In a ruling sure to keep the Hillary Clinton email scandal alive through the summer, if not longer,  a federal just has granted Judicial Watch the right to take discovery as to whether Hillary’s home server was part of an effort to evade the Freedom of Information (FOIA) law by shifting federal records off-site and into the sole control of Hillary, her attorney’s and consultants.

We have been following Judicial Watch’s federal lawsuit seeking State Department records regarding Huma Abedin’s outside employment. The FOIA request giving rise to the suit also has given rise to much obfuscation by State, which even resulted in the Court ordering Hillary Clinton to provide a declaration under oath as to records.

Given the difficulty of obtaining records, particularly in light of the destruction of at least some records maintained on Hillary’s home server, let Judicial Watch to seek discovery, including depositions of key officials. Such discovery is not routine in FOIA cases, and good cause needs to be shown to obtain discovery.

In a Motion for Discovery (full embed at bottom of post), Judicial Watch laid out the case how Hillary may have conspired to evade FOIA:

For six years, Defendant U.S. Department of State (“State Department” or Department”)
and its former secretary, Hillary Rodham Clinton (“Mrs. Clinton), kept the public in the dark about the creation of an “off-grid” record system, which was used by Mrs. Clinton and at least one of her closest advisors, Huma Abedin, to conduct official government business and communicate with fellow State Department employees and other federal government employees, including those at the White House, as well as foreign leaders and other interested individuals….

Although the public now knows about the “off-grid” system, it does not definitively know how and why the State Department and Mrs. Clinton, even despite receiving numerous FOIA requests, kept the record system secret during Mrs. Clinton’s entire four years as secretary and for the two years subsequent. Based on limited, admissible evidence and other reliable information, there is at least a “reasonable suspicion” that the State Department and its former secretary deliberately thwarted FOIA by creating, using, and concealing the “off-grid” system.

Because the system was “off-grid,” it was not searched in response to Plaintiff’s FOIA request and other FOIA requests received during Mrs. Clinton’s tenure as secretary or the two years that followed. In addition, the State Department appears to have allowed Mrs. Clinton to leave the agency without providing an inventory of the records on the system or ensuring access to all federal records on the system.

Judicial Watch then demonstrated by Hillary’s printing out of some emails was not sufficient:

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, ndividuals 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.

The bottom line, Judicial Watch argued, was that discovery was essential:

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 granted the motion today, via two Minute Orders (meaning orders reflected on the court docket sheet, not separate documents:

Minute Entry for proceedings held before Judge Emmet G. Sullivan: Motion Hearing held on 2/23/2016 re 48 MOTION for Discovery filed by JUDICIAL WATCH, INC. The Court grants 48 Motion for Discovery. ( Plaintiff to Submit Discovery Plan To Court and Counsel by 3/15/2016. Defendant Response due by 4/5/2016. Plaintiff Replies due by 4/12/2016. Order To Be Issued. (Court Reporter SCOTT WALLACE.) (mac) (Entered: 02/23/2016)

MINUTE ORDER directing Judicial Watch to submit a detailed, narrowly tailored, discovery plan no later than March 15, 2016. The State Department shall respond to Plaintiffs discovery proposal no later than April 5, 2016. Judicial Watch shall file its reply no later than April 12, 2016. Judicial Watch and the State Department shall also inform the Court of all pending FOIA cases related to former Secretary Clintons use of where a motion for discovery has been filed. Signed by Judge Emmet G. Sullivan on February 23, 2016. (lcegs4) (Entered: 02/23/2016)

Judicial Watch explained on its website the significance of the victory:

Judge Sullivan’s ruling granting Judicial Watch’s request for discovery is a major victory for the public’s right to know the truth about Hillary Clinton’s email system. The court-ordered discovery will help determine why the State Department and Mrs. Clinton, even despite receiving numerous FOIA requests, kept the record system secret for years. Our proposed discovery, which will require court approval, will include testimony of current and former officials of the State Department. While Mrs. Clinton’s testimony may not be required initially, it may happen that her testimony is necessary for the Court to resolve the legal issues about her unprecedented email practices.

What might we expect in the way of Judicial Watch’s discovery plan? In its motion papers it indicated it would seek depositions of senior State Department officials, Hillary’s lawyer David Kendall, Abedin, non-parties who might have information, and Platte River Networks, which set up and maintained the server.

This is a big deal, and keeps the server issue front and center in the election.


Judicial Watch Hillary Server FOIA Case – Order Granting Motion for Discovery