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

United States District Court

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.





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



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


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


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.


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 —


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 —


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


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.


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 —


MS. COTCA: — via email.


MS. COTCA: That may have been verbal. 9


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


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,, 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?


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.


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 —



(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 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 —


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


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.


MR. PEZZI: We don’t dispute that.


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 —


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


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.


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 —


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 —


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.


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.


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.)

* * * * * * * * * * • • •


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