Part 2. What were they thinking? State discovers Benghazi in Judicial Watch’s FOIA

What were they thinking is a series probing the human psyche. Psyche is the human mind, both conscious and unconscious, synonymous with soul, life, breath, ghost personality and spirit.

This is a transcript in an ongoing national security case in Washington.

https://www.judicialwatch.org/wp-content/uploads/2019/09/JW-v-State-Hearing-transcript-01242-1.pdf

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JUDICIAL WATCH, INC., Plaintiff,

U.S. DEPARTMENT OF STATE, Defendant.

CV No. l:14-cv-01242-RCL Washington, D.C. Thursday, August 22, 2019 2:00 p.m.

TRANSCRIPT OF STATUS CONFERENCE HELD BEFORE THE HONORABLE ROYCE C. LAMBERTH UNITED STATES DISTRICT JUDGE

APPEARANCES:

For the Plaintiff: Ramona R. Cotca, Esq. Paul J. Orfanedes, Esq. JUDICIAL WATCH, INC. 425 Third Street, SW Suite 800 Washington, DC 20024 (202) **Christopher Farrell, Corporate Designee

For the Defendant: Stephen M. Pezzi, Esq. Robert J. Prince, Esq. Elizabeth J. Shapiro, Esq. U.S. DEPARTMENT OF JUSTICE Civil Division Federal Programs Branch 1100 L Street, NW Washington, DC 2053 (202) ** Elizabeth Grosso, Department of State Michael Lieberman, Department of State

APPEARANCES CONTINUED:

For Intervenor Hillary Rodham Clinton: David E. Kendall, Esq. WILLIAMS & CONNOLLY LLP 725 12th Street, NW Washington, DC 20005 (202) **

For Non-Party Respondents Jacob Sullivan and Cheryl Mills: Brian L. Stekloff WILKINSON WALSH ESKOVITZ, PLLC 2001 M Street, NW 10th Floor Washington, DC 20036 (202) **

Court Reporter: Timothy R. Miller, RPR, CRR, NJ-CCR Official Court Reporter U.S. Courthouse, Room 6722 333 Constitution Avenue, NW Washington, DC 20001 (202) **

Proceedings recorded by machine shorthand; transcript produced by computer-aided transcription. 3

P R O C E E D I N G S

THE DEPUTY CLERK: Your Honor, we’re on the record with civil case 14-1242, Judicial Watch, Incorporated, v. Department of State. Counsel, if you could please approach the lectern; identify yourselves for the record.

MS. COTCA: Good afternoon, Your Honor. Ramona Cotca for Judicial Watch. Also at counsel 1 s table is Paul Orfanedes representing Judicial Watch and Christopher Farrell. He’s a corporate designee.

THE COURT: All right.

MR. PEZZI: Good afternoon, Your Honor. Stephen Pezzi from the Department of Justice on behalf of Defendant Department of State. With me at counsel’s table today are Robert Prince, also with the Department of Justice; Elizabeth Shapiro, Deputy Director of the Department of Justice; as well as Elizabeth Grosso and Michael Lieberman who are both attorney advisers with the State Department.

THE COURT: Okay.

MR. KENDALL: Good afternoon, Your Honor. May it please the Court. I’m David Kendall here for Intervenor Hillary Rodham Clinton.

THE COURT: Pleasure to have you, Mr. Kendall, as always.

MR. KENDALL: Thank you, sir. 4

MR. STEKLOFF: Good afternoon, Your Honor. Brian Stekloff from Wilkinson Walsh on behalf of Third Party Cheryl Mills.

THE COURT: Okay. Nice to have you. Okay. Let me start with Judicial Watch. If you’ll tell me where we are in your point of view.

MS. COTCA: Yes, Your Honor. Thank you. The posture at this point in the case, we’ve completed the discovery that the Court has ordered back in December of 2018 and then pursuant to the Court’s January 15, 2019, order. During that discovery, there are additional new facts that plaintiff has learned that give rise to additional discovery plaintiff deems is necessary in this case. In our status report that we filed with the Court, we identify some of the additional information that’s been learned. And if I skip over anything, I’d just let the Court know, please feel free to ask me to clarify. But some of the most pertinent facts that I just want to bring the Court’s attention to today are, one, in December of 2012, the White House Counsel’s Office was communicating with the State Department about a FOIA request from CREW with respect to Secretary Clinton’s emails. Following that, in June of 2013, IPS office which handles FOIA for the State Department begins an inquiry into Secretary Clinton’s emails. That was brought to the attention at — of — by John Hackett, who was deposed in this case, and that’s where we have a lot of the factual information that we learned. He’s no longer a State Department employee, but back in 2013 he was the Deputy Director of IPS. At the time fast-forward a year — he became the Director of IFS. So he had several roles during this time frame. 5 But in 2013, he saw the photograph that, I think, a lot of people know of Secretary Clinton holding the BlackBerry in the military plane and raised questions to him about the BlackBerry use — it was while she was Secretary of State on a military plane — and what that meant with respect to her email use at the State Department. As a result, certain things happened. One was, well, he alerted his boss, who was Sheryl Walter at the time, but that led to an inquiry by the records officer within IPS. Her name is Tasha Thian, who we did not know of before, and she led an inquiry in 2013 about Secretary Clinton’s email use. Just this week, we learned that actually, Ms. Thian had published a book called State Department Records & the Elections in which she details in about two chapters about Secretary — what she knew at the time. She was there when Secretary Clinton began her tenure at the State Department, and also, when she left the State Department, and she left — finally left the State 6 Department in June of 2014. And I just want to alert the Court — and we’re happy to supplement the record, if the Court wishes, with the chapters that are relevant. Obviously, this is a witness that had first fact -firsthand knowledge about the facts at issue. But just one quote on Page 89 of her book, it says, I had asked her office several times if she used personal email, and I was told she did not use her email for work. Later on, it says, I’m aware of at least six occasions where staff should have informed Mrs. Clinton of her records requirements. These include four records management training sessions; one meeting with her aide prior to her tenure; and the final one was when she was leaving the Department with the Departing Officials Procedures. And from the discovery through document production in this case as well as Mr. Hackett’s testimony, Ms. Thian was directly involved with Secretary Clinton’s office when they were departing with respect to their records management and — or retention prior to departing the State Department. In addition to Ms. Thian’s inquiry, during that summer, as Mr. Hackett described it, they were trying to figure out what — Secretary Clinton’s email use and what this meant for FOIA. In or around August of 2014, according to Mr. Hackett’s testimony, IFS issued a directive not to send any more “no records located” responses to FOIA 7 requests related to Secretary Clinton’s emails, and as Mr. Hackett described, it is, Well, it would be inappropriate if we don’t know what this email meant. In relation to that directive, Mr. Hackett identified Patrick Scholl within IFS, and he’s also listed as an individual who we would like to question specifically with respect to this directive. In December

THE COURT: Now, I take it — in your presentation, you said Scholl, in fact, did send out that directive to his staff or not?

