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Federal Court orders State Dept to confer with FBI on searches of Hillary server and thumb drive

Federal Court orders State Dept to confer with FBI on searches of Hillary server and thumb drive

Judge shocked that State Dept has not communicated with FBI and DOJ

A hearing was held this afternoon in federal court in Washington, D.C., before Judge Emmet G. Sullivan, in the FOIA case brought by Judicial Watch seeking records regarding then Secretary of State Hillary Clinton’s aide Huma Adedin’s outside employment.

We have covered the court developments, including allegations by Judicial Watch that the State Department has failed to comply with court orders and has not provided sufficient searches. Yesterday the State Department filed a Reply admitting that Hillary never was issued a State Department Blackberry, and the Blackberries used by Adedin and Cheryl Mills likely were destroyed.

Today’s hearing was over Judicial Watch’s request for “discovery,” which normally doesn’t take place in FOIA cases. Discovery could include sworn depositions of witnesses.

Amy Miller was in Court for Legal Insurrection and reports:

The Judge ordered the State Department to confer with the FBI and DOJ as to searches of the server and thumb drive, including recovery efforts. The Judge wanted to wait until the State Department filed another status report before ruling on discovery issues.

Just after the hearing, the Court updated the docket with the following:

Minute Entry for proceedings held before Judge Emmet G. Sullivan: Status Hearing held on 8/20/2015. Court directs the government to file a status report on or before September 20, 2015 for reasons stated on the record in open Court. Further Status Hearing set for 10/1/2015 at 10:00 AM in Courtroom 24A before Judge Emmet G. Sullivan. Court to issue order accordingly. (Court Reporter Janice Dickman) (tcr) (Entered: 08/20/2015)

Amy will update soon with further details as to today’s court proceedings.

***

Amy’s Updates

First up, the official docket text from today’s directive, as filed with the court:

MINUTE ORDER. For the reasons stated by the Court at the August 20, 2015 status hearing, and as agreed to by Defendant’s counsel, the State Department is hereby ordered to request that the Federal Bureau of Investigation (FBI) inform it about any information recovered from Mrs. Clinton’s server and the related thumb drive that is: (a) potentially relevant to the FOIA request at issue in this case; and (b) not already in the State Department’s possession.

The State Department shall file a status report, no later than Monday, September 21, 2015 at 12:00 p.m., informing the Court of the following: (1) the process agreed upon between the FBI and the State Department for the sharing of information relevant to this lawsuit; (2) the status of the Inspector General of the State Department’s report regarding Mrs. Clinton’s use of a private server; and (3) a timetable for the completion of any ongoing searches related to this lawsuit. Signed by Judge Emmet G. Sullivan on August 20, 2015. (lcegs4)

I plan on being in the courtroom for the next status hearing, the proceedings of which will inform the court’s decision on any discovery requests Judicial Watch may file in the coming weeks. During his time at the podium, JW attorney Michael Bekesha floated the idea of additional discovery against the State Department, which as Professor Jacobson mentioned above, would be a significant departure from standard operating procedure in FOIA cases.

JW’s basic argument today boiled down to their desire to gain more information about the “system of records” that Clinton used to conduct government business, and to extend the search already in progress to that complete system. At this point, we know where the already-revealed records came from, but because we don’t have access to the complete system of records Clinton and her staff used, in reality we have no idea where the actual records are hidden.

The State Department did not issue Clinton an official agency account, Blackberry, laptop, or any other equipment one would reasonably assume a chief diplomat would make use of while performing her official duties. Furthermore, the devices Clinton used are out there; to wit: The State Department tells us that they don’t have the devices [Clinton used to perform her duties], which means that Hillary Clinton did.

Or, does.

This is the heart of JW’s argument that State’s searches as per the FOIA request have not been reasonable. Although the DoJ is quick to argue that we’re dealing with Clinton’s personal system, as opposed to a government one, their logic is faulty. Clinton had her own system, and as Bekesha remarked during his discussion with the judge, “[t]his is how Mrs. Clinton conducted business.”

I expect fireworks in the coming weeks. Bekesha floated the idea of deposing the State Department’s Under Secretary for Management Patrick F. Kennedy on what State knew about Clinton’s system of records. As was mentioned pre-update, Judge Sullivan suggested to JW (“suggested” as coming from a judge is more than a suggestion) that they hold off until the 30 day “dialogue” period is over before asking for any more discovery. If they do decide to request discovery, whether in the form of depositions or otherwise, we won’t have a ruling on that request until the October 1 status hearing.

One interesting nugget from the DoJ’s time at the podium: when asked about the status and timeframe of any additional responsive documents, counsel from the DoJ mentioned that State is reviewing pages containing communications from two additional employees; one of those employees is a senior advisor to Under Secretary Kennedy. DoJ declined to offer the names of those two employees in open court. (Counsel told the judge that he did not have the names in front of him, and that State has declined to release that information due to privacy concerns.) The existence of this additional review could increase the likelihood of a discovery request for information directly from the Under Secretary’s office regarding what State knew about Clinton’s system of records.

