State Department seeks to limit discovery by Judicial Watch in Clinton email case

John Sexton,

In February a federal court granted Judicial Watch the right to question various State Department employees (and former employees) connected to Hillary Clinton’s private email server. The judge stated the questions should be “narrowly tailored” to the issue of whether or not Clinton’s private server was created to skirt FOIA laws and asked Judicial Watch to come up with a plan to carry out this discovery.

Tuesday the State Department filed a response to Judicial Watch’s discovery plan seeking to expressly forbid any questions about a range of related issues such as the security of Clinton’s server, the special work status of Clinton aide Huma Abedin or classified information on her system. From the filing:

Based on the Court’s statements at the February 23 hearing, State understands the scope of permissible discovery to be “the reasons for the creation of [the] system.”Tr. of Feb. 23, 2016 Hr’g at 78. State respectfully submits that the Court’s order should specify that discovery is limited to this topic. To that end, State requests that the Court clarify that Plaintiff is not entitled to discovery on matters unrelated to the topic identified by the Court, to include without limitation: the substantive information sought by Plaintiff in its FOIA request in this case, which involves the employment status of a single employee; the storage, handling,transmission, or protection of classified information, including cybersecurity issues; and questions about any pending investigations.

humahillary_small-2 State Department seeks to limit discovery by Judicial Watch in Clinton email case

In particular, consistent with the invocation of FOIA Exemption 7(A) by the Federal Bureau of Investigation (“FBI”) in Leopold v. U.S. Department of Justice, No. 1:15-cv-2117-RDM (D.D.C. filed Dec. 8, 2015) (Motion for Summary Judgment, ECF Nos. 7-9), State objects to any discovery requests pertaining to theFBI’s pending investigation into matters referred to it by the Inspectors General of the Intelligence Community and State in connection with former Secretary Clinton’s use of a private email server.

So, for starters, State is seeking to rule out any fishing in other ponds, but that’s not all. In addition, State asked the judge to allow it to have employees submit a declaration and then determine if a deposition would take place in each case:

State further proposes that it have the opportunity to submit declarations from any of the current State employees identified by Plaintiff in its discovery plan regarding the extent of their knowledge of information potentially relevant to the ordered scope. The parties could then meet and confer regarding whether there is a need to take that individual’s deposition and, if necessary, apply to the Court for appropriate relief.

This sounds like an attempt by State to continue to wrangle over each possible deposition, with State arguing (in all probability) that there is no need for any deposition once an employee has submitted a declaration about what they know. In other words, State would prefer written statements and then act as some kind of buffer to get an idea of what kind of follow up questions JW’s attorneys would like to ask before deciding if there will even be a deposition.

In addition, State asked that no deposition be published, released or even paraphrased for at least 3 days. Why? Because State is terribly concerned about the possibility of classified information (or information about the FBI investigation) leaking out. Of course this also gives State time to work up any spin it feels is needed in advance of possible bad publicity.

Judicial Watch has 10 days to respond to the government’s filing.