MS. COTCA: No, that

THE COURT: Because at one point, I saw that Mr. Hackett, I think, said he didn’t know whether that was ever produced. He didn’t have a copy.

MS. COTCA: Correct.

THE COURT: So is there a copy or do we know that email was actually sent to the staff ordering them to do the “no records located” response?

MS. COTCA: We do not.

THE COURT: We don’t have it?

MS. COTCA: We do not have the record, but that is one of the —

THE COURT: Okay.

MS. COTCA: — document requests that is listed in 7 requests related to Secretary Clinton’s emails, and as Mr. Hackett described, it is, Well, it would be inappropriate if we don’t know what this email meant. In relation to that directive, Mr. Hackett identified Patrick Scholl within IFS, and he’s also listed as an individual who we would like to question specifically with respect to this directive. In December

THE COURT: Now, I take it — in your presentation, you said Scholl, in fact, did send out that directive to his staff or not?

MS. COTCA: No, that

THE COURT: Because at one point, I saw that Mr. Hackett, I think, said he didn’t know whether that was ever produced. He didn’t have a copy.

MS. COTCA: Correct.

THE COURT: So is there a copy or do we know that email was actually sent to the staff ordering them to do the “no records located” response?

MS. COTCA: We do not.

THE COURT: We don’t have it?

MS. COTCA: We do not have the record, but that is one of the —

THE COURT: Okay.

MS. COTCA: — document requests that is listed in 8 plaintiff’s —

THE COURT: Okay.

MS. COTCA: additional discovery.

THE COURT: To see if there was such an email sent —

MS. COTCA: Correct.

THE COURT: — to say, “Don’t do a no-records response”?

MS. COTCA: Correct. Correct.

THE COURT: That’s what Mr. Hackett testified to. I read that this morning —

MS. COTCA: Yes, he testified that —

THE COURT: — that he directed that that be done.

MS. COTCA: Correct.

THE COURT: Right.

MS. COTCA: Correct. Now, he didn’t recall –

THE COURT: He and Ms. Walter, both.

MS. COTCA: Yes, he and Ms. Walter. Now, from my recollection of Mr. Hackett’s testimony, Mr. Hackett didn’t recall if he had given the directive to Patrick Scholl in writing or not —

THE COURT: Right.

MS. COTCA: — via email.

THE COURT: Right.

MS. COTCA: That may have been verbal. 9

THE COURT: Right.

MS. COTCA: But his testimony is that there was a directive sent —

THE COURT: Right.

MS. COTCA: — from Patrick Scholl to IPS

THE COURT: But you don’t have one?

MS. COTCA: We do not have that —

THE COURT: All right.

MS. COTCA: — no. And

THE COURT: And you don’t know whether, in fact, that there were responses that did not follow that order?

MS. COTCA: No, we do not know that, as well. THE COURT: And did Judicial Watch receive a response that said, “No records”?

MS. COTCA: In other cases? Not in — well –

THE COURT: In this case.

MS. COTCA: In this case? No. 9

THE COURT: Because you just never got a response?

MS. COTCA: We never received a response until we filed the lawsuit. Correct.

THE COURT: Right. Right.

MS. COTCA: Correct. Then in — as this is going on, in December of 2013, again, in response to a different FOIA request that was submitted by Gawker Media — and this one – apparently 10 2013, there was actually a public release of Secretary Clinton’s email address, hdr22@clintonemail.com, and that request specifically asked for emails between Secretary Clinton at that email address and Sidney Blumenthal. Mr. Hackett recalled that this issue arose once again during this time frame in December/January of 2013 because, in response to that request, certain emails were located that identified her email address. He wasn’t clear on what exactly those email records are, and that is something that is another document request that we asked for, but and we provided the description from his — the excerpt from his testimony as to how Mr. Hackett described it. And it is noteworthy that, I believe, at that point, Gawker had still not received, until after it was publicized I don’t believe they received a response, but I’m not — actually, I’m not quite certain on that, but so after January of 2014, Judicial Watch’s FOIA request is submitted in July — or in May of 2014. We filed the lawsuit in July of 2014. At that time, what we’ve learned is, once more, there were a lot of discussions actually between IPS and the Office of Legal Adviser about Secretary Clinton’s emails as well as to this other 2012 CREW request concerning Secretary Clinton’s emails, and those discussions occurred with Mr. Hackett, per — according to Mr. Hackett’s testimony; also, Mr. Finney, who we did depose in this case, 11 but also the State Department attorney Jamie Bair, who we’ve also identified in — as part of our discovery. Now, he is an attorney at the State Department in the State Department opposes his testimony because he is an attorney, but — and points to the fact that we knew that he was the attorney at — assigned to this case to argue that we should have included him in the initial discovery; however, the fact that we did not include Mr. Bair in our initial discovery supports our position that we are not seeking attorney-client communications. What we’re seeking is his knowledge about State Department — about Secretary Clinton’s emails. So in other words, we’re not seeking to ask him, What was your discussions with, you know, State Department officials about, you know, how to litigate this case? But rather, What was your knowledge at the time that he was responding and the State Department was responding to our case with respect to Secretary Clinton’s emails in 2014? The evidence so far that we’ve collected through discovery strongly — I mean, well, I think, supports the fact that State Department officials and attorneys — IPS officials and attorneys knew at that point that the — that Secretary Clinton had used email for State Department work. And, in fact, I believe Mr. Hackett’s testimony — which is included in the excerpts we’ve provided — stated that as a result of the Gawker request back in December and January, they knew 12 that she had used it to some degree for her State Department business. So Mr. Bair, in the summer of 2014, according to Mr. Hackett’s testimony, he alerted Mr. Hackett about -well, initially, he was involved in the document production from State to the Benghazi Select Committee. As part of that document production in August — August 11th, I believe, or sometime in August — the State Department included emails from Secretary Clinton’s email account about — related to Benghazi, and Mr. Bair alerted Mr. Hackett that the State Department may receive press inquiries about Secretary Clinton’s email use. And, in fact, Mr. Hackett testified that he was asked to brief Public Affairs sometime in August or September of 2014 about Secretary Clinton’s email use and his — he didn’t want to do it, but the State Department did actually produce a copy during their 30(b) (6) deposition, an email that confirmed the request for the Public Affairs briefing which is also included as part of the supporting documents with the status report. All of the — so Mr. Bair’s knowledge about Secretary Clinton’s email use while they were responding and searching for plaintiff’s records in this case is paramount. Secretary Clinton was the head of the agency. We asked for records from the Secretary’s office relating to Benghazi and we asked for email records. It can’t be disputed that her email records were not relevant to the State Department’s search. So we, therefore, request Mr. Bair’s testimony, as well. In addition, also, through the deposition of Mr. Hackett, we’ve also identified Eric Stein. He is the current — so he actually holds the position that Mr. Hackett held back in 2014 and, as the State Department points out, we do know that Mr. — we did note that13 Mr. Stein held that role in 2016. They point to the supplemental production that the State Department made in this case; however, only at Mr. Hackett’s deposition is the first time we knew of Mr. Stein’s FBI 302 notes that also point to a discussion between Mr. Stein and an attorney unidentified attorney from the Office of Legal Adviser asking about Secretary Clinton’s emails in an unidentified PST file from a previous FOIA case. That’s the first time that we learned that those notes are based on the interview that Mr. Stein provided to the FBI and the reason that we’ve included Mr. Stein at this point in our supplemental request. These are — I would say, these are the four individuals — the way I would parse the additional depositions that Judicial Watch has asked for, these are the four individuals that are new per se, let’s say, based on information that we learned in the depositions. The other individuals are three individuals who we knew of, but we didn’t know their identities, who the Court permitted us to ask from the State Department by — through an interrogatory, and because their names are subject to protective order, I’ll just refer to them as officials in Mr. Pagliano’s 302 notes.

