An Invitation to a Deposition: DC Court Judge Approves Extraordinary Procedure in FOIA Case

Posted: 10:18 am PT
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On May 4, U.S. District Court Judge Emmet G. Sullivan granted Judicial Watch to take testimony of former and current State Department employees in relation to an FOIA lawsuit related to the clintonemail. The Court notes that “discovery is rare in FOIA cases. Thomas v. FDA, 587 F. Supp. 2d 114, 115 (D.D.C. 2008) (Huvelle, J.) (noting that discovery is an extraordinary procedure in a FOIA action”). Discovery should be permitted, however, when a plaintiff raises a sufficient question as to the agency’s good faith in processing documents in response to a FOIA request.”

The Court writes:

[T]he circumstances surrounding approval of Mrs. Clinton’s use of clintonemail.com for official government business, as well as the manner in which it was operated, are issues that need to be explored in discovery to enable the Court to resolve, as a matter of law, the adequacy of the State Department’s search of relevant records in response to Judicial W atch’s FOIA request.
[…]
Having considered Plaintiff’s proposed plan, State’s response, Plaintiff’s reply, and the parties’ jointly proposed order, and recognizing that Defendant has not waived its objection to discovery, it is hereby ordered that:

The scope of permissible discovery shall be as follows: the creation and operation of clintonemail.com for State Department business, as well as the State Department’s approach and practice for processing FOIA requests that potentially implicated former Secretary Clinton’s and Ms. Abedin’s emails and State’s processing of the FOIA request that is the subject of this action. Plaintiff is not entitled to discovery on matters unrelated to whether State conducted an adequate search in response to Plaintiff’s FOIA request, including without limitation: the substantive information sought by Plaintiff in its FOIA request in this case, which involves the employment status of a single employee; the storage, handling, transmission, or protection of classified information, including cybersecurity issues; and any pending FBI or law enforcement investigations.

The court authorized Judicial Watch to seek the testimony of the following witnesses per court filing:

Stephen D. Mull Executive Secretary of the State Department from June 2009 to October 2012 and suggested that Mrs. Clinton be issued a State Department BlackBerry, which would protect her identity and would also be subject to FOIA requests. (Note that Ambassador Mull is a former U.S. Ambassador to Poland and the current Lead Coordinator for Iran Nuclear Implementation at the State Department).

Lewis A. Lukens Executive Director of the Executive Secretariat from 2008 to 2011 and emailed with Patrick Kennedy and Cheryl Mills about setting up a computer for Mrs. Clinton to check her clintonemail.com email account. (Note that Ambassador Lukens is a former U.S. Ambassador to Senegal and Guinea-Bissau and currently Diplomat in Residence responsible for recruitment and outreach for the State Department in Montana, Alaska, Washington, Oregon, and northern California).

Patrick F. Kennedy Under Secretary for Management since 2007 and the Secretary of State’s principal advisor on management issues, including technology and information services. (Note that Ambassador Kennedy is now the longest serving Under Secretary of State for Management in the history of the State Department.  Besides Ronald Ian Spiers who served as “M” from 1983–1989, Kennedy would be the only other  Foreign Service Officer appointed to this position).

430(b)(6) deposition(s) of Defendant regarding the processing of FOIA requests, including Plaintiff’s FOIA request, for emails of Mrs. Clinton and Ms. Abedin both during Mrs. Clinton’s tenure as Secretary of State and after;

Cheryl D. Mills Mrs. Clinton’s Chief of Staff throughout her four years as Secretary of State

Huma Abedin Mrs. Clinton’s Deputy Chief of Staff and a senior advisor to Mrs. Clinton throughout her four years as Secretary of State and also had an email account on clintonemail.com

Bryan Pagliano State Department Schedule C employee who has been reported to have serviced and maintained the server that hosted the “clintonemail.com” system during Mrs. Clinton’s tenure as Secretary of State);

 

The court filing says that Judicial Watch reserves the right to seek the Court’s permission to take the deposition of Donald R. Reid at a later time, and State reserves the right to object. Reid is Senior Coordinator for Security infrastructure, Bureau of Diplomatic Security since 2003 and was involved in early discussions about Mrs. Clinton using her BlackBerry and other devices to conduct official State Department business. (Note that Mr. Reid’s Information Security responsibilities include the management of classified information programs, oversight of the Department’s Special Security Office, the operation of the Industrial Security program, and the investigation/resolution of security violations). 

