholly without basis.”

Judicial Watch President Tom Fitton said Monday that “Hillary Clinton’s desperate appeal to avoid testimony is even too much for her defenders at the State and Justice Department."

"The appellate court should quickly reject Mrs. Clinton’s gambit," Fitton added.

The district court ruling in March was the latest twist in a nearly six-year-long case related to Clinton’s reasons for setting up her unauthorized private email server and whether she was attempting to avoid Freedom of Information Act requests.

The FBI investigated Clinton's use of the server, hosted in the basement of her home in Chappaqua, New York, while she was secretary of state from 2009 to 2013. Although former FBI Director James Comey found Clinton was “extremely careless” in handling classified emails, no criminal charges were recommended against anyone following the bureau’s "Midyear Exam" investigation.

“A bank robber who stuffs bills into a duffle bag during a robbery may own the bag, but has no ‘claim of right’ to the stolen cash. Is Clinton claiming a legal right to the agency records stored on the server?” Cotca asked Friday, adding, “While the server may have been Clinton’s property, the agency records on the server plainly were not.”

Judge Lamberth said Clinton’s written answers to questions in the case and related ones “were either incomplete, unhelpful, or cursory at best,” and “her responses left many more questions than answers.”

A State Department review of email practices of dozens of former agency officials and aides to Clinton found 91 “valid violations” attributable to 38 individuals and another 497 violations that couldn't be tied to any specific person. The review found “some instances” of classified information being “inappropriately introduced into an unclassified system.” But investigators uncovered “no persuasive evidence of systematic, deliberate mishandling of classified information.”

Nearly a dozen witnesses have been deposed as part of Judicial Watch’s FOIA lawsuits stemming back to 2014. One main controversy is why 33,000 of her emails were deleted despite a congressional preservation order. The FBI was only able to recover about 5,000 of the scrubbed emails.

Clinton claimed she "never received nor sent any material that was marked classified," but Comey announced in July 2016 that 110 emails did contain classified information.

Judicial Watch also wants to question Clinton and Mills about the talking points for former United Nations Ambassador Susan Rice's appearances on television shows following the terrorist attack on the U.S. Consulate in Benghazi. Members of Ansar al Sharia launched a coordinated assault on Sept. 11, 2012, killing U.S. Ambassador to Libya Christopher Stevens, foreign service officer Sean Smith, and CIA contractors Tyrone Woods and Glen Doherty. Clinton, Rice, and others incorrectly blamed the attack on a YouTube video.