THE COURT: Right. 14

MS. COTCA: And they’ve since been identified, and our understanding is that they’re still at the State Department, and their testimony is relevant to — I mean, if — in Mr. Pagliano’s notes, he describes that either one or all three of them had raised concerns about federal records issues with respect to Secretary Clinton’s email use. Obviously, that goes to the State Department’s good faith or bad faith in this case. So therefore, we’re asking for their limited depositions. And then initially, when we submitted our proposed discovery proposal in December, we did say that we would come back to Secretary Clinton and Cheryl Mills. It is based on the evidence that we’ve — the additional facts that we found. We want — we believe it’s necessary to also take their depositions in this case. Ms. Mills, when we -we did depose Ms. Mills in the previous case before Judge Sullivan in this court; however, at that point, we didn’t have all of the record that we have at this point. We didn’t know about Mr. Pagliano’s FBI notes identifying stating that he spoke with Mr. Mills [sic] and relayed the concerns that were addressed to him about federal records retention issues and Secretary Clinton’s email. Obviously, that is paramount to plaintiff’s case and the reason for -part of the reason for requesting her deposition. 15 And then there are some additional interrogatories and requests for production of documents. I don’t know if the judge them — if — would you like me to go through all of

THE COURT: No, that’s all right.

MS. COTCA: — or do you have — okay. But that’s where we are. And I would just — I would say that there is a lot of information that we have discovered as a result of the discovery with respect to State Department’s actions in this case in 2014, but this additional information is necessary to complete and fill in the gaps that we need.

THE COURT: All right. Thank you. Mr. Pezzi?

MR. PEZZI: Good afternoon, Your Honor. Stephen Pezzi from the Department of Justice. Your Honor, I did not hear any argument from my friend on the other side today nor did I see it in her status report yesterday addressing the critical threshold question as to whether any additional discovery is 16 appropriate in this case at this time, gjven the extensive discovery that Your Honor has already permitted and that the parties have now completed, not to mention the discovery that Judicial Watch took in related litigation in front of Judge Sullivan. We think those threshold arguments are important and it is, of course, Judicial Watch 1 s burden to explain to Your Honor why there has been good cause to reopen discovery now that discovery has closed in this case.

THE COURT: Well, I didn’t close discovery. So your premise is wrong.

MR. PEZZI: Fair enough, Your Honor. Whether you want to call it closed or not, it is still —

THE COURT: I didn’t close it. I said I would have a status after they took this initial discovery, and that’s what I’m doing today. I didn’t close discovery.

MR. PEZZI: That’s right, Your Honor, but it is still Judicial Watch’s —

THE COURT: So they don’t need any good cause –

MR. PEZZI: Whether

THE COURT: — today. The good cause continues from whether or not State was acting in good faith, and I’ll tell you everything they’ve discovered in this period raises serious questions about what the hell the State Department’s doing here.

MR. PEZZI: Your Honor – 17

THE COURT: This no — I didn’t know until I read that last night and this morning about this not — the professionals saying you can’t respond saying “no records” because of what the Secretary was doing. It’s really shocking to think that you would come in here and argue to me that you could still make that settlement offer — which is what you’re, in effect, doing in your papers — when you have never told them about the emails for that period. So I really don’t even understand what you’re trying to argue to me today.

MR. PEZZI: Well, Your Honor, there’s a lot to unpack there, and there are some factual premises that, just for the record, the Government does not necessarily agree with in Your Honor’s

THE COURT: Okay. Tell me what you think the facts are.

MR. PEZZI: So with respect to the directive issued through Patrick Scholl, the —

THE COURT: Did it go out?

MR. PEZZI: So we have been working to determine whether such a directive was ever sent and — although, you know, it requires proving a negative, and so I’m not going to represent to you today that —

THE COURT: Well, it’s not a negative. You have testimony from Hackett that he ordered it.

MR. PEZZI: Right. Well, his testimony is a bit more equivocal than that. He thinks that he recalls such a directive. He wasn’t 18

THE COURT: That’s not what I read. I mean, I’ve had dozens of affidavits from that guy over the course of my career here. He was State Department’s primary guy. I got affidavits from him all the time. I know who he is.

MR. PEZZI: That’s right, and he was deposed in this case. We have looked for that directive. We have not found it. Obviously, were there to be additional discovery in this case and were Judicial Watch to serve that request, we would do additional searches to confirm it, but as of today —

THE COURT: So maybe, it was never done? Well, it should have been done, shouldn’t it?

MR. PEZZI: Well, I don’t think that’s right, Your Honor. I think —

THE COURT: Why? She could do this and State could rely on her doing it and pretending like these records never were in State’s custody?

MR. PEZZI: I —

THE COURT: I’ll tell you another thing I didn’t like in your brief. I’ll tell you right now upfront. You put in your brief the most preposterous thing, I thought, in your brief was the very idea that — let me read you the line. Competitive Enterprise Institute was a case of first impression and that some District Judge bought that and the Court of Appeals reversed it. Now, that wasn’t a case of 19 first impression at all. The first impression with me was a case I had involving Ron Brown and the travel records of whether or not, in the Commerce Department — and it was a Judicial Watch case — whether or not the Commerce Department was selling seats on trade missions, and I had a Deputy Under Secretary of Commerce who took a box of records home and then they gave a no-records response and, in the course of that, I found out he had taken the records home and they said they had no records. I sent the marshals over and they got the box at his house, and I ordered them — the marshals to seize the records, and then I ordered Commerce to process the records. That was the first case. So Competitive Enterprise is not the first case of somebody taking the records out of the agency and pretending like they didn’t have them and giving a no-records response like what State did here. It’s really a preposterous notion that Competitive Enterprise, in 2006, is the first one of these. It’s offensive to me that you would call that the first case of first impression in Competitive Enterprise. The Ron Brown situation — and what happened there when they finally got the records was, it turned out the Democratic National Commission — Committee had to get a certain level

of contributions before you could go on a trade mission with the Secretary. That practice stopped as a result of the FOIA case. So FOIA can be a very important process to government agencies and to those who are looking at what government agencies are doing. That was the first case that I know about, and it was one of mine.

