“not currently working with DOJ, the FBI, or other government agencies to search former Secretary Clinton’s private email server…”
We noted in a post yesterday that the federal court, in the Judicial Watch FOIA case involving records relating to Huma Abedin’s outside employment. had ordered to Department of State to make a supplemental filing today as to efforts to search the server turned over by Hillary to the Department of Justice.
The State Department just filed an August 14, 2015 Status Report (full embed at bottom of post), in which it states that it is not even attempting to search the server.
The reason is that the server is not under State Dept. control, and it does not feel legally obligated to try to search a server in the possession of another agency.
In addition, the State Dept. says that is it relying on Hillary’s declaration under penalty of perjury that all documents which are or potentially are federal records already have been produced by Hillary’s attorneys. This makes Hillary’s sworn declaration all the more central.
As we documented last night, there are gaps in the explanation given by Hillary and her attorney’s as to the server, including searches.
James F. Peterson, a Senior Attorney at Judicial Watch,* provided the following statement:
“The State Department again has ignored a court order to provide any additional details about the missing emails of Secretary Clinton and her staff. Additional court-ordered steps to discover this information plainly are now required.”
(added) Tom Fitton, the President of Judicial Watch, has issued the following statement:
“The State Department filing is woefully deficient, misleading, and contemptuous of the court’s orders for complete disclosure about Mrs. Clinton’s email system. Now we know that the Obama administration and Hillary Clinton have joined hands in this email scandal. The State Department relies on the half-baked, vague declaration by Hillary Clinton and a misleading letter by her lawyer to try to avoid its obligations to produce records under the Freedom of Information Act. It is now clear that Mrs. Clinton is withholding servers and emails from the FBI and Justice Department, and Judge Sullivan is being misled to conclude otherwise. We will seek appropriate relief from the court.”
Here are the relevant excerpts from the State Department’s court filing today:
In a Minute Order entered on August 13, 2015, the Court directed the State Department to indicate in this status report “the extent to which [it] is working with other government agencies, including the Federal Bureau of Investigation and the Department of Justice, to search Mrs. Clinton’s private email server for information relevant to this lawsuit.”
It is the State Department’s understanding that on August 12, 2015 the Department of Justice (DOJ) took custody of former Secretary Clinton’s private email server for storage in a secure manner in connection with the classification of some of the 55,000 pages. See Kendall letter at 1-2, attached as Exhibit E to Def.’s Status Report (ECF No. 24). The Department is not currently working with DOJ, the FBI, or other government agencies to search former Secretary Clinton’s private email server for information responsive to plaintiff’s FOIA request for the following reasons. First, FOIA does not require an agency to search for and produce records that are not in its possession and control. See Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150-51, 155 (1980); National Sec. Archive v. Archivist of the U.S., 909 F.2d 541, 545 (D.C. Cir. 1990). The Department lacks such possession and control over former Secretary Clinton’s server.
Second, FOIA requires an agency to conduct a search “reasonably calculated to uncover all relevant documents.” Morley v. CIA, 508 F.3d 1109, 1114 (D.C. Cir. 2007). As the Court is aware, in December 2014, former Secretary Clinton provided to the State Department 55,000 pages of her emails from her clintonemail.com account that were or potentially were federal records. At the Court’s request, former Secretary Clinton has declared under penalty of perjury that these materials constitute all of her emails on clintonemail.com that were or potentially were federal records. Accordingly, the Department reasonably believes that further searches of the original repository of these materials will not result in additional responsive materials.
In related news, the FBI is commencing an effort to recover data from the server, though that begs the question as to whether there are other devices and locations in which the data was stored after the server was wiped clean in 2013 and stored by a Colorado company at a New Jersey storage location.
Additionally, the stakes are raised because the Colorado company did not have security clearance to possess classified information.