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Hillary lawyer: No obligation to retain “personal” emails and we decide what’s “personal”

Hillary lawyer: No obligation to retain “personal” emails and we decide what’s “personal”

Preempting the Court’s ability to rule.

https://twitter.com/czechov/status/633784760452513792

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.

———————

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.]

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Comments

“Oh! What a tangled web we weave

when first we practice to deceive!”
—Gomer Pyle, USMC

The longer this goes on, the more and more I think she’s going to get away with it. I don’t think Obama is going to go after her. The only scenario where the law will apply, is if Joe Biden runs for President, and Obama decides to bury Hillary. Even then, it’s very doubtful.

Hillary has issued a statement (NOT!): “We are not pleased!”

So said Dame Hillary, the presumptive heir to the presidential throne!

mumzieistired | August 26, 2015 at 6:27 pm

I’m guessing that lots of her “private” e-mails were about deals between foreign entities and the Clinton Foundation: “You pay our foundation for my husband to give a speech, and I will make sure the State Department approves whatever you want…”

    Tlag Nhoj in reply to mumzieistired. | August 26, 2015 at 9:12 pm

    Dear Boris. How are things in Moscow. Hope you are doing well. The U.S. will not intervene if you invade Crimea. Chelsea’s wedding is coming up. It should be a great time. Best, HRC.

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

Where have I heard a similar self-serving disclaimer before?

Ah, the centrifuges they are spinning…

“The Dowager Empress of Chappaqua* has decided what is and is not relevent and you will not be allowed to criticize or review her conduct, plebe”

*I LOVE that phrase. I wish I’d thought of it first

Do I get to decide what’s “income” too?

Why do I think Hillary would be a ruthless dictator if she gains the power she thinks is hers? I have met psychopaths in my life. Memories return when I read about her and her “staff.” She is very dangerous.

under the law the 30,00 work emails should never have been destroyed … printouts of the emails are NOT the records … they are facsimiles … i.e. not the records themselves, those are the electronic copies … which she also destroyed … a clear violation of the law right there …

    Watergate(fired for lying) + Whitewater + Travelgate + Filegate + PrivateServerGate + ArabSpring + Benghazigate + QatarGovernment + … see the pattern here?

    Milhouse in reply to dorsaighost. | August 27, 2015 at 12:44 am

    That is not correct. When dealing with electronic records there’s no such thing as “the record itself”. Everything is a copy. And there’s no legal distinction between an electronic copy and a hard copy.

      Everything you post on here is a lie. There is a difference between the electronic records and a paper printout. Metadata, ways of authentication and verification, they all differ when you discuss paper v electronic copy. I can’t believe people scroll across your comments so often here and don’t call you out. You are a serial liar.

    Well she didn’t even hand the original emails to the State Department. AND STILL HAS NOT. The FBI only just recently got the thumb drives from David Kendall her lawyer that obviously must be electronic copies of what she sent to State, which is a lot better than what State had before, but if Kendall can be minimally believed, those 30k ‘personal’ emails were not copied to the thumb drives.

      Forgot to add, and Judge Sullivan had to write a judicial order forcing State to ask the FBI pretty-please-may-I to search the info in its possession (what can be recovered from the wiped server + the Kendall thumb drives) for things responsive to the FOIA requests.

      Presumably even without State’s may-I, the FBI continues to examine the electronic records for breaches of national security.

This is the women who couldn’t tell Top Secret information from spam in an email. Trust her judgment about the definition of personal? The judge won’t buy it.

Midwest Rhino | August 26, 2015 at 9:25 pm

Don’t they already have emails that were NOT personal, that she did delete? She doesn’t get to call business emails personal just because she, personally, could go to jail for failure to disclose them.

And of course ordering a wipe would be further destruction of evidence. And there’s the dodge of the FOIAs. Yet many claim she will dodge all this, and only her campaign will be harmed.

And then there is Lois Lerner, and Fast and Furious … and pedophile island, etc.

    Milhouse in reply to Midwest Rhino. | August 27, 2015 at 12:56 am

    I believe it’s a catch-22-type situation. The only work-related messages they’ve found that she deleted, they found because the other party was on a .gov server, so she knew it was already in government custody, and therefore she was entitled to delete her own copy. If (as we all suspect) she deleted work-related messages that aren’t already in government custody, then by definition we can’t find them in the records we have access to, so how can we prove they were work-related? She can claim that they weren’t and we can’t prove her to be lying.

I wonder what would happen to a CEO whose company was under SEC investigation were he to tell the judge that he, and not the judge or the SEC, was the sole determinant of what company records are relevant to the investigation.

    Milhouse in reply to randian. | August 27, 2015 at 12:48 am

    As I understand it the CEO would get away with it, unless the prosecutor could prove that one of the records he deleted was relevant.

      sequester in reply to Milhouse. | August 27, 2015 at 3:33 am

      Deletion of records in a Corporation is covered by 18 U. S. C. §1519 — the Sarbanes-Oxley Act. That law makes it a felony punishable by up to 20 years imprisonment if one “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence” a federal investigation.

      That act applies to public companies.