MR. PEZZI: Your Honor, I think it’s important to be precise about the nature of the Government’s argument and the reason the Competitive Enterprise Institute citations in our — are in our brief. We are not arguing now, and we never argued in this case, that — the State Department never tried to rely on that argument in taking any particular action —

THE COURT: Well, you’re pretending like between that period when State knew about these documents and got them back in December of 2014 until sometime later that State could be arguing that they weren’t in State’s possession and State could be denying the FOIA requests to this plaintiff. That’s what you’re pretending about today in your papers —

MR. PEZZI: Well —

THE COURT: — you filed last night.

MR. PEZZI: Respectfully, Your Honor, the Government did argue in as late as 2016 to the D.C. Circuit that that would have been permissible. Now, that obviously

THE COURT: I can’t even believe you would make that argument.

MR. PEZZI: Well

THE COURT: That is a preposterous argument. 21

MR. PEZZI: I mean, even the D.C. Circuit’s opinion in CEI makes clear that the precedents that had been presented to it did not squarely resolve the case. Now, I’m not trying to convince Your Honor that that’s right or wrong. In fact, we all now know that it is wrong, but that does not — that’s a far cry from bad faith, Your Honor, that it might take a little bit longer than —

THE COURT: Well, that’s why I want to find out about the whole bad faith facts.

MR, PEZZI: Right. And none of the facts elicited in discovery, in the Government’s view through.

THE COURT: Well, that’s why discovery’s not

MR. PEZZI: Well —

THE COURT: Go ahead and make your argument.

MR. PEZZI: Look, I — we have our general arguments, but with respect to the specifics that my friend on the other side presented, first of all, I think it’s important, some of them on their face are not new facts at all. Many of them, in fact, are not new facts at all. I 22 mean, the most obvious example is one that Your Honor did not hear of in my friend on the other side’s presentation. They point to, for example, 2009 emails with General David Petraeus that they say were newly-uncovered documents that somehow bear on this question of the Secretary’s motivations in setting up her email server. Obviously, we also have a threshold legal argument. We don’t think that that is an appropriate subject of inquiry anymore, but even accepting the premise that it is I mean, there’s a — and we didn’t have time to address this in the papers, of course, because we filed at the same time, but — I mean, this is a — and if I may pass a document up to Your Honor and I have —

THE COURT: Sure.

MR. PEZZI:

(Brief pause.) a copy for — This is an October 20th, 2016, press release issued by Judicial Watch. The headline is, “Clinton Emails with Petraeus Reveal Her ‘BlackBerry Blues’; Clinton Tells Then-CENTCOM Commander to Use Her ‘Personal Email Address.”‘ Now, this is not a new fact that was learned in this case, and I’m not just saying this to, you know, score points at an argument. I think it’s really fundamental to the disagreement that we have with Judicial Watch. These issues have been exhaustively investigated, and these facts have been developed in Inspector General reports. 23 Another example — I mean, we talked about the three IT officials whose names are subject to the Privacy Act. If you look at Page 40 of the May 2016 Office of Inspector General report — which is one of several Inspector General reports investigating these issues — it discusses the same — not by name, of course, but it discusses the same sort of conversations that counsel is now telling Your Honor are some sort of newly-discovered facts that need to be addressed. It’s not just that they didn’t know the names before. They knew of the basic story here. Now, with respect to Mr. Hackett’s testimony and Mr. Bair’s knowledge — I mean, the Government concedes, and has conceded for quite some time, that there were some individuals, no doubt, within the State Department that had some awareness that Secretary Clinton was using her private email at least in some instances to conduct government business. That’s — and what led ultimately to a request being made to Secretary Clinton that she return any federal records in her possession. So the Government is not saying now, and has never said to this Court before, that nobody in the State Department had any idea that Secretary Clinton was using this email address at the time, but there was a big gap between the facts we all know now — which is that, you know, not only was she using email, but she was using it 24 routinely and systematically and she had a private server -and what — certainly, what most individuals involved with processing FOIA requests knew. I mean, even Mr. Hackett’s testimony — I mean, counsel referred to this photograph of Secretary Clinton using a BlackBerry. Mr. Hackett, in his deposition, ultimately said, quote, We did not know what that photograph meant or what even having an email — a private email address of hers meant back in 2013. That’s at Page 92 of Mr. Hackett’s deposition transcript. And so ultimately, this was a very — this was an unusual situation, to be sure, and the Government is not trying to persuade Your Honor otherwise, but the State Department requested the records. They were returned. When they were returned, they needed some time to figure out what they were; whether, in fact, there are agency records subject to FOIA in this box; and there needed to be a decision made as to whether, you know — whatever legal arguments might be available to the Government, are we going to rely on those arguments or are we instead, as a matter of prudence, going to search for, process all these documents and release them through FOIA? Obviously, as Your Honor knows, the Government decided of its own accord to take the latter path, and that’s why all of these documents have now been on the Internet for quite some time after an exhaustive effort by the State Department over a matter of years that occupied a lot of time in this courthouse that, of course, Your Honor is familiar with. 25 And so — I mean, allegations of bad faith are something that the Government takes extremely seriously, and I think it’s important that Your Honor’s aware of that. And we understand, you know, that there — that Your Honor has concerns with how these records were managed within the State Department over the years, but certainly — and on the Government’s view, there’s no need for any additional discovery on any of these subjects. And with respect — I mean, with respect to some of the specifics, in addition, I think it’s worth pointing out the Gawker email that, again, my friend on the other side refers to. I mean, that’s something — it’s a — on its face, it’s a 2015 article published on Gawker.com about a FOIA request submitted by Gawker about Hillary Clinton’s private email address. So I have a hard time seeing why that is some sort of new fact that justifies additional discovery just because one of the 11 deponents in this case, you know, had a vague recollection of some discussions about that. They’ve already had the opportunity to get, you know, access to these individuals, a much greater opportunity than a typical plaintiff would in a FOIA case, and I think most or all of the testimony that they’re now seeking is very likely to be extremely cumulative or, worse than that, it’s going to result in no additional information at all on most of the subjects that they claim to be interested in. 26 I also think it’s important to note that the subjects they claim to be interested in — again, we saw nothing in the status report and I heard nothing today about how any of this discovery is at all tethered to the case or controversy before Your Honor. Their complaint is a — has one count

THE COURT: Well, there is — there 1 s — one problem with that is, I think, if it’s bad faith, they’re entitled to attorneys’ fees, whether or not they ever got a document in this case. So I think it would really be relevant to attorneys’ fees. So I don’t think the case is moot in terms of your argument that it’s moot.

MR. PEZZI: And we’re not arguing that — I mean,

we haven’t filed a motion to dismiss —

THE COURT: Right.

MR. PEZZI: — for lack of subject matter jurisdiction —

THE COURT: Right.