Judicial Watch is granted 8 weeks to conduct its discovery plus a possible July surprise:  “Based on information learned during discovery, the deposition of Mrs. Clinton may be necessary. If Plaintiff believes Mrs. Clinton’s testimony is required, it will request permission from the Court at the appropriate time.”

Read the court ruling below; use the side scroll or maximize arrow at the lower right handside of the Cloudup box below. You may also read it here.

 

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Clinton Email: Presidential Memo to Establish Global Women’s Issues (S/GWI) Position on a Permanent Basis

Posted: 1:01 am ET
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In 2009, President Obama nominated Melanne Verveer to be the first ever US Ambassador-at-Large for Global Women’s Issues at the Department of State.  Previously, she was Co-Founder, Chair and Co-CEO of Vital Voices Global Partnership, an international nonprofit that invests in emerging women leaders – pioneers of economic, political and social progress in their countries. Prior to founding Vital Voices, Verveer served as Assistant to the President and Chief of Staff to the First Lady in the Clinton Administration and was chief assistant to then First Lady Hillary Clinton in her international activities.

The Secretary’s Office of Global Women’s Issues (S/GWI), is currently headed by Ambassador Catherine M. Russell who was appointed to the position in August 2013. Prior to assuming this position, she served as Deputy Assistant to the President and Chief of Staff to Second Lady Dr. Jill Biden focusing on military families and higher education.

 

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@StateDept Seeks to Limit Discovery in Clinton Email FOIA Court Case, Spox Can’t Say Why

Posted: 2:15 am ET
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Below is the State Department’s court filing via Politico:

On April 6, this obviously made it to the Daily Press Briefing:

QUESTION: — knowing that you’ll probably refer me to the Department of Justice. But – so yesterday or late yesterday there was a filing in the FOIA – the email FOIA – one of them, on the discovery – the order to grant discovery.

MR TONER: Right.

QUESTION: And I’m just curious about this, because I haven’t actually seen the order, I’ve just read the stories about it. What does the department, through its lawyers, claim to be its standing for trying to limit the scope of questions asked of ex-employees?

MR TONER: So —

QUESTION: I mean, I can understand why you would be making a motion on behalf of current employees. And I could probably even understand why you say that this – they are being asked about their activities while they were in government. But this seems to be something – I mean, shouldn’t their own lawyers be making this kind of a motion? Why is the State Department making it?

MR TONER: So I appreciate the question and understand your interest in the story. You are correct insofar as – well, first of all, we did submit a filing with the court last night on this matter. But I cannot comment on the actual content of that court filing, because this is something that’s already – or that is a matter of ongoing litigation, so I can’t even comment on your question because it would speak to this matter that’s still in litigation.

QUESTION: Can you tell me if it says in there – I mean, maybe I’m just completely naive and ignorant —

MR TONER: I don’t have it in front —

QUESTION: — about this.

MR TONER: Yeah.

QUESTION: But does it explain in this motion how it is that the department has standing to make such a request on behalf of a former employee?

MR TONER: Again, I can’t speak specifically to this matter, but I can say that the department’s engaged on any given year in litigation before federal courts, administrative and arbitral tribunals. And depending on the facts —

QUESTION: Right.

MR TONER: — applicable procedures, and nature of the claims, we do – there may be discovery, but it is case by case.

QUESTION: No, I understand that.

MR TONER: And so – yeah.

QUESTION: I mean, the answer to my question could be very, very simple, that it’s – that it – it could be that it’s completely normal —

MR TONER: You’re asking whether it applies to ex-employees?

QUESTION: Well – no, it does. I know that the motion does cover them. I’m just curious as to what the —

MR TONER: What the rationale is?

QUESTION: Right. I mean, it may be very straightforward, that because they’re being asked to talk about stuff they did while they were in government that you do have some kind of standing to speak on their behalf.

