A federal judge has added fresh fuel to the incendiary controversy over Hillary Clinton’s email, asserting during a hearing Thursday that she violated government policy by storing official messages on a private server when she worked as secretary of state.

“We wouldn’t be here today if this employee had followed government policy,” said U.S. District Judge Emmet Sullivan, apparently referring to Clinton, during a hearing on one of the many Freedom of Information Act lawsuits seeking access to her records as secretary of state.


Sullivan’s said Clinton’s actions had complicated the State Department’s ability to respond to requests for records on various topics. He also ordered the State Department to contact the FBI to determine whether the private server Clinton used, which Clinton turned over to that law enforcement agency earlier this month, contains official records possibly responsive to the FOIA suit.

After Justice Department lawyer Peter Wechsler argued that the open records law normally doesn’t allow for searches of government officials’ private accounts, the judge said he viewed it as an unusual situation because “there was a violation of government policy.”

“We’re not talking about a search of anyone’s random email,” Sullivan added.

The judge’s comments come at an awkward time for Clinton, the front-runner for the Democratic presidential nomination, whose campaign has just embarked on an aggressive effort to quell suggestions that she did anything wrong in using a private server. After classified materials were found in a cache of printed emails Clinton turned over to the State Department, her campaign has argued that the government has a dysfunctional system for classifying records.

Clinton has maintained that her use of a private email account during her four years as secretary of state was legal and that the State Department’s policy at the time did not prohibit use of a personal account for official business.

“What I did was legally permitted,” Clinton said during a campaign stop in Las Vegas Tuesday.

Asked about the judge’s remarks, Clinton campaign spokesman Brian Fallon said there was nothing improper about Clinton’s email arrangement.

”Hillary Clinton’s use of a personal email account was consistent with the practice of other secretaries of state, and permissible under the department’s policy at the time,” Fallon said.

During a hearing that lasted more than an hour in federal court in Washington, Sullivan pressed for answers about whether more copies of official government records from Clinton’s tenure may exist, either in a server or thumb drives turned over to the FBI or in back-up servers maintained for Clinton by a Denver technology firm.

In the FOIA suit Sullivan is handling, the conservative group Judicial Watch is seeking records about the employment arrangements of longtime Clinton aide Huma Abedin, who served Clinton’s deputy chief of staff at the State Department but later moved to a part-time position while also doing private consulting work.

Clinton is not a party to the suit, so her lawyers have not formally addressed in court why they believe her actions were proper. At the judge’s request, she did submit a declaration saying she has directed that all her work-related emails on the private account be turned over to the State Department and that she believes that happened.

Judicial Watch filed its suit in 2013 and got a handful of records last year before agreeing to close the case. The group moved to reopen the litigation earlier this year after The New York Times revealed that Clinton exclusively used a personal email account as secretary and had returned about 55,000 pages of the emails to her former agency at its request.

Wechsler said the agency has now found about 200 pages of records in its official systems responsive to the conservative group’s request about Abedin. There could be more pages in emails various Clinton aides have returned or are in the process of returning to the department, he added.

The judge expressed irritation Wednesday when Wechsler said he did not know whether the FBI, a Justice Department agency — was actually in possession of Clinton’s server or thumb drives on which her attorney stored copies of her emails.

“You’re a Justice Department attorney? …. You can’t tell me?” the judge said.

Wechsler said the FBI “reportedly” was in possession of the server, but he said the State Department knew that only because Kendall told them so.

“I need to get an answer,” the judge said. “We’re tiptoeing on the head of a pin because there’s only one government.”

Wechsler expressed concern that reaching out to the FBI might interfere in its investigation, but the judge said simply asking for any responsive records wouldn’t do that. He ultimately ordered the State Department to contact the FBI to see whether any records responsive to the FOIA lawsuit may exist on the server or thumb drives.

Sullivan, who was appointed by President Bill Clinton, has clashed sharply with government lawyers in several high-profile cases in recent years: over prosecutorial misconduct in the prosecution of Sen. Ted Stevens (R-Alaska) and in another Judicial Watch case seeking Internal Revenue Service records relating to former manager Lois Lerner.

At a hearing in the Lerner case last month, Sullivan called the government’s stance “nonsensical” and threatened to hold IRS Commissioner John Koskinen in contempt if the agency did not comply with his orders.

During Thursday’s hearing in the State Department case, Sullivan never said precisely how he believed Hillary Clinton violated government policy. But he repeatedly referred to the department’s obligation to preserve records under the Federal Records Act of 1950.

At one point, the judge said he wanted the State Department to ask Clinton whether any third parties — such as technology companies — might have copies of official records from her tenure. However, the written order Sullivan issued after the hearing made no mention of that.

If there was one bright spot for Clinton’s team at the court session, it was that Sullivan seemed eager to resolve the issue quickly. At one point, he asked state to find out from the FBI how long its investigation would take.

The key legal question in the case at this point is the degree to which a FOIA lawsuit can be used to seek records that aren’t in a federal agency’s core system but on a personal email account or personal server.

Wechsler pointed to a 1980 Supreme Court case involving former Secretary of State Henry Kissinger’s papers, which he donated to the Library of Congress under a stipulation that they not be opened without his permission until five years after his death. The high court ruled that a FOIA lawsuit wasn’t the right mechanism to try to force those records back into the State Department’s hands.

“FOIA is not used to resolve complaints of an agency employee’s misuse of personal email,” Wechsler said.

However, Judicial Watch lawyer Michael Bekesha argued that Clinton’s use of the personal account and server throughout her tenure, her lack of any other account and the State Department’s apparent authorization or acquiescence in that arrangement effectively converted the account and the server into government records that could be sought under FOIA, no matter where they wound up.

“This isn’t a personal email account,” Bekesha insisted. “The State Department may not have had physical possession of that server, but they had custody and control of these devices, that server.”

Bekesha said it was possible records kept off-site or on a private server by a “rogue employee” might not be accessible under FOIA, but he noted reports that State Department information technology specialists were involved in maintaining the server. He compared the situation to one where an agency hires a contractor to store records.

Wechsler declared that comparison “preposterous.”

The State Department has repeatedly rebuffed the media’s questions about whether anyone in the agency’s computer support or security offices was aware of or approved Clinton’s use of the personal server.

Bekesha suggested that if there was some ambiguity about whether Clinton’s email arrangement was officially sanctioned or approved, the agency’s top management official, Undersecretary of State for Management Patrick Kennedy, could resolve it.

“Let’s ask Patrick Kennedy. … Let’s get him to discuss under oath what the arrangement was,” the Judicial Watch lawyer said.

Sullivan didn’t rule out that possibility, but asked Wechsler to hold off on requesting that kind of inquiry until state opens “a dialogue” with the FBI. He ordered state to report back within a month on what records if any it is able to get from the FBI.