MR. PEZZI: — for example. We’re not arguing that the case is moot and we don’t even dispute, actually, that Your Honor, of course, has jurisdiction to explore

whether, you know, a party in his courtroom acted in bad faith.

THE COURT: Right.

MR. PEZZI: We don’t dispute that.

THE COURT: Right.

MR. PEZZI: We think there’s no factual basis for a finding of bad faith and, frankly, Judicial Watch hasn’t even really tried to articulate one. 27 And I mean, with respect to attorneys’ fees, again, Judicial Watch has never raised attorneys’ fees, but we are — I mean, if and when the time comes in this case, of course, per usual, we can meet and confer with Judicial Watch and see what attorneys’ fees, if any, they think are appropriate and, in a way, that’s how we think this case should proceed at this point, similar to how the discovery in the Judge Sullivan case, 13-1363 — when that discovery completed, ultimately, the parties met and conferred and Judicial Watch requested some additional searches; the Government agreed to conduct additional searches that it didn’t believe were legally required, but in the interest of resolving that case, it conducted those additional searches; Judicial Watch was satisfied; and it dismissed the case. Now, here, they’ve taken a different path —

THE COURT: And were fees agreed upon, then?

MR. PEZZI: What’s that?

THE COURT: Were fees agreed upon, then, or -MR.

PEZZI: Yes, the parties reached a settlement 28 agreement that included a payment of attorneys’ fees.

THE COURT: So it all went away?

MR. PEZZI: So it all went away. And, look — I mean, maybe, we would be able to agree on fees in this case; maybe, we wouldn’t. If —

THE COURT: Right.

MR. PEZZI: — we disagreed

THE COURT: No, I understand.

MR. PEZZI: — we could brief that in front of Your Honor, but — I mean, I think I have — I have never even had the opportunity — I mean, I joined this litigation team in December of 2018, and I have never been able to discuss with counsel on the other side — certainly not in preparation for this hearing — as to what additional searches they believe are required that we haven’t done. And I mean, I would not be surprised — I don’t want to promise anything from the lectern, of course, but we might be willing to conduct additional searches even if we don’t believe they’re legally required and make exhaustive efforts beyond the exhaustive efforts we’ve already taken to locate any responsive agency records in this case. And the fact that counsel doesn’t even want to discuss that matter, I think, frankly, is telling, and I think what they’re really trying to do here is take discovery for discovery’s sake, and I don’t think that’s an appropriate use of the discovery process, and I don’t think it’s an appropriate use of Your Honor’s time. I mean, this F0IA request is actually quite narrow. I don’t — I mean, it’s been a long time since

we’ve even talked about what the F0IA request was, but there was nothing special about this F0IA request. I mean, there were literally hundreds of F0IA requests to the State Department about Benghazi and the Secretary’s emails, dozens of them in litigation in this courtroom. This one asked for talking points provided to Susan Rice, and so the Government believes that we have conducted an adequate search. Judicial Watch has had an extraordinary opportunity to kick the tires on that question. I mean, they deposed several of the, you know, career F0IA professionals who were part of those searches half a decade ago at this point; they sent interrogatories to the former Deputy National Security Adviser and the senior White House official who never even worked at the State Department; interrogatories to Ambassador Susan Rice; they deposed, in this case, the Deputy Chief of Staff to the Secretary of State, Jacob Sullivan, all about, you know, the talking points and the creation of the talking points. I mean, F0IA plaintiffs never get that sort of opportunity, and so I think to come back to Your Honor and say that they need additional discovery on, you know, the adequacy of the search, for 30

example, I don’t think it makes a whole lot of sense. It also doesn’t make sense in the context of — I mean, there’s been an intervening ruling from the D.C. Circuit on the question of whether or not there are additional steps that the Government could take to bring additional Clinton emails in outside from the four walls of the State Department, and that is — I mean, that case is captioned Judicial Watch v. Pompeo. It is the same parties, and that was a ruling issued against Judicial Watch and they, you know — they didn’t seek en bane rehearing; they did not petition for review at the Supreme Court. That matter is closed, and it is binding on Judicial Watch as a matter of collateral estoppel. And so if there’s nowhere else the Government could search for Clinton emails outside of the four walls of the State Department, I think discovery on, you know — a wide-ranging inquiry of that sort is inappropriate, but, again, if there are specific searches that they think we should have done, we’re happy to discuss it, and we might even be happy to do them, but that at least would be an inquiry tied to the, you know — the one claim in their complaint that’s before Your Honor.

THE COURT: Let me ask you one other question that is not raised by Judicial Watch but is raised by my admiration for Senator Grassley. At the hearing on my successor when I stepped down as Chief Judge, Judge Cooper was named by President Obama to my spot, and I accompanied him to his hearing before the Senate Judiciary Committee. And Senator Grassley, upon my being introduced to the 31

Committee, made some very nice comments about me and my career here, and so I would repay the Senator by saying some very nice things about my admiration for him. He released, on Friday, a report in which he had some very troubling information about a guy named Combetta who had been one of the contract employees on the Clinton emails, and he and the Senator who Chairs the Homeland Security Committee released in the Senate this report Friday, and the gist of it was that Cornbetta had said, I guess, that he had created a dummy email account with all of the Hillary Clinton emails in it in a different name, and the FBI had investigated that to see whether or not the Chinese had ever hacked into it. They have determined that the Chinese hadn’t, but that the FBI never told the State Department about that account and that the emails that were not given over to State could have been obtained from that account, but the FBI never told State about it. So it leaves out in the open whether there are these other emails that State could have obtained but nobody ever bothered to tell State about them. I don’t know the status of that and I’m sure you don’t either, but that did occur to me that

would be a problem for me as to whether an adequate examination of that circumstance occurred and, assuming that Combetta deleted them, as he said he did before he took the Fifth, I guess, whether or not the server that they were on or the — or whoever maintained the server, whether they can be reconstructed from — by that, I don’t know, and I don’t know if State knows, but if State was never told about it, obviously, State doesn’t know, and then that gets to the question of what — where you and I started of what obligations State might have if no one ever told them.

MR. PEZZI: Look, Your Honor, I don’t pretend to know all of the details of that story, but I can tell you, even if accepting the factual premise that all of those things happened in the exact way they were described; even accepting something even worse than that happened, the D.C. Circuit has already ruled against Judicial Watch on the precise question of whether there are additional steps that the Government can take to recover additional emails

THE COURT: Well, I don’t know about that. An unpublished opinion from the D.C. Circuit?

MR. PEZZI: It is an unpublished — well, it’s in the Federal Appendix, but it doesn’t matter for the purposes of this case because it’s between the same parties. So it

THE COURT: So it’s res judicata?

MR. PEZZI: It is — yeah, collateral estoppel, I think —

THE COURT: Collateral estoppel?

