A federal judge has rebuffed the State Department’s drive to shut down a Republican National Committee Freedom of Information Act lawsuit over the emails of top aides to Hillary Clinton.
The Justice Department turned heads with a court pleading last month that asked a judge to excuse State from complying with the GOP requests because they could take “generations” to process. One estimate State offered for an early formulation of the requests was 75 years.
U.S. District Court Judge Amy Berman Jackson said at a 45-minute hearing Thursday morning that she does not plan to grant State’s wish, in part because the number of emails at issue in the case appears to have narrowed from about 750,000 pages to roughly 76,000 messages.
“We’re not talking about you not getting anything,” Jackson told RNC lawyer Edward Kang. “You need to assume … that’s not going to be granted.”
In an order issued Thursday afternoon, the judge ordered State to begin producing records to the RNC in the case at a rate of “no less than 500 pages per month.” The RNC will also be able to prioritize certain subjects it is interested in, the judge said.
The RNC suit — originally seeking emails to or from former Clinton chief of staff Cheryl Mills, former deputy chief of staff Jake Sullivan, Undersecretary of State Patrick Kennedy and computer aide Bryan Pagliano over an extended period during Clinton’s tenure — was the only known case relating to the Clinton email saga in which State asserted it would not comply with the request because doing so would be overly burdensome.
However, Jackson raised doubts about that position Thursday, saying prior instances that Justice Department lawyers representing State cited of judges finding an unreasonable burden were “not entirely apposite.”
For “most of the case law the State Department cites, it would just be too burdensome to find” all the requested records, the judge said. “Here we’re talking about electronic records,” and the issue is the volume, not a search that requires rummaging through an entire agency, she added.
At another juncture, though, Jackson said the RNC’s request as originally phrased was “breathtakingly overbroad.”
State said it had an ability to process about 500 pages per month in the case, given its other pending cases in and out of litigation, but that figure didn’t impress Jackson.
“At first blush, that seemed to me to be very low,” she said. (State has since started offering even lower production rates in other cases: often just 300 pages per month.)
Jackson also expressed concern that around the time the State Department finished releasing the roughly 54,000 pages of Clinton’s emails earlier this year, the number of staffers devoted to processing FOIA seemed to drop off, even though many requesters are demanding other State Department records in advance of the November election.
“Perhaps there’s an ability to beef the staffing back up between now and November,” the judge said.
Justice Department lawyer Elizabeth Shapiro called the apparent staffing drop “a little misleading,” saying detailees brought on for the Clinton email project had to return to their regular duties and about 44 people hired at Secretary of State John Kerry’s request were still getting training and security clearances.
“There are enormous efforts being made” to process records at State, Shapiro insisted.
State FOIA official Eric Stein said the agency has the ability to process about 21,000 pages a month in total. “We’ve been hiring a lot of people,” he said.
Jackson said that even if State expanded its efforts, it wasn’t clear the RNC deserved priority over dozens of other requests and suits filed after Clinton’s exclusive use of a private email account was revealed in March 2015.
“Plaintiff is nowhere near the first in line. In fact, the plaintiffs are pretty late to the party,” the judge quipped.
Shapiro complained that State is already the subject of court orders the government considers “unreasonable,” including an order to index 10,000 withheld emails by next month. She also said giving priority to cases where suits are filed sets back requesters who don’t have the means or sophistication to file suit.
“In some sense, it’s a zero-sum game,” the Justice Department lawyer said. “Those people also deserve the same attention.”
Jackson said she accepted that there was a public interest in getting the records out promptly, but with the election now roughly four months away, it seems unlikely State will crank out a large volume of the messages in time for voters to assess them.
“It’s physically impossible to produce the volume of records sought on a schedule that’s driven by the upcoming election,” the judge said.
Kang, representing the RNC, said the GOP has already narrowed its requests.
“We’re willing to try to limit it further,” he said, adding that the party is willing to take classified records out of the mix to speed the process. He also said the party isn’t seeking to leapfrog other requesters, but he took exception to State’s effort to stop processing its requests altogether.
The judge’s new order dictates that the RNC will receive at least 500 pages in the case at least three times before the November election. State usually commits only to review a certain number of pages, often producing far fewer to the requester, but the order seems to require 500 pages of material be turned over to the GOP monthly.
Josh Gerstein is a senior reporter for POLITICO.