MR TONER: And I will see if I can get you any —

QUESTION: And I’m just wondering if —

MR TONER: — more clarity on that.

QUESTION: Right. Thanks.

MR TONER: But I have to just preface that by saying —

QUESTION: Okay.

MR TONER: — I am restricted in what I can say when something – it’s an ongoing litigation.

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How Clinton’s email scandal took root (via WaPo) — if this ever ends, FOIA coming for total email tab

Posted: 12:41 am ET
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This might be the most thorough reporting we’ve seen on the Clinton email saga. Includes all the familiar names we’ve seen so far. But 147 FBI agents deployed to chased down leads?! If this case ever ends sometime soon, somebody should FOIA the total email tab, not just the FBI agents, their overtime to get this done within a desired time frame but also the FOIA staffers, and their OT, labor hours from legal, labor hours from public affairs, all that paper and ink, and all the hair coloring cost for hair that prematurely turned gray the last couple of years… In any case, here’s something to chew:

“From the earliest days, Clinton aides and senior officials focused intently on accommodating the secretary’s desire to use her private email account, documents and interviews show. Throughout, they paid insufficient attention to laws and regulations governing the handling of classified material and the preservation of government records, interviews and documents show. They also neglected repeated warnings about the security of the BlackBerry while Clinton and her closest aides took obvious security risks in using the basement server.”

 

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Email: IG Inspection of Embassy Kabul “Routine” and Always Includes Leadership/Mgt Survey of the Boss

Posted: 2:22 am EDT
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Via foia.state.gov:

Screen Shot 2016-03-22 at 11.25.02 PM

This is an email from 2009.  State/OIG is independent from the State Department so LOL “at the behest of  the IG” to State/PA here?  There was no Senate-confirmed OIG in 2009. Howard J. Krongard who was appointed in 2005 left office in 2008.  PJ Crowley was then the official spokesperson for the State Department and the PA bureau boss. Mark Lander was then NYT’s diplomatic correspondent.

The State/OIG inspection took place in Washington, DC, between September 8 and Octo­ber 9, 2009 and in Kabul, Afghanistan between October 15 and November 13, 2009. The official Report Number ISP-I-10-32A (PDF), is dated February 2010.

 

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“Experienced Diplomats and Foreign Service Officers” Thrown Under the Bus – Internal Screaming at 125 dB

Posted: 2:04 am EDT
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A couple months ago, we saw HRC’s campaign talked to CNN about the controversies in the handling of classified material, called it “a gray area” and cited foreign service officers as part of its defense:

And the career foreign service officers that were often the originators of this e-mail, they know the difference between what’s classified and what’s not.   A lot of people, I think, are mistaken to suggest that Hillary Clinton originated many of these e-mails. In fact, they are chains that are ultimately forwarded to her after being bandied back and forth by career foreign service officers in the State Department. And these are people, like I said, that know the difference between what’s classified and what’s not.  So by the logic of what today’s announcement suggests, then there would be dozens of officials in the State Department that were completely negligent. Does anyone really think that’s what’s going on here? I don’t. 

On March 5, the AP posted Things we learned from 50000-plus pages of Clinton emails.  The Washington Post also has a report on its analysis of the classified content in over 50,000 publicly released Clinton emails  based on what the State Department has said contained classified information.  Excerpt from the WaPo piece:

“If experienced diplomats and foreign service officers are doing it, the issue is more how the State Department deals with information in the modern world more than something specific about what Hillary Clinton did,” said Philip H. Gordon, who was assistant secretary of state for European and Eurasian affairs and was the author of 45 of the sensitive emails from his non-classified government account.
[…]
They said they never stripped classified markings from documents to send them through regular email, as Republicans have alleged occurred in Clinton’s correspondence.

Instead, they said, the emails largely reflect real-time information shared with them by foreign government officials using their own insecure email accounts or open phone lines, or in public places such as hotel lobbies where it could have been overheard.

In other emails, they said they purposely wrote in generalities. Numerous emails were labeled “Sensitive But Unclassified,” indicating those writing did not think the note was classified.

