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Is Hillary sworn deposition as to server next in Judicial Watch FOIA case?

Is Hillary sworn deposition as to server next in Judicial Watch FOIA case?

Court orders expedited hearing on Judicial Watch request for discovery as to electronic devices and servers.

Will Hillary Clinton be subject to a deposition under oath as to her use of various electronic devices and servers as part of the Judicial Watch FOIA federal lawsuit seeking records as to Huma Abedin’s outside employment?

That is a distinct possibility in light of the State Department’s apparent failure to comply with a Court order as to its efforts to search Hillary’s original server for records.

The Court, at the request of Judicial Watch, has expedited a status conference originally scheduled for September 10, to August 19:

MINUTE ORDER. In light of the State Department’s August 14, 2015 Status Report and Judicial Watch’s August 17, 2015 reply thereto, a status hearing will be held on Thursday, August 20, 2015 at 12:00 p.m. in Courtroom 24A. The State Department shall file a reply to Judicial Watch’s August 17, 2015 response no later than 12:00 p.m. on August 19, 2015. Signed by Judge Emmet G. Sullivan on August 17, 2015. (lcegs4) (Entered: 08/17/2015)

In its papers , Judicial Watch says it intends to seek discovery, which normally does not take place in FOIA cases, because of the State Department’s non-compliance. (Full embed of Judicial Watch request at bottom of post.)

While Judicial Watch has not specified what discovery it seeks to take, “discovery” can include depositions, which are sworn testimony on the record. Other forms of discovery would appear inadequate given the history of the case.

Given the players involved, discovery logically would include Hillary, Abedin, and Cheryl Mills, not to mention Hillary’s attorney David Kendall as custodian of at least some records.

Judicial Watch provided the following statement in response to our inquiry:

“We believe that discovery is now the only way to receive the necessary information, wherever that may lead.”

Background – How We Got Here

On Friday,  August 14, 2015, we covered the State Department’s Court-ordered Status Report in

That court order came after the Court ordered Hillary, Abedin and Cheryl Mills not to destroy records, and other court proceedings as to whether all electronic devices had been searched for records.

That August 14 Status Report was supposed to detail whether and to what extent the Department was working with other agencies to recover data from the server Hillary Clinton turned over the Department of Justice.

The State Department’s response was that it will not even attempt to search Hillary’s server because it has not duty to review data in the possession of other agencies, and because it relied on a declaration by Hillary under penalty of perjury that all federal records had been produced.

Judicial Watch today filed a Response in which it alleges non-compliance by the State Department with the Court order. That Response states, in part:

1. Like its previous filings, Defendant’s August 14, 2015 Status Report fails to provide the basic information requested by the Court. See Plaintiff’s August 10, 2015 Response.

2. The Court ordered Defendant to identify any and all servers, accounts, hard drives, or other devices currently in the possession or control of the State Department or otherwise that may contain responsive information. In response, Defendant submitted a declaration by the head of Defendant’s FOIA office in which he testifies that Defendant “is not currently aware of any personal computing devices issued by the Department to former Secretary Clinton, Ms. Abedin, or Ms. Mills that may contain responsive records.” Defendant’s August 14, 2015 Status Report at ¶ 8.
3. Taking this sworn statement on its face, it appears as though the declarant made no effort whatsoever to find out what electronic devices the former head of the agency and two of her closest advisors used to conduct official government business for four years and where these electronic devices may be located or if they are still in existence.

4. Similarly, Defendant offered no evidence whatsoever concerning servers, backups, or other devices in its possession.

5. In addition, Defendant does not identify whether former Secretary Clinton was
provided or used a state.gov email address.

6. Moreover, only now – more than 18 months after the initial searches were conducted – does Defendant disclose that it searched the state.gov email accounts of “two other former employees.” August 14, 2015 Status Report at ¶ 7. Defendant does not identify who those employees are or whether they also used former Secretary Clinton’s email server or any other non-state.gov email address to conduct official government business. The mere fact that two other unnamed individuals may have records responsive to Plaintiff’s FOIA request is material, should have been disclosed at the July 31, 2015 Status Hearing, if not sooner, and raises a variety of additional questions.

7. While wholly ignoring the Court’s directive, Defendant dismisses the Court’s concerns as irrelevant by attempting to revive an argument already rejected by the Court.

8. During the July 31, 2015 Status Hearing,1 Defendant argued that this case is an ordinary FOIA lawsuit and the next step should be dispositive briefing concerning the adequacy of Defendant’s searches. The Court rejected this argument. The Court stated:

But there’s one thing about me sending the Government off on a fishing expedition to try and find something. There’s another thing though for the Government to ask former government employees tell us whether or not you maintained our files on your private servers and other electronic devices or
otherwise. And otherwise would be electronic devices or in that box in their garage or whatever. Tell us that. And if the answer is yes, you must declare under penalty whether or not you have provided the Government with copies of all of those materials. And if you haven’t, give us those materials and then we determine whether bases exist for other kinds of discovery.

Transcript at 21 (emphasis added).

9. Following the July 31, 2015 Status Hearing, the Court gave Defendant the opportunity to provide answers to questions that are fundamental to whether Defendant has satisfied its obligations under FOIA. Defendant did not do so. It has only submitted partial answers with material omissions. Until complete answers are provided to these questions, the Court and Plaintiff cannot even hope to understand – let alone determine – whether Defendant has conducted searches reasonably calculated to uncover all relevant documents.

10. Because Defendant and the three individuals – who apparently are really five individuals – have now failed to comply with the Court’s order and to provide complete answers to basic questions, Plaintiff agrees with the Court’s assessment that a time may come that other kinds of discovery” would be appropriate. That time may be now.