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Comments

That giant puckering sound (and who knew a pucker could be audible?) is issuing from the entire Ol’ Walleyes camp, including Huma the Muslim Brotherhoodlem moll.

This is a pissed judge, and he’s getting more incredulous at the conduct of the government as time passes.

Odd, too, Barracula is so passive here, since he and his regime are implicated along with Hellary.

Or is it really odd…???

    This currently looks (to most low information voters) like a partisan attack or a Hillary screwup. Our Lightworker President’s fingerprints may be in there somewhere but, for now, Hillary is busy fingering everything.

    Some day, some body may finally ask that awful question that goes something like … “Isn’t this screwup of a State Department part of the Obama Administration ?” … but for now anyway, our blameless (and useless) President isn’t part of this story.

      Ragspierre in reply to Neo. | August 20, 2015 at 8:07 pm

      Oh, I think he’s he kid with the stick that keeps poking the scorpion.

      Obama is quiet because he’s behind this.

        Barry in reply to Ragspierre. | August 20, 2015 at 9:38 pm

        “Obama is quiet because he’s behind this.”

        Yes, clearly. I’ve said for a long time, a year or more, Hillary would not get the nomination. It also means the clintoons do not have the goods on Obama. And he knows it.

Sammy Finkelman | August 20, 2015 at 3:08 pm

I think Judicial Watch needs to file a separate FOIA request (even though they also asked for discovery) concerning what they know of about what sorts of e-mail devices and transmission systems Hillary Clinton and the top aides she most frequently communicated with used, and who knew about this and when.

And what is known of the capabilities of any devices they used.

    They’ve got 30 days to figure out their strategy, at any rate.

      Sammy Finkelman in reply to Amy Miller. | August 21, 2015 at 1:33 pm

      A new FOIA would not be answered quickly, unless somebody makes a decision to actually answer it quickly fully, which is always possible given the political ramifications of all of this and possible political pressure or embarassment or legal problems caused by delay. It gives someone a legal way to get all this out publicly.

      All sorts of people have now suddenly got a lot of responses to FOIA requests.

      Although Judicial Watch probably would not be answered quickly on this, they should file it anyway, and maybe they, or somebody else, has. At least it adds some more responsibility to preserve records. And if this is till going on in a year or two, they’ve done something useful.

      I’ve been told in the past that FOIA requests to the State Department are known to be slow.

    DaveGinOly in reply to Sammy Finkelman. | August 20, 2015 at 7:10 pm

    Such a request may not be possible under FOIA, which is concerned with document requests. I’m not sure of this, but the fact that JW is threatening to ask for depositions (to get officials to go on the record about the nature of their systems) seems to support this idea. Otherwise, couldn’t they just amend their (FOIA)request for the information they seek?

The 31 days for another status report and then another 10 days until the next hearing seem generous, but maybe there is a good reason.
Perhaps obama’s inactivity is an indication that he is going to let Hillary twist in the wind.

    The judge pressed DoJ on this point, but allowed the 30 days. I’m guessing that he agreed to it because DoJ offered a general timeframe of 30 days to finish additional reviews. The next status hearing was scheduled for mid-september anyway, so it’s not that huge of a shift in the timeline of when we can expect new information.

    Neo in reply to Rick. | August 20, 2015 at 7:40 pm

    What can Obama do in this story have doesn’t get him “dirty” ?

    He can’t fire Hillary .. she is already gone (but not forgotten)

    I’m sure he has been asking himself the question … “At this point, what does it matter that Hillary had been (my) Secretary of State ?

Sammy Finkelman | August 20, 2015 at 4:14 pm

Everything about the servers is so unclear.

From today’s Wall Street Journal, it would seem that it was the new server that was handed over.

If it was the new server, it was NOT the server that was used while she was Secretary of State.

The server that was Chappaqua was moved to New Jersey, but it is not clear when. After the stry broke in March, 2015? The Secret Service wasn’t enough protection.

Platte River Networks was hired to handle “the server” in June, 2013. Wasn’t there a migration, in addition to the change of email address in 2013 somewhat earlier in 2013?

At some point Platte Rover Networls took possession of it, and I am not sure what take possession means. It was operating in New Jersey until last week. Since when is not clear. March, 2015? June 2013? Sometime in between?

All of her e-mails, the ones later deleted and the ones that were not, were searched by her attorneys. They may not have searched the server, but first copied all of her e-mails (to and from certain addresses only) to thumb drives or to other computers. Those copies may or may not have been destroyed.

The two e-mails that were the first to be rated classified were written by lower ranking State Department officials and forwarded to Hillary Clinton’s private, secret e-mail address by Jake Sullivan and Huma Abedin. They both now work in her presidential campaign and Bill and/or Hillary Clinton may have arranged both of their marriages. Huma Abedin is married to Anthony Weiner and Jake Sullivan is married to Margaret (Maggie) Goodlander.

