A new focus emerged Tuesday in the sprawling litigation over Hillary Clinton’s use of a private email server: the State Department official who may have authorized the private setup Clinton used for most of her four years as secretary of state.

A conservative watchdog group pressed a federal judge to order Undersecretary for Management Patrick Kennedy to appear in court to explain who greenlighted Clinton’s private server and who kept it running.


“He would be able to easily answer ... did she have the authorization to use Clintonemail.com?” Judicial Watch attorney Michael Bekesha told U.S. District Court Judge Emmet Sullivan. “Mrs. Clinton either was approved or authorized to use this system of records or she was a rogue employee.”

The hearing Tuesday was the first prolonged courtroom discussion about whether Clinton did or did not have official approval for her email system and the potential consequences if she did.

Clinton and the State Department have repeatedly declined to respond to press questions about whether the email arrangement was approved by management, record-keeping or security personnel at State. Clinton has said the practice was "permitted" under State Department rules, but she has not publicly detailed whether officials there helped set it up or maintain it.

In what amounts to a mixed blessing for Clinton’s presidential bid, Sullivan ordered up legal filings in the case that could extend the dispute into February of next year. If he decides to allow Kennedy's testimony, it could well come in the heart of the Democratic primary season. It’s also possible Kennedy could be asked or required to testify in one or more of the nearly 40 FOIA lawsuits pending in front of 17 different federal judges in Washington.

Kennedy, a 42-year veteran of the State Department known for his mastery of the agency’s bureaucracy, has played a pivotal but also mysterious role in the Clinton email saga. He served as State’s point person for the initial written request that Clinton return copies of her work-related emails and has since exchanged a series of letters with Clinton and former aides about their records.

Just Tuesday, the government released another letter from Kennedy asking Clinton's attorney whether Clinton has any official records from a two-month period at the outset of her service as secretary. Clinton’s office said earlier this year that she did not begin using her Clintonemail.com account until mid-March 2009, but State recently obtained an email exchange that took place early in her tenure — and in part on her Clintonemail.com account — between Clinton and Gen. David Petraeus.

“I ask you to confirm that … former Secretary Clinton has provided the Department with all federal records in her possession, regardless of their format or the domain on which they were stored or created,” Kennedy wrote to Clinton attorney David Kendall on Friday. “To the extent her emails might be found on any internet service and email providers, we encourage you to contact them.”

The exchange about Kennedy came at the second of two back-to-back hearings on Freedom of Information Act lawsuits seeking Clinton-related records, with Bekesha arguing that Kennedy’s testimony was crucial to determining whether Clinton’s email server should be considered a government records system or a private system that happened to be used by a government official.

“We believe this would be the most pressing issue,” Bekesha said.

Bekesha said Kennedy should be brought to the courtroom to answer questions or required to appear at a deposition, but Sullivan did not seem to be in a hurry to pull Kennedy into court.

Justice Department attorney Marcia Berman objected to bringing in Kennedy for testimony, arguing that it would distract him from his regular duties.

“We do not think that’s an efficient use of a government official’s time,” Berman told the judge.

Bekesha noted that in July the State Department’s top FOIA official, John Hackett, was ordered to appear in court in another suit for Clinton’s records. That case involved delays of four years or more in producing records requested by The Associated Press.

“That was a highly unusual process, and the government did object to it,” Berman said of Hackett's live testimony.

Sullivan, who lashed out at the government during prior FOIA hearings, was more restrained Tuesday. At different points in the hearing, he suggested the case was unusual enough to warrant special “discovery” into the government’s handling of Clinton’s records, although by the end of the session he said he wanted to stick for the time being to the traditional process.

“You may get the relief you are seeking at the end of the day,” the judge said.

While Sullivan ordered that formal legal briefs be filed, the two sides sketched out their respective legal positions in greater detail Tuesday than at earlier hearings, including one in August where the idea of Kennedy's testimony was first floated.

Judicial Watch contended that Clinton’s routine, exclusive use of her private server transformed the data in her account into government records.

“We don’t believe it was a personal email system because it was exclusively used while she was the head of the agency,” Bekesha said.

Berman called that “an incredibly novel legal theory” and she said it was foreclosed by a 1980 Supreme Court decision that held FOIA could not be used to obtain near-transcripts of former Secretary of State Henry Kissinger’s phone conversations. Kissinger sent those records to the Library of Congress on the condition that they not be released until five years after his death.

“It is very analogous” to the Clinton situation, Berman argued. “The government has, respectfully, done even more than it's required to do in a FOIA case."

However, Bekesha said the Kissinger materials were typed up by his secretary and may have been regarded as personal from the outset. The attorney also pointed to use of the Clinton server by her deputy chief of staff, Huma Abedin, and reports that it was maintained by State Department information technology specialist Brian Pagliano.

“Our position is not that all personal email accounts need to be searched,” the lawyer said. “This wasn’t a Gmail account that [was] used occasionally here and there.”

Even if Sullivan and other judges ultimately rule that Clinton’s server was not an official records system subject to FOIA, any records on it could wind up subject to FOIA through the FBI, which got the server itself from a tech company in August and has been examining it for evidence of possible foreign intelligence intrusions.

Bekesha disclosed Tuesday that Judicial Watch already filed a FOIA request with the FBI for records on Clinton’s server and got a “Glomar” response, namely that the FBI refused to confirm or deny the existence of any records. The attorney said the group plans to appeal and then file suit.

FBI records are likely off-limits under FOIA until the agency completes its inquiry. Sullivan previously ordered State to ask the FBI about the status of its inquiry, but the law enforcement agency rebuffed the request.

Before the legal issues are hashed out, the State Department has agreed to turn over more emails from Abedin and Clinton chief of staff Cheryl Mills responsive to requests from Judicial Watch and another conservative group, Citizens United.

Citizens United is scheduled to receive as many as 326 documents on a rolling basis over the next couple of weeks involving contacts with the Clinton Foundation and consulting firm Teneo.

And by next week, Judicial Watch is supposed to get 69 pages of records related to Abedin’s designation as a “special government employee,” which allowed her to be paid by State while also taking on outside work, including for Teneo.

“The public has a right to inspect these important documents in a timely manner, and that’s what today’s ruling provides,” Citizens United President David Bossie said after the hearing. “If it weren’t for our FOIAs and subsequent lawsuits, these records would remain exactly where Hillary Clinton wants them — in the shadows.”

Clinton, who has said she used the private server for convenience, has denied that use of the private server had anything to do with keeping information from the public.

“It’s totally ridiculous,” she told NBC last month. “That never crossed my mind.”

Clinton campaign spokesman Brian Fallon said Tuesday that nothing is being concealed.

"We will continue to cooperate with the State Department to the greatest extent possible," Fallon said, "but as we have always said, Hillary Clinton has already provided the department with all work-related or potentially work-related emails that were in her possession last year."