MR. PEZZI: — would be the term that applies in this instance. Whether you want to call it res judicata or collateral estoppel, it was a hotly disputed legal question in a case originally before Judge Boasberg where he made detailed factual findings. He dismissed the case as moot. It was actually reversed at one point by the D.C. Circuit and they sent it back to Judge Boasberg and said, you know, We need some additional inquiry here. There was additional presentations made in the District Court again, again, between the same parties; Judge Boasberg dismissed as moot again; and then the D.C. Circuit affirmed that finding, agreeing with Judge Boasberg that there were no additional steps that could be taken to return additional —

THE COURT: And what was the search for? 33

MR. PEZZI: And so that’s a case — it’s a Federal Records Act case. And I actually think it’s important to –

THE COURT: But it’s a different search.

MR. PEZZI: It’s a more exhaustive search than would be appropriate here, because the Federal Records Act — I mean, everything I said to you before about —

THE COURT: I understand. But it was for Benghazi records or not?

MR. PEZZI: No, it was for all Clinton emails, is my understanding —

THE COURT: All Clinton emails? 34

MR. PEZZI: Yeah. So I donlt want to get that precise detail wrong, but it was certainly broader than the request in this case and would be including of any of the Clinton emails that would be at issue in this case, and so it’s a Federal Records Act case where Judicial Watch argues that, you know, additional steps need to be taken. The Attorney General needs to initiate some enforcement action to return missing federal records, and that — I mean, that is an obligation that exists independent of FOIA, of course. So I mean, the CEI argument we talked about before is about FOIA, you know? Whether or not — excuse me — personal emails are agency records subject to FOIA, there’s no doubt that there was a Federal Records Act obligation and, you know, there was exhaustive testimony presented. There’s a declaration from E.W. Priestap, who was the Assistant Director for Counterintelligence at the FBI who supervised the Clinton email investigation — who, by the way, has also been subject to discovery in this case — saying that there’s no, you know — they the FBI moved heaven and earth to look for these Clinton emails. It was able to reconstruct some portion of the server, even some portions that had apparently been lost before the FBI’s exhaustive efforts, and when that investigation was over, it returned any — it returned those agency records to the State Department —

THE COURT: So he must have known about the Combetta thing, presumably.

MR. PEZZI: I assume that the FBI knew about that

and more, Your Honor, and — I mean, obviously, you know, the FBI investigation is a whole ‘nother story that only has tangential relevance to this FOIA case, but what does have relevance to this FOIA case is, to the extent Judicial Watch or Your Honor is concerned about the adequacy of our search, it would have to be the adequacy of the search for, you know, Susan Rice talking points about Benghazi, because the broader

THE COURT: Right.

MR. PEZZI: — question of whether there are additional Clinton emails out there that can be recovered somehow has already been resolved against Judicial Watch. And, again, I don’t think it matters whether that’s a precedential opinion or an unprecedential opinion, given that it’s between the same parties.

THE COURT: All right.

MR. PEZZI: And so — I mean, obviously, you know, the Government’s position remains that we think any additional discovery’s inappropriate, but certainly, I 36 think, the scope of the discovery would, at a minimum, need to be significantly narrowed to whatever, you know — to the extent there’s been new facts elicited that requires some follow-up. I mean, these document requests, for example. I mean, like I said, the Government has taken some steps but has not been able to locate any such directive as described by Mr. Hackett. If we were able to, you know, locate it, that would be something that, you know, I assume Judicial Watch and Your Honor might want to know about. I don’t think it’s necessary to resolve any question in this case, like I said, but that’s at least something where there was some deposition testimony that led to a new request. Most of their request is, frankly, not that. I mean, I talked about some of it already. Tasha Thian, you know, there’s a — she published a book in 2018 that my friend on the other side showed Your Honor. So somebody who’s writing a book in 2018 about these issues, I’m hard pressed to see why Judicial Watch should be able to come back to Your Honor and say that, you know, that’s some — somehow there’s a new fact that needs to be explored just because, again, some witnesses who have already been deposed at length said they talked to her about the things she put in her book in 2018. And with respect to Eric Stein, I think they essentially conceded that they knew who Eric Stein was, you know, and that he had served in, you know, relevant jobs in State Department before their prior round of discovery and Judicial Watch has already had, like I said, the extraordinary opportunity to depose many of his colleagues both above and below him in the chain of command. He currently holds the position that Mr. Hackett used to hold, but he did not hold that position at the relevant time, and so — I mean, I think his deposition is another example of overreach by Judicial Watch.

THE COURT: In your inquiries to try to find that memo, can you state whether or not that includes talking to this — what’s his name — Patrick Scholl?

MR. PEZZI: I wouldn’t want to — well, let me say this, Your Honor. We have taken steps such as we have been able to take in the short time between we saw — when we saw Judicial Watch’s first proposal and today’s hearing.

THE COURT: Right.

MR. PEZZI: We are taking the sort of steps that, I think, are prudent to find out, you know, for our own accord, if for no one else, whether such a directive was ever issued. I cannot represent to you definitively today whether it was or not, but that’s something that we’ve been working on. I will also tell you

THE COURT: But you’ve never seen it?

MR. PEZZI: I have never seen such a directive. Patrick Scholl, I think it’s important to note, he was the head of the office within IFS, Information Programs and Services, that handled requests that were not in litigation —

THE COURT: Right.

MR. PEZZI: — and so that is not to this request at all. I mean, this request went into litigatjon shortly after Judicial Watch first made the FOIA request. I think the FOIA request is May 13th, 2014. They sue in July 2014. And none of the, you know, searches that are described in the original Hackett declaration in this case took place in that time period. So the whole story of this FOIA request is when it was in litigation, and so there’s no reason to think Mr. Scholl played any meaningful role in any of that, and so in some ways I think we’re back where we 38

THE COURT: So what — who would have had the role here, then?

MR. PEZZI: So this was a — I guess, if Your Honor’s question is, who had the title of the head of the litigation shop —

THE COURT: Right.

MR. PEZZI: — off the top of my head, I have -some of these org chart questions —

THE COURT: Somebody under Hackett, though?

MR. PEZZI: Somebody under Hackett, yes, absolutely, and then — I mean, obviously, Judicial Watch has deposed Hackett and JudiciaJ Watch has deposed many people below Hackett, and so I — the — my — one of our overarching concerns, Your Honor, remains that, I think, unfortunately, it is clear that Judicial Watch doesn’t have a lot of interest in pursuing the merits of this FOIA case. And I think, you know, if we do 9 more depositions, you know, if they get, you know — we’re talking about deposition 20 through 28, depending if you count the Judge Sullivan discovery, I’m sure that in those, you know — if you get 7 hours with 9 more people, there will be some remarks that they will find interesting, but there’s no reason to think it’s going to fundamentally change our understanding of this subject that has already been 39 exhaustively explored by Judicial Watch and others. I mean, including literally FBI criminal investigators, some of the best in the world who have looked at these issues and published extensive written work product about it and so, you know, I think I — our concern is that if additional discovery is authorized, we’ll be back here again in 9 months and they’ll have 5 more names that they want to present to Your Honor, and I just don’t think that’s appropriate in a FOIA case.

