One of the key disputes in the Freedom of Information Act (FOIA) lawsuit commenced by Judicial Watch seeking records as to Huma Abedin’s outside employment is whether emails sent and received by Hillary Clinton through her personal email account on her personal server are “federal records” covered by FOIA.

The Court, however, has not ruled on the issue of which of Hillary’s emails were covered by FOIA.

The issue is particularly pressing because the personal email account was the only account used by Hillary. “Federal records” and truly personal emails (e.g., Hillary’s yoga lessons) were intermingled in a single email account in a private server outside of government monitoring (at least outside the U.S. government’s monitoring, whether foreign governments hacked the account or server has not yet been determined.

Hillary’s shadow electronic government deprived the State Department of its own ability to determine what needs to be produced under FOIA.  That takes this case outside the normal course.

Hillary or her attorneys admit that not all emails were produced, and that over 30,000 Hillary determined were personal were deleted and the server wiped clean.

In so doing, Hillary has deprived Judicial Watch and the public of the ability — through keyword searches, for example — to test whether the “personal” emails were only about Yoga and Chelsea’s wedding.

In these grays areas the court adjudicates whether something is a “federal record” or not, often through an in camera review, where the court alone views the documents, so that Judicial Watch would not get to see the document unless the Court ruled it had to be produced.

Hillary, however, deleted the evidence because of her unilateral determination of what was personal. The Court cannot rule on something it cannot see or no longer exists.

Hilary’s lawyer David Kendall is unapologetic about this deletion of records. In a court filing on August 25, 2015 (full embed at bottom of post), Judicial Watch disclosed that Kendall announced that Hillary didn’t consider herself obligated to keep any record that she considered to be personal.

Judicial Watch wrote in its court filing (full embed at bottom of post):

3. Based on a separate letter from Mr. Kendall to Defendant [the State Department], it appears as though Mrs. Clinton believes that she does not have an obligation to return all emails that exist on devices containing official government records. Nor does Mrs. Clinton believe that she has an obligation to preserve such emails. See Exhibit C (“Under the FRA and implementing regulations, she had no obligation to include in that set her personal e-mails, or to retain such personal e-mails.”).

4. To Plaintiff’s knowledge, Defendant has not taken any steps to prevent Mrs. Clinton from destroying records potentially responsive to Plaintiff’s FOIA request that are not already in Defendant’s possession. Defendant only has requested that Mrs. Clinton “not delete any federal documents.” See Exhibit A to Defendant’s August 12, 2015 Status Report. In addition, Mrs. Clinton has stated that she will only “preserve federal record emails in [her] custody.” See Exhibit E to Defendant’s August 12, 2015 Status Report (emphasis added). In other words, Mrs. Clinton believes that she has the authority to destroy records that she has unilaterally determined to be “personal.”1

5. Any destruction of records potentially responsive to Plaintiff’s FOIA request that are not already in Defendant’s possession disregards the Court’s concerns – as expressed during the August 20, 2015 Status Hearing – of which Mr. Kendall is fully aware.

1 Whether Mrs. Clinton as a former employee has the authority to determine whether these records are “personal” or “government records” as well as whether these records are “personal” or “government records” are legal questions not yet resolved by the Court.

Here is the specific sentence from Kendall’s letter (full letter is Exhibit C to the filing):

Judicial Watch FOIA Case Huma Abedin - JW Notice re Records Preservation 8-25-2015 - Kendall Letter excerpt

This is a problem all of Hillary’s making, as the Court noted (transcript, Exhibit A to the filing)(emphasis added):

THE COURT: Right. But assuming, though, in that scenario there wasn’t a violation of government policy either, correct? We’re not talking about a search of anyone’s random e-mail accounts. We’re talking about a search of devices that may have contained official government documents, that’s what we’re talking about. We wouldn’t be here today had the employee followed government policy, right? [transcript at 16]

The Court noted that some of the deleted emails might actually be relevant to Judicial Watch’s FOIA request:

THE COURT: …If any e-mails pertaining to official government business are found in the 30,000, quote, unquote, personal e-mails through the FBI, DOJ search, will those documents be returned to State? I guess that would be the second part of that directive. I think the State Department should ask they be returned.

You know, the thing that makes me feel a little uncomfortable is — and I’m not being critical of the FBI, but the State Department is going to be in the best position to determine whether or not there is information on those devices that are, arguably, responsive to the plaintiff’s FOIA request. You’re going to be in the best position to do that, aren’t you? Right?

MR. WECHSLER [State Dept. Counsel]: Yes. [transcript at 20-21]

Under Hillary’s theory, she could determine that records which objectively are federal records are “personal” without even a need to preserve them.

It’s not clear what the next step will be. But it certainly should be of interest to the court which already has expressed great frustration with Hillary’s email practices and seeming disregard for State Department practices.

Now HHillary’s effectively thumbing her nose at the Court itself.

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Judicial Watch FOIA Case Huma Abedin – JW Notice Re Records Preservation 8-25-2015 by Legal Insurrection

[Note Judicial Watch had represented Legal Insurrection in FOIA matters including as to David Gregory and the Virginia State Bar, and also is an advertiser.]