Former ambassador Dennis Ross, who has held key diplomatic posts in administrations of both parties, said that one of his exchanges now marked “secret” contained information that government officials last year allowed him to publish in a book.

The emails relate to a back-channel negotiation he opened between Israelis and Palestinians after he left the government in 2011.

“What I was doing was communicating a gist — not being very specific, but a gist. If I felt the need to be more specific, we could arrange a meeting,” Ross said.

Princeton Lyman, a State Department veteran who served under presidents of both parties and was a special envoy to Sudan when Clinton was secretary of state, said he has been surprised and a bit embarrassed to learn that emails he wrote have been classified. He said he had learned through decades of experience how to identify and transmit classified information.

“The day-to-day kind of reporting I did about what happened in negotiations did not include information I considered classified,” he said.

One former senior official who authored some of the now-classified emails referred to a “cringe factor” for officials reviewing their own emails with the benefit of time that was often not available in the middle of unfolding world crises.

The former official, speaking on the condition of anonymity, expressed disagreement with the State Department’s decision to classify the emails. Still, the official said diplomats at the time believed they were sending the material through a “closed system” in which the emails would be reviewed only by other State Department officials. They are becoming public now, the official noted, only because of Clinton’s email habits and her presidential run.

“I resent the fact that we’re in this situation — and we’re in this situation because of Hillary Clinton’s decision to use a private server,” the official said.

 

We completely understand if folks are screaming internally (or not) up to the pain threshold of 125 decibel.

 

 

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Email of the Day: Wow! What’s With These @StateDept “Make Them Whole” Awards?

Posted: 1:50 am EDT
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Via foia.state.gov released through the Leopold v. State Department FOIA litigation. These “make them whole” awards are given because the “sucessesors (sic) got the award and they didn’t.” Wait, what? Does this mean the employees got these awards because the folks who followed them on these jobs got the awards but they didn’t? Help us, we don’t understand this award type. Is this like those competition where everyone gets a trophy?

 

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DOJ Grants Immunity to Bryan Pagliano, Ex @StateDept Staffer and HRC’s Former Server Guy

Posted: 2:16 am EDT
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Email of the Day: More … Gatekeeper Crap — “Mills has shaped a State Department-as-Hillaryland”

Posted: 3:10 am EDT
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Via foia.state.gov from Leopold v. State Department FOIA litigation:

Apparently there was some grumbling about the accessibility of the secretary of state to the career diplomats several months into HRC’s tenure. Al Kamen reported it, and later Ben Smith picked up the tidbit for Politico (this was in 2009 before he went to BuzzFeed):

 

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Court Grants Request to Interview Clinton Aides and @StateDept Officials Under Oath Over Email Saga

Posted: 3:57 am EDT
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On February 23, Judge Emmet Sullivan of the District Court of the District of Columbia granted Judicial Watch’s (JW) motion for discovery. The case is Judicial Watch vs. U.S. Department of State (Civil Action No. 13-cv-1363 (EGS)). Court records say that JW will need to submit a Discovery Plan To Court and Counsel by 3/15/2016. The State Department’s response is due by 4/5/2016 and JW’s reply is due by 4/15/2016.

Below is an excerpt from JW’s Motion for Discovery:

While Mrs. Clinton ultimately returned approximately 55,000 pages of federal records from this “off-grid” system to the State Department, the process for identifying the federal records on the system was undertaken by Mrs. Clinton’s private attorneys, individuals only accountable to the former secretary, not employees accountable to the Department. In addition, there is no evidence that the process complied with appropriate federal records laws, rules, and regulations. The net result is that the integrity of the State Department’s FOIA process has been completely and thoroughly undermined to the substantial detriment of FOIA requesters like Plaintiff who submitted requests to the Department implicating Mrs. Clinton’s official email. In addition to ensuring that the State Department has satisfied its FOIA obligations with respect to the request at issue in this case, a compelling need exists to restore the integrity of the FOIA process at the State Department and ensure accountability for the FOIA violations that occurred. Before this can be accomplished, however, Plaintiff requires discovery to uncover and present admissible evidence to the Court about whether the State Department and Mrs. Clinton deliberately thwarted FOIA. Plaintiff also requires discovery of the system itself to determine possible methods for recovering whatever responsive records may still exist. The Court therefore should grant Plaintiff time to conduct discovery and obtain admissible evidence.
[…]