THE COURT: All right.

MR. PEZZI: Unless Your Honor has any more Questions

THE COURT: Thank you very much. Did you want to say anything, Mr. Kendall, or

MR. KENDALL: A surprisingly few words, Your

THE COURT: That’s not surprising. You’re very good at that.

MR. KENDALL: We filed this motion to intervene

purely as a precautionary measure. Our interest is very limited. The record here is voluminous, as I need not tell the Court. I read the dueling status reports last night and, frankly, I’m not sure where we are. The one thing I’m confident is, at the end of this hearing, you will tell us where we are. But I would simply like to ask the Court that if and when the subject of further discovery from former Secretary Clinton becomes an issue, that we have adequate time to brief that. I do notice that in the plaintiff’s status report that they say one of the reasons they want to depose the former Secretary is about the preparation of Ambassador Rice 1 s talking points back in 2012; the advance dissemination or discussion of those talking points; the aftermath of Rice’s appearance; and the Department’s evolving understanding of the Benghazi attack. Now, Your Honor, I sat there for 11 hours before the congressional committee listening to the Secretary testify about Benghazi.

I think if — again, we need — if we’re going to address the issue of the propriety of additional discovery from -we just need to understand this record. So I would request, respectfully, that we get 30 days from today, not — I don’t know what kind of schedule the Court is going to propose, but if we can have 30 days, I think we’ll be prepared to master the record. I won’t have to tell my professional liability carrier —

THE COURT: I’ll make sure you have an adequate time to

MR. KENDALL: Thank you, Your Honor.

THE COURT: — if we’re going to get to that issue.

MR. KENDALL: I have nothing else.

THE COURT: Ms. Mills need to add anything, or do you want to be on the same kind of schedule?

MR. STEKLOFF: The same schedule, Your Honor.

THE COURT: All right.

MR. STEKLOFF: Thank you.

THE COURT: All right.

Okay. Judicial Watch gets the last word.

MS. COTCA; Thank you, Your Honor. I’d like to address a few points that were raised by opposing counsel here. One is, Judicial Watch’s interest in the records that it requested initially in this case, it is

THE COURT: Let me ask first, did you know anything about the Combetta issue? Maybe you already know all about that.

MS. COTCA: No, Your — well, no. When the report came out, there was another IG report that had come out on Friday. We were looking at some other things.

THE COURT; Oh.

MS. COTCA: That 1 s — when that

THE COURT: So you don’t —

MS. COTCA: When that had come out —

THE COURT: You don’t know the facts about that either?

MS. COTCA: Not in detail, no.

THE COURT: I always pay attention to what Senator Grassley said after he said all those nice things about me.

MS. COTCA: Well, that’s — he has good things to say. But with respect to Judicial Watch’s interest in this case, it is not at all correct to say — state that Judicial Watch has — does not have an interest in receiving the records it requested five years ago. Initially, the -I mean, as of — last night’s filing is the first time that the State Department has stated on the record that it will produce the records; that the State Department still has to

search from the records that were returned from Cheryl Mills, Huma and Huma Abedin and Jacob Sullivan. That issue had come up before when the summary judgment briefing was being done in 2015. The State Department had approached us that they would search those in exchange for no discovery. Judicial Watch did not take that proposal, but the fact that we have discovery ongoing does not stay or minimize or stop the obligation that FOIA imposes on the agency to conduct the search. We’re five years later, and we’re still waiting for the State Department to complete its search, and the burden is on the State Department. With respect to looking at other locations for -to be able to conduct an adequate search, the State Department has identified — and it’s part of Judicial Watch’s interrogatories — a list of, I think, 20 or so individuals who communicated as to how many times they communicated with Secretary Clinton. As of today, we don’t know — we don’t have any information that the State Department has searched those custodians’ emails for responsive records. And there’s — DOJ attorney has tried to make a parallel between this case and the case before Judge Sullivan. The case before Judge Sullivan was much more narrow. That sought records of — specifically related to Secretary Clinton and Huma Abedin. This case seeks records from the Secretary 1 s office and so, therefore, part of the discovery here is also to figure out where else within the State Department does Secretary Clinton’s records reside. 44 With respect to the fact that the case by Judicial Watch against, well, initially, Kerry — Secretary of State Kerry; then Secretary of State Pompeo, that’s a Federal Records Act case. That is different. That is an inquiry or a request that a — I’m sorry, I just lost my notes here that was a request — under the Federal Records Act, if the agency’s aware that records have been removed, the agency has to initiate an inquiry to the Attorney General to do an investigation as to how to — to recover those records. That is something — and that was with respect to Secretary Clinton. That is completely different. There are different elements. I mean, that’s a whole different case as opposed to the FOIA case that we have in this case. So we don’t think it’s binding. With respect to the email that the State Department had just handed to the Court, the reason we included that, that’s an example of why Judicial Watch is asking to question Secretary Clinton directly about her emails. It’s not so much about when it learned but with respect to — and we — the plaintiff — the reason we didn’t request Secretary Clinton’s deposition or Cheryl Mills’s deposition is because we wanted to avoid – we 45 wanted to show discretion and avoid duplication of discovery. That’s the reason we waited. And now, the State Department perhaps wants to punish us for that, but that -I just wanted to point the Court that that’s just an example of why we need her deposition. Oh, one other point that the State Department’s attorney had made. With respect to State Department’s bad faith in this case — or conduct in this case, the record is clear I mean, State Department received Secretary Clinton’s emails, 30,000 of them, on December 5th. In December, State Department was attempting to settle with Plaintiff Judicial Watch in this case, and that meant to dismiss this case without any revelation or any discussion that there’s — there are 30,000 emails. There are 12 Banker Boxes, if they hadn’t yet counted how many emails were in there, but there were 12 Banker Boxes of Secretary Clinton’s emails that the State Department did not disclose to Judicial Watch at the time. (Brief pause.) I think that’s all I have -THE

COURT: Okay.

MS. COTCA: — unless the Court has any questions.

THE COURT: No.

MR. PEZZI: Briefly, Your Honor?

THE COURT: All right. I have to give her the last word, but you can go ahead.

MR. PEZZI: I’m sorry, Your Honor. I’ll be very brief. There’s a lot I could respond to there. There’s just only one thing that I think is very important that the Government respond to, because I think it was left inaccurately stated at the prior hearing, and I want to be sure it’s absolutely clear about this.

On December 5th, 12 Bankers Boxes of Secretary Clinton’s records were returned to the State Department, but the idea that somehow settlement negotiations in this case were designed to — I mean, I guess the inference is that somehow, there was an attempt to scuttle scrutiny of the Clinton email issue by settling this case. We were in the process of responding to Judicial Watch’s request for a search declaration. It — this is at a time in which there has been no factual review of the boxes yet, let alone any determination that they’re agency records. And once those determinations had been made in January and February — and this is all in the Hackett testimony, among others — then we notified Judicial Watch and the Court that additional searches needed to be conducted. I mean, there were — as Your Honor knows, there were hundreds of FOIA requests; dozens of FOIA cases in litigation on these subjects. So unless we were trying to settle them all, the idea that there was an attempt to settle this case in bad faith, I 47 think, is fantasy, and there has been certainly no evidence in the record to support that, and I am confident there will never be any evidence in the record to support that, and I just think it’s important to make that clear for the record.