————-

Judicial Watch FOIA Case Huma Abedin – JW Response to State Dept August 14 2015 Status Report

[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

Good heavens. Without the magic of her make-up artists (who must use cement trowels to apply foundation), she looks like a haggard old . . . well . . . hag.

She IS wearing makeup.

Everything is seemingly spinning of of control, as Ed Driscoll says sometimes.

That ol’ Coriolis Effect is a bitch once that handle’s pushed and the Thunder Mug of Dooooooom goes to work!

Heh…!!!

This lawsuit and the Benghazi Committee investigation are really in addition to all the illegally held and transmitted classified documents.

– –

My understanding – and those with direct knowledge should feel free to correct me if wrong – is that the most sensitive of these classified items cannot be simply copied and forwarded in an email, the secure server upon which they reside will not allow it.

In order to get that information “off” the server, permission must be granted, forms filled out, and a CD or DVD burned with the info desired. It remains against the law to transmit that info in any unauthorized manner or to any unauthorized person or system.

So there has to be a paper trail. The person who signed off on burning the CDs of classified info is the one to talk to.

    Sammy Finkelman in reply to Estragon. | August 17, 2015 at 5:44 pm

    is that the most sensitive of these classified items cannot be simply copied and forwarded in an email, the secure server upon which they reside will not allow it.

    My understanding at this point is that no classified document may be copied and forwarded in an e-mail, but the classified information can be saved to a hard drive and then sent or cut and pasted.

      Sammy, you can forward a file/document easily (at least at the Secret and below level) as long as you are remaining on a classified system. To move a file from a classified to an unclassified system, you have to copy to a media and physically move the media between the two systems. The systems do not communicate with one another.

      Only certain people with specific requirements have the permissions to do this as the classified computers almost always (like 99.9% of the time) have the CD/DVD/USB ports’ write capability turned off.

    Caver37 in reply to Estragon. | August 17, 2015 at 6:14 pm

    Estragon, your understanding of the procedure for moving information “off” a classified server is correct and this procedure has been in place for a very long time.

    After Wikileaks broke, the procedure became even more stringent and only people with specific requirements were authorized to transfer information between different systems.

    I was able to do so since the duties of the position that I held at the time made me an information nexus between two different groups. One group worked almost exclusively with civilians and foreign nationals; the other group did not even have unclassified computers in their building.

    Every time I moved files across the membrane via CD, the file I received from the secret squirrels had a document attached which was signed off by their information security folks stating that the base file did not contain any classified information. Before I passed the file on electronically, I had to fill out a form about what I was doing, basically what information the file contained and to whom I was sending the file. This form was signed off by my commander (a Colonel).

    I also ran into a similar situation when I put together a product for my boss which was briefed to a group of General Officers. Everything I used for development of the product was from unclassified sources, but when it was pre-briefed to my boss’s boss (a General), the question was asked if the product was classified due to the amalgamation of all the information. We had to send it up a couple of levels to get a determination. Thankfully, it was not classified, so I did not have to spend lots of time explaining myself and they did not have to trash my hard drive.

Sammy Finkelman | August 17, 2015 at 5:42 pm

2. The Court ordered Defendant to identify any and all servers, accounts, hard drives, or other devices currently in the possession or control of the State Department or otherwise that may contain responsive information.

I think maybe the State Department ignored the phrase “or otherwise.”

I think there must be a lot of written communication between the State Department and Hillary Clinton and her lawyers concerning her e-mails between about August 2014 and December 2014, and that should be the subject of a separate FOIA request.

5. In addition, Defendant does not identify whether former Secretary Clinton was provided or used a state.gov email address.

She might have used one to fool the White House when sending e-mail there, by copying it to that address, but it might have been in somebody else’s name anyway. I thought we already knew she didn’t have any state.gov address, and nobody issued her any equipment to use for e-mailing.

Judicial Watch: Doing the work Congress and the Department of Justice won’t do.

    jimb82 in reply to irv. | August 17, 2015 at 6:37 pm

    Judicial Watch: Doing in public the work Congress and the Department of Justice won’t issue press releases on. There, fixed it for you.

The irony is that Judge Emmet Sullivan- who keeps siding with Judicial Watch- is a Bill Clinton appointee.

    Sammy Finkelman in reply to Mercyneal. | August 18, 2015 at 11:08 am

    Bill Clinton, i got the impression, did not appoint judges with the idea that they would be helpful to him in covering things up.

    Probably that would have been thinking too long term and it would still be a lottery.

    So he appointed judges for various political reasons.

Don’t forgot her Blackberry, her Iphone, the Ipad, and one other I-mini devise. No one is talking about those but you know JW has it high on their list.

The State Department did not receive an electronic copy of Clinton’s emails, it received paper copies of the emails, supposedly 55,000 pages. Somebody did that printing. That is a non-trivial amount of work, that’s not done in a couple of hours even with a couple of high speed printers.

My guess is that since David Kendall had a thumb drive copy of the email, it was his office that did the copying. If so, I wonder what security measures they took? Are there any remnants of the data left behind, such as on the hard drive of a printer?

    Ragspierre in reply to Ironman. | August 18, 2015 at 2:36 pm

    THAT last is a VERY good point. A lot of people don’t realize that a modern legal firm’s printer is also a computer with a LOT of memory.

    Some lawyers have been crushed by malpractice suits when they sold off their old printers without very carefully scrubbing their client’s sensitive information from the printer.

Until people start going to jail, these games will continue.

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