A three-judge appeals court panel heard arguments this week from Hillary Clinton’s lawyer and Judicial Watch as the former secretary of state seeks to avoid a deposition about her private email server and the Benghazi attack talking points.
Judicial Watch, a conservative watchdog group, argued Tuesday that the depositions of Clinton and Clinton’s former chief of staff, Cheryl Mills, ordered by a D.C. district court judge was necessary to understand whether Clinton attempted to avoid the Freedom of Information Act when she improperly used a private server to conduct her State Department business and whether the agency adequately searched for all her emails.
“It is certainly within the authority of the district court to hear from the agency head herself about whether there was intent,” said Judicial Watch attorney Ramona Cotca.
Clinton wanted to “short-circuit this process by using the most potent weapon in the judicial arsenal to prevent the district court from ever being able to reach a determination of whether there was ever an adequate search,” Cotca said.
The FBI investigated Clinton’s use of the server, hosted in the basement of her home in Chappaqua, New York, while she was secretary of state from 2009 to 2013. Although former FBI Director James Comey found Clinton was “extremely careless” in handling classified emails, no criminal charges were recommended against anyone following the bureau’s “Midyear Exam” investigation. Clinton deleted 33,000 supposedly non-work-related emails.
“Why is it that four years after the FBI closed its investigation that there are still additional Clinton emails that are being produced. Why were they not searched or produced or located earlier?” Cotca asked, later adding, “Even today, the State Department does not know what is the universe of Clinton emails from the State Department — that is the significant issue here.”
The Judicial Watch lawyer said deposing Clinton would help determine if she had tried to “thwart FOIA.”
Clinton’s legal team asked the U.S. Court of Appeals for the District of Columbia Circuit to issue a writ of mandamus, a corrective order which would instruct the lower court to change its ruling ordering Clinton and Mills to be deposed. U.S. District Court Judge Royce Lamberth said in March, “It is time to hear directly from Secretary Clinton.”
“We intervened in the case — Secretary Clinton did — when it became clear that her deposition might be an issue,” said David Kendall, Clinton’s attorney, who was also appearing for Mills.
Two of the three judges on the panel — Obama appointee Nina Pillard and George W. Bush appointee Thomas Griffith — stressed that issuing a writ of mandamus would be an extreme move. Pillard also claimed that Judicial Watch’s concern about a “leaky vessel” during the State Department’s search for Clinton’s emails appeared “unfounded.”
Judge Robert Wilkins, another Obama appointee on the panel, asked: “Why wouldn’t it be relevant to depose Secretary Clinton or Ms. Mills to clarify who may have corresponded with either of them or in general about the Benghazi talking points?”
Kendall contended that the only relevant question was: “Are there any more documents to produce?”
The Clinton lawyer claimed that “the real purpose” of the depositions “is harassment.”
A State Department review of email practices of dozens of former agency officials and aides to Clinton found “some instances” of classified information being “inappropriately introduced into an unclassified system.” But investigators uncovered “no persuasive evidence of systematic, deliberate mishandling of classified information.”
Mark Freeman, the Justice Department attorney representing the State Department, said the Trump administration didn’t support Clinton’s petition for mandamus.
“The State Department’s approach to all of these [Clinton] cases from the beginning has just been to get through them — to respond to the FOIA requests, to push through any district court litigation, and to bring all these cases, and indeed the entire chapter, to a close,” Freeman said, adding, “We have not asked this court to issue the extraordinary remedy of mandamus, and we have not supported the petition at issue here.”
The virtual hearing stretched over an hour and a half. The appeals court will likely issue an opinion on whether they will be granting Clinton’s request to avoid the deposition in the next few weeks.
Judicial Watch also wants to question Clinton and Mills about the talking points for former United Nations Ambassador Susan Rice’s appearances on television shows following the terrorist attack on the U.S. Consulate in Benghazi. Members of Ansar al Sharia launched a coordinated assault on Sept. 11, 2012, killing U.S. Ambassador to Libya Christopher Stevens, foreign service officer Sean Smith, and CIA contractors Tyrone Woods and Glen Doherty. Clinton, Rice, and others incorrectly blamed the attack on a YouTube video.
Some of the Tuesday arguments were reminiscent of the debate over the Justice Department’s move to drop charges against retired Lt. Gen. Michael Flynn. Instead of immediately agreeing with that decision, D.C. District Court Judge Emmett Sullivan appointed an outside amicus, after which the Flynn legal team pursued a writ of mandamus with the D.C. appeals court in an effort to force Sullivan to allow the case to be dismissed. DOJ lawyers weighed in in favor of mandamus in that case.
Cheryl Mills’s attorney, Beth Wilkinson, is representing Sullivan in that case. Wilkins is on the three-member panel that will decide whether to grant mandamus.