State Department to Answer to Federal Judge if Any More Hillary Emails Destroyed

On May 6, 2015, Judicial Watch filed a federal lawsuit against the US Department of state in the United States District Court of the District of Columbia. The complaint reads:

“Plaintiff Judicial Watch, Inc. brings this actions against Defendant U.S. Department of State to compel compliance with the Freedom of Information Act, 5 U.S.C. § 552 (“FOIA”). As grounds therefor, Plaintiff alleges as follows:…”


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5- On March 17, 2015, Plaintiff submitted a FOIA request to Defendant, by facsimile and certified mail, seeking access to the following:

(1) Any and all records that identify the policies and/or procedures in place to ensure that former Secretary of State Hillary Rodham Clinton’s personal or charitable financial relationships with foreign leaders, foreign governments, and business entities posed no conflict of interest to her role as Secretary of State; and

(2) Any and all records concerning, regarding, or related to State Department review of donations to the Clinton Foundation for potential conflicts of interest with former Secretary Clinton’s role as Secretary of State

The timeframe for this request is January 1, 2009 to January 31, 2013.

6- According to Plaintiff’s facsimile transmission report, Defendant received the FOIA request by facsimile on March 17, 2015 at 2:39 p.m. The U.S. Postal Service provided Plaintiff a Domestic Return Receipt signed by Defendant’s agent showing that Defendant also received the request by certified mail on March 24, 2015.

7- Defendant subsequently acknowledged receipt of the request and assigned the request Case Control Number F-2015-05559.

8- Pursuant to 5 U.S.C. § 552(a)(6)(A)(i), Defendant was required to determine whether to comply with the request within twenty (20) working days and to notify Plaintiff immediately of its determination, the reasons therefor, and the right to appeal any adverse determination.

9- Defendant’s determinations regarding Plaintiff’s request was due by April 21, 2015 at the latest.

10- As of the date of this complaint, Defendant has failed to: (i) determine whether to comply with the request; (ii) notify Plaintiff of any such determination or the reasons therefor; (iii) advise Plaintiff of the right to appeal any adverse determinations; or (iv) produce the requested records or otherwise demonstrate that the requested records are exempt from production.

11- Because Defendant has failed to comply with the time limit set forth in 5 U.S.C. § 552(a)(6)(A), Plaintiff is deemed to have exhausted any and all administrative remedies pursuant to 5 U.S.C. § 552(a)(6)(C).”

As you can see, the lawsuit was prompted by the State Department’s failure to comply with an earlier Freedom of Information request they made.

Earlier this month, a status conference was held between attorneys with Judicial Watch and the State Department in front of US District Court Judge Rudolph Contreras. Judge Contreras shared the concerns expressed by Judicial Watch over the possibility of some of the requested documents and emails being destroyed by the State Department and their employees. He warned the State Department attorneys:

“If documents are destroyed between now and August 17, the government will have to answer for that, and, you know, if they don’t want to do anything out of the ordinary to preserve between now and then, they can make that choice. I will allow them to make that choice, but they will answer for it, if something happens.”

At one point during the conference, Judge Contreras asked DOJ attorney Daniel Riess who was representing the State Department and Riess responded:

“THE COURT: All right. If an agency receives a request for documents, and subsequent to that point the documents are destroyed, isn’t that a violation of FOIA?”

“MR. RIESS: I think that it could be construed as that, yes, Your Honor.”

“THE COURT: So there’s some duty to preserve, you have to concede that, don’t you?”

Later on in the conference, the following discussion involved Chris Fedeli with Judicial Watch and Judge Contreras:

MR. FEDELI: Certainly understand that, Your Honor. The concerns that we have about preservation do remain outstanding for us.

THE COURT: I’m sorry?

MR. FEDELI: The concerns we have about preservation, having not been really fully addressed yet, remain outstanding for us.

THE COURT: I understand that, and I am concerned about that as well. If documents are destroyed between now and August 17, the government will have to answer for that, and, you know, if they don’t want to do anything out of the ordinary to preserve between now and then, they can make that choice. I will allow them to make that choice, but they will answer for it, if something happens.

MR. FEDELI: Thank you, Your Honor.

THE COURT: They are prudent people.”

Then later on between Contreras responding to Shapiro:

“THE COURT: You know, I understand everyone’s position, and it is to state the obvious that this is not an ordinary case, and everyone should be working to make sure that whatever documents exist today remain in existence. I understand the government’s position that discovery is extraordinary in FOIA cases. But I am a little bit mystified that the government is not more forthcoming in just answering questions that will help this case proceed on a systematic basis, and on a basis that will allow everyone to get the answers that will eventually help resolve these cases, all 35 of them.”

The key statement of the entire conference was when Judge Contreras told the DOJ attorney that he is holding the federal government accountable if any further documents and emails end up missing or get destroyed. The question is what will the judge do if it is learned that additional Hillary emails are destroyed?

The Obama administration has a long track record of defying court orders and Congress. They frequently violate the US Constitution, federal laws and court orders and act as if they are immune to any form of accountability or legal consequences. We can only hope that Judge Contreras is a man of the law and throws the book at them if they disobey him as I’m sure they will.

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