The FBI said Tuesday that it will turn over to the State Department thousands of work-related emails recovered in the investigation into Hillary Clinton’s use of a personal email server while secretary that the State Department said it then will review for possible public release.
The disclosures by the FBI and State on Tuesday came as Clinton’s lawyers opposed a request in a civil lawsuit to question her under oath about her email setup, seeking to quell any lingering controversy after the FBI and Justice Department last week closed out a criminal probe without charges into her handling of classified materials. The federal filings came in a flurry of responses in an ongoing lawsuit over a public records request by the conservative legal group Judicial Watch.
Early Tuesday, the State Department disclosed in court that it asked for the return of emails in a letter Friday to the FBI. Later in the day, the FBI said it would cooperate.
“In accordance with our policies and procedures, the FBI will be providing this information to your Department for review and determination of record status pursuant to the Federal Records Act and subsequent [Freedom of Information Act] processing as appropriate,” FBI General Counsel James A. Baker wrote in a letter dated Tuesday and filed in federal court in Washington.
Public disclosure of the emails could help resolve the case by Judicial Watch and dozens of other pending public records lawsuits. Depending on what the records contain and how long the review process takes, however, the State Department’s request for records also could prolong legal wrangling that the presumptive Democratic presidential nominee has tried to put behind her or could push the resolution until after the November election.
“If State obtains additional State Department records, it intends to search them for records” that would respond to requests from Judicial Watch, Justice Department senior trial counsel Caroline Lewis Wolverton wrote in a court filing.
Attorneys for Clinton appeared to oppose the effort, saying in court files that her email account was private and “has never been the property of or possessed by the State Department.”
It was not immediately clear whether Clinton could block the handover or release of records, or when such steps might take place. An FBI spokesman did not immediately respond to a request for comment. Justice Department spokeswoman Nicole A. Navas declined comment beyond its filings in the pending Judicial Watch case.
The case was brought by Judicial Watch in 2013 and seeks records about the employment arrangement of Clinton aide Huma Abedin. Judicial Watch has questioned whether the private email server thwarted public laws covering the handling of government records.
U.S. District Judge Emmet G. Sullivan of Washington this spring permitted Judicial Watch to depose seven current and former Clinton and State Department aides about the email setup. Sullivan put off deciding whether Judicial Watch could question Clinton but said the group could come back in later with that request.
After the closeout of the FBI and Justice Department probe July 6, Judicial Watch asked to depose Clinton, along with Clarence Finney, a State Department official responsible for managing records and FOIA responses, and John Bentel, formerly in charge of its information technology unit.
Sullivan is set to hear oral arguments over the three deposition requests Monday.
In asking to depose Clinton, Judicial Watch noted FBI Director James B. Comey said FBI investigators had recovered several thousand work-related emails that were not among the 30,000 Clinton’s lawyers returned to the State Department in 2014. The newly identified emails included some that were deleted but recovered from devices, and others archived in government accounts of people with whom she corresponded.
Judicial Watch said the FBI finding raised questions about Clinton’s statement in an Aug. 8, 2015, affidavit that she said her lawyers had handed back all potential federal records.
Attorneys for Clinton and Abedin reviewed records after the two left government, sorting which emails were personal and which government-related that needed to be returned.
In a statement Tuesday, Judicial Watch President Tom Fitton called Clinton’s assertion of a “claim of right” over her recovered emails “significant and disturbing.” Fitton noted that the government itself stated that Clinton’s practices were not an “appropriate method of preserving federal records or making them available for searches under FOIA.”
In opposing the Clinton deposition request, her personal lawyer, David E. Kendall, wrote in a court file Tuesday that such a request was “futile,” because if there were additional records in the case, the FBI, not Clinton, now possesses them.
In his first public response to the closed investigation, Kendall wrote, “the FBI concluded after its year-long investigation that Secretary Clinton did not intend to conceal records from the public.” The record “makes clear that Secretary Clinton has no personal knowledge to provide,” he added.
Attorneys for the government also opposed additional depositions.
However, they argued the review and release of potential government records recovered by the FBI could resolve the lawsuits filed or re-opened since the March 2015 disclosure that Clinton exclusively used a personal server for government business, whose emails were never searched in response to FOIA requests.
Lawyers for the Justice and State departments said neither the lawsuit, the FBI, the department inspector general nor a House Benghazi committee “discovered any evidence of an intent to thwart FOIA.”
Justice Department senior trial counsel Caroline Lewis Wolverton said in court files that the numerous public investigations and the responses in lawsuits have answered the questions posed by Judicial Watch, but the group “just does not like” the answers it has gotten. The “dissatisfaction with the record that it has been able to create is not a valid reason to extend the limited discovery the Court authorized.”
In his statement before the FBI recommended closing the email investigation, Comey said the FBI “found no evidence that any of the additional work-related emails were intentionally deleted in an effort to conceal them.”
Comey said it was “highly likely” Clinton’s lawyers missed some work-related emails because they relied on header information and search terms, rather than a line-by-line reading.
It was also likely, he said, that other work-related emails “are now gone” because of how the lawyers cleaned their devices after finishing the job.
However, Comey concluded, ”We believe our investigation has been sufficient to give us reasonable confidence there was no intentional misconduct in connection with that sorting effort.”