THE COURT: All right. I’m going to take a short recess and decide the scheduling issues.

THE DEPUTY CLERK: All rise. This Court will now stand in a brief recess.

(Brief recess taken.)

THE COURT: All right. First, let me clarify the Government’s misunderstanding. We’re not reopening discovery here. Discovery never closed. Back in January, I said, quote, The Government will — the Court will hold a post-discovery hearing to ascertain the adequacy of State’s searches; to determine if Judicial Watch needs to depose additional witnesses, including Hillary Clinton or her former Chief of Staff, Cheryl Mills; and to schedule dispositive motions, unquote. So June 19th was a checkpoint, not a finish line. And whether Judicial Watch previously knew about some of the other individuals it now wants to depose is beside the point. They tailored their initial discovery request to the facts and questions then before the Court. Now we know more, but we have even more questions than answers. So I won’t hold it against Judicial Watch for 48 expanding their initial discovery request now. Remember what got us started down this path in the first place. In late 2014 and early 2015, at least some State Department officials knew Secretary Clinton’s emails were missing; they knew Judicial Watch didn’t know that; they knew the Court didn’t know that, but the Department pressed forward trying to settle this case. So I authorized discovery into whether these settlement efforts amounted to bad faith. Now, the Government says, quote, There is simply no factual basis to justify any further discovery on that subject, unquote, but Judicial Watch’s most recent submission lays out the following: It appears that in the middle of 2013, State’s Office of Information and Program Services launched an inquiry into Clinton’s email practices. It appears that in August 2013, that office directed FOIA responders to stop issuing, quote, No record located, unquote, responses to FOIA requests for Clinton’s emails. It appears that by the summer of 2014, State knew a large volume of Clinton’s emails had never been searched, potentially violating FOIA and record management obligations. It turns out State had a standing meeting every Wednesday afternoon during the summer of 2014 to 49 discuss Clinton-related FOIA inquiries. Attendees included Secretary Kerry’s Chief of Staff; his Deputy Chief of Staff; the Deputy Secretary for Management and Resources; the Assistant Secretary for Legislative Affairs; several attorneys; and Patrick Kennedy, the Under Secretary for Management. That’s every Wednesday afternoon. It appears that in August 2014, State began planning for media investigations into Clinton’s emails. It appears that in November 2014, State told Judicial Watch it performed a legally adequate search and tried to settle. In fact, I think, in my original opinion on authorizing discovery, I noted that State had given a draft Vaughn index to Judicial Watch at that time. I don’t think I have ever seen that, but I think it was given to I think, in my opinion, I said that it had been given to Judicial Watch. Indeed, State spent the next three months from November 2014 trying to make this case disappear. They kept doing it even after they came into the possession of Clinton’s emails. Judicial Watch wants to follow up with the State attorney assigned to this FOIA request to participate in settlement discussions and negotiations. That seems reasonable to me. State wants to ask the Department official responsible for overseeing FOIA requests more about why he directed his office to stop using “no record located” responses to FOIA requests relating to Clinton’s emails if that, in fact, is what happened. I’m curious, too. They want to ask the current Department FOIA overseer more about what went on in those weekly 2014 meetings. I look forward to hearing what he says. They want to ask the Justice Department attorney who led the settlement negotiations to divulge when he learned Clinton’s emails were missing. He must answer. 50 Another reason we had this initial discovery was to see if Secretary Clinton intentionally attempted to evade FOIA by using a private email. When Judicial Watch deposed the Deputy Director who oversaw State’s FOIA responses, he recalled an instance when in — his office found an email from Clinton’s private account and the Public Affairs team said, Remember, you’re not supposed to use that email. How can you spin that? I agree with Judicial Watch that it’s worth deposing the State Department records officer who personally reviewed archiving procedures with Secretary Clinton and her departing staff to see what they discussed. I also think Judicial Watch is justified to seek more information about how Secretary Clinton ultimately determined which emails were public records and which were private. The final reason I authorized discovery was to determine whether State adequately searched for records responsive to Judicial Watch’s FOIA request. Now the Government seeks to duck behind an unpublished D.C. Circuit opinion from 2018 holding the Government has already taken every reasonable action under the Federal Records Act to retrieve Clinton’s 30,000 missing emails and no imaginable enforcement action could recover any more. 51 But just last week, the Senate’s — Senate Finance and Homeland Security Committees released documents revealing Clinton IT aide Paul Combetta copied all but four of the missing emails to a Gmail account that does not appear to have ever been reconstructed and searched. The Court thinks Judicial Watch ought to shake this tree. And the Court agrees with Judicial Watch that it should talk to three never-before-deposed State officials who raised concerns about Clinton’s private email use all the way back to 2009. There is no FOIA exemption for political expedience, nor is there one for bureaucratic incompetence. The Government also tries to say this Court [sic] is — no longer — or no longer presents a live controversy. This is wrong. Judicial Watch can still obtain fees if they prove agency bad faith. I’ll close with this. When I authorized discovery 52 back in December, I described my goal: to rule out egregious government misconduct and vindicate the public’s faith in the State and Justice Departments. That’s still my goal today. This isn’t a case I relish, but it’s the case before me now, and it’s a case of the government’s making. Tne Court authorizes Judicial Watch to take the additional discovery described in its status report, except for deposing Secretary Clinton and her Chief of Staff, Cheryl Mills. I will give their attorneys 30 days to file any additional opposition to their depositions and 10 days thereafter for Judicial Watch to file any reply, and I’ll issue a separate ruling on that. Otherwise, the discovery should go forward and all of it should be completed by December 13th. A status will be held on December 19th at 10:00 a.m. to set a further schedule in this case. With that, the Court will be in recess.

MR. PEZZI: Your Honor –

THE DEPUTY CLERK: This Court is now adjourned. You may be dismissed. (Proceedings concluded at 3:25 p.m.)

* * * * * * * * * * • • •

CERTIFICATE OF OFFICIAL COURT REPORTER

I, TIMOTHY R. MILLER, RPR, CRR, NJ-CCR, do hereby certify that the above and foregoing constitutes a true and accurate transcript of my stenographic notes and is a full, true and complete transcript of the proceedings to the best of my ability, dated this 30th day of August 2019.

53/s/Timothy R. Miller, RPR, CRR, NJ-CCR Official Court Reporter United States Courthouse ROOlT\ 6722 333 Constitution Avenue, NW Washington, DC 20001

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Part 2. What were they thinking? State discovers Benghazi in Judicial Watch’s FOIA

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