Plaintiff submits that discovery of the following facts about the use of the “clintonemail.com” system are necessary for the Court to determine whether the State Department and Mrs. Clinton deliberately thwarted FOIA:

• Who at the State Department besides Mrs. Clinton and Ms. Abedin used an email address on the “clintonemail.com” system to conduct official government business;

• Who at the State Department knew that Mrs. Clinton and Ms. Abedin were using “clintonemail.com” email addresses to conduct official government business;

• Were any State Department monies, resources, or personnel used to create the “clintonemail.com” system;

• Was Mrs. Clinton assigned a “state.gov” email address and, if not, why was she not assigned one;

• Why did the State Department not provide Mrs. Clinton with any personal computing devices to conduct official government business;

• Was Mrs. Clinton advised at any point to use a “state.gov” email address to conduct official government business instead of a “clintonemail.com” email address;

• Was Ms. Abedin advised to use her “state.gov” email address exclusively to conduct official government business;

• Under what circumstances did Ms. Abedin use the “clintonemail.com” system to conduct official government business;

• From January 21, 2009 to the day that the New York Times reported that Mrs. Clinton used the “off-grid” system, how did the State Department handle FOIA and other legal requests that implicated Mrs. Clinton’s email;

• From January 21, 2009 to the day that the New York Times reported that Mrs. Clinton used the “off-grid” system, did anyone at the State Department consider publicly disclosing the use of the “clintonemail.com” system to conduct official government business;

• Who at the State Department assisted Mrs. Clinton and Ms. Abedin in using the “clintonemail.com” system or enabled them to use it to conduct official government business;

• Did the State Department deliberately conceal the existence of the “clintonemail.com” system from the public, and, if so, who at the State Department assisted with ensuring that the public would not find out about the use of the system to conduct official government business;

• Were State Department employees instructed not to inform the public or the National Archives and Records Administration about the use of the “clintonemail.com” system; and

• At any time between January 21, 2009 and the day that the New York Times reported that Mrs. Clinton used the “off-grid” system was any State Department employee disciplined or reprimanded for questioning the use of the “clintonemail.com” system to conduct official government business.

The discovery motion says JW will need “to depose State Department officials or employees who had oversight and management responsibilities relating to information systems at the department, as well as officials or employee who were involved in planning and assisting with Mrs. Clinton’s transition and arrival at the State Department.”

The names cited in the court filing includes the Under Secretary for Management Patrick F. Kennedy, the Director of IPS John F. Hackett and the Executive Secretary Joseph E. Macmanus.

Just so you know it doesn’t stop there, the filing also includes this:

To the extent relevant personnel have left the State Department’s employment, Plaintiff may have to serve third party deposition and/or document subpoenas on such persons after they have been identified. It also may include third party depositions and/or document requests to private persons or entities who may have advised or assisted Mrs. Clinton on the establishment of the system, including persons registered the domain name and obtained, set up, and coordinated the equipment, software, data files, etc. needed for the system. It may also include the submission of interrogatories and document requests to the State Department.

On October 3, 1984, Judge Sullivan was appointed by President Ronald Reagan to serve as an Associate Judge of the Superior Court of the District of Columbia. On November 25, 1991, Judge Sullivan was appointed by President George H. W. Bush to serve as an Associate Judge of the District of Columbia Court of Appeals. On June 16, 1994, Judge Sullivan was appointed by President William J. Clinton to serve as United States District Judge for the District of Columbia. Here’s the troubled judge:

Professor Jonathan Turley writes that “any depositions might result in refusals to testify by key officials. The invocation of Fifth Amendment protections against self-incrimination would have significant political impacts. After all, no one would suggest that Sullivan is part of a right-wing conspiracy or runaway investigation. The refusal to testify would reflect the real danger of tripping the wire on federal classification laws as well as more general concerns that statements conflicting statements with those government investigators could trigger charges under 18 U.S.C. 1001.” Read more below:

Read the entire motion here:

 

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