Lawyers for Hillary Clinton asked a federal judge Monday not to order her to testify about her private email server, saying that any “cluelessness or negligence” by State Department officials about how she managed work-related emails did not equate to evidence that she intended to thwart public records laws.
U.S. District Judge Emmet G. Sullivan of Washington said he would rule as soon as possible after a two-hour hearing, in which Clinton’s personal lawyers, led by David E. Kendall, joined State and Justice department attorneys in asking the court to deny a request by the conservative legal group Judicial Watch to depose Clinton within four weeks.
Sullivan fast-tracked oral arguments on the group’s July 8 request, and a swift decision could involve high stakes for Clinton, who is set to claim her party’s nomination at its national convention next week in Philadelphia.
A decision ordering Clinton to sit for a deposition even if challenged could be distracting before the election and prolong discussion of her trustworthiness, an issue that has hurt her in polls.
Last week, more than a dozen media outlets with the Reporters Committee for Freedom of the Press wrote Sullivan asking the judge to reconsider his order that sealed video recordings of depositions of others already taken in the lawsuit arguing Clinton’s handling of her email setup is a central issue in the campaign.
If Sullivan rules Clinton does not need to be deposed, it could help speed Clinton’s efforts to move past the email controversy and would eliminate her having to face questions under oath about whether her email setup as secretary from 2009 to 2013 thwarted the Freedom of Information Act.
Judicial Watch has publicly released transcripts of depositions it already has taken of Clinton aides and State Department staffers in the case as those concluded. The FOIA lawsuit before Sullivan was brought by Judicial Watch in 2013 and seeks records about the employment arrangement of Clinton aide Huma Abedin.
The FBI ended a probe of the private server arrangement this month saying the handling of classified material in the email setup was “extremely careless” on Clinton’s part but not criminal.
In court Monday, government lawyers told Sullivan said the State Department expects to begin receiving Friday the first batch of “thousands” of previously undisclosed work-related Clinton emails the FBI found. However, Caroline Wolverton, Justice Department senior trial counsel, said she did not know how long it would take to review records or complete the process.
Sullivan cautioned each side not to draw conclusions from his questions as raised the FBI probe and its possible effect on the request to put Clinton under oath in the lawsuit.
“I agree with [FBI Director James B. Comey] that the American public deserves as much information as possible” in a case of national importance, Sullivan said. “The resolution of this case in a fair and impartial manner is critical to the principles of open government.”
However, Sullivan told Judicial Watch attorney Michael Bekesha that since the case began, the “landscape had changed” with the completion of investigations in the email server by the State Department inspector general, FBI and House Benghazi committee. “All that information is public. . .why do you need more discovery?”
Bekesha said none of the investigations focused squarely on Clinton’s obligations under FOIA, or followed up whether Clinton’s statement she used the server out of “convenience” covered her entire tenure as Secretary.
To Kendall, Sullivan asked why Clinton would not give sworn testimony as she did to the FBI and to the House, saying, “She [Clinton] has unique, first-hand knowledge no one else does.”
“She’s explained it over and over and over again, and I don't think her answer is going to change,” Kendall said. “The elephant in the room s politically, they want to take their deposition, and it’s simply not justified based on the evidence on the record.”
Kendall said the “public’s right to know is going to be vindicated” by the eventual release of all available emails. Kendall acknowledged there could be questions about the State Department’s “cluelessness or negligence of oversight,” adding, “I’m not arguing that people should be given . . .a gold medal for records management.”
Past releases of the emails suggest any disclosures could trickle out over months, if not years.
Clinton’s lawyers in 2014 turned over emails to the State Department that her lawyers had determined were work-related, for example, but it took until early this year for State reviewers to complete the release of 30,068 emails, a total of nine months after a federal judge ordered any publicly disclosable emails to be released under the federal Freedom of Information Act.
The State Department is even more bogged down now, drowning in more than 16,000 FOIA requests on a range of matters, government lawyers said last week. With more than 100 pending FOIA lawsuits on various issues in court, department lawyers recently asked for extensions until 2018 or longer to meet existing orders for document releases.
Several of Sullivan’s colleagues on the federal bench have grown impatient with the pace of reviews.
U.S. District Judge Rudolph Contreras last week called the department’s FOIA backlog a problem of its own making, having failed to meet pledges to ramp up personnel and actually cutting personnel since February. In another case about whether Clinton was involved in a decision affecting a contractor while secretary, U.S. District Judge Richard J. Leon, said he would not let the department “run out the clock” to avoid turning over long-sought documents by Election Day.
The 2013 case over records about Abedin’s employment was reopened after the March 2015 disclosure of Clinton’s personal server, and Sullivan this spring granted Judicial Watch’s request to question seven current and former top Clinton and department aides about the creation and use of the system.
Sullivan held off on hearing arguments on whether the group should be allowed to depose Clinton until the round of subordinates finished. The hearing Monday takes up the question of whether a deposition of Clinton is needed for the Judicial Watch case.