        Milhouse in reply to sequester. | August 27, 2015 at 9:22 am

        The key phrase there is “with the intent to impede, obstruct, or influence” an investigation. If the CEO says the record he deleted was not relevant to any investigation he was aware of, and thus he did not delete it with the required intent, he gets away with it unless a prosecutor can prove otherwise.

Was Hillary Clinton not entrusted with the public’s property in her official government position as Secretary of State of the United States?

I think so. And if I’m right, then she was a “trustee” and common trust law should control.

Was this not “commingling”?

I think so. Breach of trust.

In this case, inter alia, a criminal breach of trust.

    Milhouse in reply to janitor. | August 27, 2015 at 12:51 am

    What public property was she entrusted with? The physical plant of Foggy Bottom, all the embassies and consulates, etc? She never mingled that with her property in Chappaqua; what would it even mean to do so? The State Dept’s annual appropriation? I’ve never heard of any allegation that she mixed that with her personal money. What other property was in her trust, and which of her property did she mingle with it? Her work email is not property.

      janitor in reply to Milhouse. | August 27, 2015 at 4:00 am

      Her work-related emails contain information, are both tangible and intangible property that belongs to the U.s. government.

        Milhouse in reply to janitor. | August 27, 2015 at 9:23 am

        No, they are not property. YOu simply have no idea what you’re talking about.

          janitor in reply to Milhouse. | August 27, 2015 at 5:18 pm

          Information is a form of “property”.

          Perhaps it would be easier for you to think about the information you already know of as property. For example, trade secrets, methods of doing business, customer lists.

          Every email created by Hillary Clinton while she was acting as an employee of the federal government and handling (and “entrusted” to handle its information, manage it, and so forth, with a top security clearance) is property of the federal government.

          Another example to help you understand. Suppose you have an employee who types letters for you, does your books, creates files, keeps track of your accounts, etc. Then one day you fire her. Do you believe that she can take the information with her and not give it to you, that she “owns” it? No. It belongs to you. Do you think it would make a difference to you if the employee decided — contrary to your rules — to do the work on her own laptop?

          Information is property. And every tangible representation of it is also property. Property that does NOT belong to the employee.

So are e-mails concerning the specifics of her selling US influence for for money disguised as speaking fees considered private correspondences or are they government/work related?

    Milhouse in reply to Cleetus. | August 27, 2015 at 9:24 am

    Private, of course.

      You are simply an idiot, and a liar. Not only are such emails evidence of violations of ethical standards, they involve her official capacities and thus are public; also, they are likely evidence of violation of numerous sections within 18 USC such as bribery. Bottom line is that they are public because they involve her actions and interactions as a public official. None of such emails involve Hillary Clinton as the prime object – they involve the US Sec of State, and thus are public. They are not deliberative either, before you try that angle. They are 100% responsive to FOIA and are captured within the letter and spirit of the FRA.

Too bad for Nixon that he did not think of this one. “the 17 and 1/2 minutes of deleted tape was personal information”..

She’s wearing an orange jumpsui. . . er pants suit. Is this a finger in the eye of the investigators, a typical Clinton snide comment about how the legal system works differently for her (and her hubby) or a subconscious choice of attire?

Orange looks good on her.

What a crock! Classified emails are not “personal” and she does not get to choose.
She’s twisting like a frog on a gig, and has no place to go.
If classified information was exposed or stored on an uncleared server, it was, she and anyone else with knowledge of this is obliged under national security.

She and Bill , seem to think that they are above the law. They lost 126 people who were friends or co-workers who died or committed suicide just before testifying against them. She wrote her Thesis on Marxism. This known liar and Gov. employee, who has accomplished Nothing on the Job. She is Left-Wing and wants to finish up The Oblamo Destruction. I have read that the “World Bankers” , back in 2007 promised her the Presidency after Obama.

    Milhouse in reply to bobgood1. | August 27, 2015 at 12:27 pm

    You’re nuts. Stark staring nuts.

    She and Bill , seem to think that they are above the law.

    This is true, but it’s about the only true thing in your comment.

    They lost 126 people who were friends or co-workers who died or committed suicide just before testifying against them.

    Garbage.

    She wrote her Thesis on Marxism.

    More garbage.

    I have read that the “World Bankers” , back in 2007 promised her the Presidency after Obama.

    What the **** is that supposed to mean? Who are these so-called “world bankers”, and how do you imagine they can promise the presidency to anyone? Do tell. Are you referring to the Bildbergers? Rootless cosmopolitans? New wold order? Elders of Zion? Adieu, adieu, adieu? Hooknosed bloodsuckers? Have I missed any?

Zelsdorf Ragshaft III | August 27, 2015 at 10:38 pm

Seems to me she lost the ability to claim privacy as soon as she comingled government data, both classified and unclassified on her server, she lost the right to decide what should and should not be saved as because the information on the server belonged to the government, the device became government property.

Catcher in the Wry | August 28, 2015 at 11:56 am

Since when do those under a cloud of legal doubt get to decide what is relevant and what is not?
This is like O.J. and his legal “dream team” throwing away the bloody glove and knife because they didn’t consider it significant.
Anyone not named Clinton would be in an orange jump suit by now.

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