And to think that Judge Emmet Sullivan is a BILL CLINTON appointee!

I believe that’s a giant sucking sound we hear. And personally I’m not at all surprised that someone named Humma Weiner would make such a sound.

Does the Not-So-Grand Old Dame look just plain tuckered out in that photo, or what? She’s so tired looking I just don’t think she’s going to make it.

Okay. Somebody is going to have to pleade guilty to something. Since Hillary is above the Law – it will have to be her aides. I suspect it will be more than one.

Who would have thought that Huma would end up in prison before her husband Andrew Weiner?

[…] Jacobson reports at Legal Insurrection that the judge was “shocked that State Dept has not communicated with FBI and DOJ.” […]

Henry Hawkins | August 20, 2015 at 6:37 pm

Thumb drive me, Hillary. Thumb.. drive.. me.. HARD.

Although the DoJ is quick to argue that we’re dealing with Clinton’s personal system, as opposed to a government one, their logic is faulty. Clinton had her own system, and as Bekesha remarked during his discussion with the judge, “[t]his is how Mrs. Clinton conducted business.”

Hillary appears to have been operating under the mistaken impression that she could conceal official communications by storing them on computers that were not government property. If so, this is extremely naive. The troopers in the police agency I worked for were regularly reminded to not use their personal devices for work, because doing so would make them subject to review in response to disclosure requests (aka FOIA request at the federal level). Somehow, I find this presumed reason for her use private devices hard to believe. But what other possible motive could Clinton have had for using private devices? Is she really that ignorant of the law, or did she presume that because she’s Hillary that she’d be allowed the secrecy she so obviously desired? Any device upon which original government communications are stored automatically become subject to review in response to FOIA requests. It can’t be otherwise, to do otherwise would allow exactly the type of dodge attempted by Hillary and company, which is clearly not permissible.

Note that this entire “adventure” was an “unforced error”

I can’t help thinking that the FBI’s involvement in this stuff means that we will never learn the truth. The FBI will bury the truth, report that it found nothing, etc.

Somebody was the ‘holder’ for the TS info. Somebody was tasked with reviewing the information being properly marked and stored. Holding it in an unsecured server is a big violation.

Who’s the holder? Who were the users with need to know and the appropriate clearance? Did all the users have the appropriate clearance. There were serious crimes committed by somebody.

    Sammy Finkelman in reply to forksdad. | August 21, 2015 at 1:49 pm

    Hillary Clinton and her lawyers prevented, or thought they prevented anybody from being questioned about it by having anybody who touched it subject to attorney client privilege.

    There was a decision or a claim made there was no classified information – besides Davd Kendall probably himself had a security clearance, although not everybody who worked for him.

    The question cannot be reached because of attorney-client prvilege. Should it be reached everybody involved will take the 5th amendment, although that might force Hillary to change lawyers.

      The attorney-client privilege falls away if the opposing party can make a showing that the attorney’s advice was sought for the purposes of committing a crime.

Hillary’s handling of scandals reminds me of Bob Dylan’s singing: How could you do it for so long and still be so bad at it?

Face it. She is our queen and her coronation will happen. Don’t fight it.

Sammy Finkelman | August 21, 2015 at 1:50 pm

There’s another issue now. Reuters has discovered, in looking into exchanges of mail between Hillary and her top aides (4 of whom also had non state.gov addresses) taht what was discussed between them often included information that had been communicated to the U.S. government in confidence. Such information is presumed classified.

Sammy Finkelman | August 21, 2015 at 2:06 pm

Earlier I thought they had turned over the old server because it was in New Jersey and not Chappaqau and because it was described as the server she used while she was secretary of State.

I think now maybe it’s more like this:

Everything was transferred to the new server in 2013.

It’s not publicly known what happened to the old server and if it is still around.

The new server was kept in Chappaqua.

In the fall of 2014, it was either read directly, or archived mail dating from her time as Secretary of State was copied to thumb drives or other computers to be searched and examined.

After over 55,000 pages or printouts were sent to the State Department n December, 2014, and the State Department indicated they were satisfied, the server was set to automatically delete all mail older than 60 days, and everything older was deleted.

A copy of what had been sent to the State Department had meanwhile, been put on a thumb drive and backed up on one or two additional thumb drives.

What about what she did NOT send?

We don’t know.

Then, at some point in late 2014 or early 2015, and maybe even after the story broke in March, the server was moved from Chappaqua to New Jersey, probably with the intent that it should be overwritten.

It continued to function as a server for clintonemail.com until mid-August, 2015.

Meanwhile, although the State Department received the 55,000 pages in December, they didn’t scan them until March, after the story broke. They also granted permision for Hillary Clinton to retain copies, but without the authority to release anything to any third party, on the grounds they needed to be reviewed for classification, but in the meantime they were not considered classified, and it was assumed even if anything might be considered classified, it would not be Top Secret.

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