The issuance of written questions to Clinton would provide little of the high-stakes political drama conservatives hoped for out of a potential face-to-face interrogation of the presumptive Democratic nominee. | AP Photo Judge mulls written questions to Clinton on emails

A federal judge weighing whether to require Hillary Clinton to submit to a sworn, videotaped deposition about her email setup publicly mulled at a hearing Monday whether having her answer written questions would suffice instead.

While U.S. District Court Judge Emmet Sullivan repeatedly cautioned onlookers not to read too much into his public musings on the point and made no immediate ruling, the issuance of written questions to Clinton would provide little of the high-stakes political drama conservatives hoped for out of a potential face-to-face interrogation of the presumptive Democratic nominee.


Monday's hearing itself provided some drama as longtime Clinton lawyer David Kendall appeared in court for the first time in the nearly 1½-year-long email saga to resist the conservative group Judicial Watch’s request that Clinton be ordered to give a three-hour deposition in a Freedom of Information Act suit.

“My sense is Secretary Clinton would like to put this whole matter behind us and move on to other things,” Sullivan said to Kendall. “Why not answer one or two ... questions under oath ... and be done with it?”

“There's no legal basis for it,” Kendall replied.

Clinton’s lawyer insisted that Clinton testified about the email issue during her marathon appearance before the House Benghazi Committee and during a private interview with the FBI recounted by FBI Director James Comey in Congressional testimony earlier this month. In addition, Clinton’s been repeatedly interviewed by the media about the issue, the lawyer said, consistently saying that she set up the private email system for personal convenience.

“The answer is not going to change,” Kendall said. “It appeared to be a matter of convenience.”

Sullivan noted that while Comey summarized Clinton’s statements during her 3½-hour FBI interview, no recording or transcript of that session has been made public.

“Neither the court nor the public knows what Mrs. Clinton told the FBI. You were there. You want me to swear you in?” the judge said to Kendall jokingly.

“I prefer to stay on this side of the lectern,” Kendall responded.

While Sullivan has said publicly that Clinton violated government policy by doing official business on the private server, Kendall persisted Monday in his claim that the practice was permissible under State Department rules.

“It was clearly permitted and allowed” by policy, Kendall said, before acknowledging that Clinton’s server was never specifically approved by anyone at State.

Kendall also suggested that while the suit before the court is on its surface about the State Department’s failure to turn over all documents responsive to a request for records about the employment arrangements of veteran Clinton aide Huma Abedin, Judicial Watch’s true agenda is to wound Clinton politically.

“Politically, there is an elephant in the room: They want to take her deposition,” Kendall declared.

Judicial Watch attorney Michael Bekesha denied any political vendetta, although his group has regularly railed against Clinton as dishonest for more than two decades.

“We’re not on a witch hunt here. We’re not taking discovery for discovery’s sake,” Bekesha said. “We’ve only asked for three hours. ... We don’t think this is something that should go on all day. We want to be respectful of Mrs. Clinton’s time.”

The Judicial Watch lawyer was clearly dissatisfied when Sullivan raised the issue of written questions to Clinton.

“It’s our position that the best way to gather evidence is by depositions,” Bekesha said.

Bekesha said Comey's testimony that Clinton said her email system was set up for personal convenience provided some insight as to how the system began, but little indication of why Clinton kept using it when it didn’t work well or why proposals to move her to the official system were rejected.

“All the testimony Mr. Comey provided was a moment in time,” Bekesha said. “It does not answer questions of why she did not place her emails in the box when she left.”

During the hearing Monday, which spanned about 2½ hours, including a half-hour break, Sullivan asked several times about the possibility of issuing written “interrogatories” to Clinton, even going so far as to ask Kendall how long he and his client would need to respond to a handful of such queries. Kendall initially said two weeks, but later extended his proposed time frame to 30 days.

Asked by Sullivan why he was objecting to Clinton facing more questions about her email system, Kendall quipped: “If lawyers were at Mount Sinai, Moses would have come down with not Ten Commandments, but 10,000.”

Sullivan seemed to appreciate the joke, but said: “I’m not going to allow anybody to ask 10,000 questions.”

The State Department, through briefs filed by its lawyers at the Justice Department, is also opposing the effort to depose Clinton.

Both the Justice Department and Clinton’s lawyers are arguing that the proposed deposition is unnecessary because State will soon receive from the FBI all the additional emails it was able to recover during the recently concluded criminal investigation. Justice Department attorney Caroline Wolverton said the FBI plans to start sending those records to State in batches, electronically, beginning Friday.

Asked what relief Judicial Watch could get even if it proved some intent on Clinton’s part to thwart FOIA, Bekesha said the group might be able to demand that lost or deleted records be reconstructed from other State employees personal email accounts. He also said it was unclear how the FBI had sorted the records, how long the process of turning them over to State would take and whether Abedin’s emails would be included.

Wolverton said some of Abedin’s recovered messages would be included in the material coming from the FBI.

As the hearing wrapped up, the judge said he would rule on the deposition issue “as soon as I can.”

Even a ruling from Sullivan that Clinton need not submit to a deposition would not preclude the possibility that she might eventually be ordered to testify in one. Dozens of FOIA lawsuits are pending related to Clinton’s emails, with most of the litigation pending in front of other judges. Judicial Watch is already seeking a deposition of Clinton in one of those other cases. Parties to the other suits could also ask judges to compel Clinton to testify.

The Clinton team also has options up its sleeve. They include the possibility of asking a federal appeals court to block a Clinton deposition if a judge does order it. Clinton’s lawyers can also play for time, seeking to neutralize the political threat by trying to drag out any proceedings until after the November election.

In addition to Clinton, Judicial Watch is seeking to take depositions from two other individuals in connection with the suit: a recordkeeping official in the secretary of state's office, Clarence Finney, and a former manager of computer services for that office, John Bentel.

One of the few areas where Sullivan was definitive Monday was regarding Bentel. Justice Department attorney Caroline Wolverton opposed any effort to “pull [him] out of retirement,” but the judge said he believed Bentel “should be deposed.”

A State Inspector General report said two employees remembered Bentel rebuffing questions about Clinton’s use of a personal email account. They said he told them not to raise the issue again. According to one, Bentel said the arrangement was approved by State Department lawyers, something that does not appear to have happened.