Under the Radar Blog Archives Select Date… August, 2020 July, 2020 June, 2020 May, 2020 April, 2020 March, 2020 February, 2020 January, 2020 December, 2019 November, 2019 October, 2019 September, 2019

Hillary Clinton certifies email handover, but aides demur

Acting in response to a request from a federal judge, former Secretary of State Hillary Clinton Friday submitted her first official, formal certification under penalty of perjury that she had all her work-related email turned over to the State Department.

However, two aides to Clinton appear to have rebuffed parallel requests from U.S. District Court Judge Emmet Sullivan that they similarly certify that they'd turned over certain emails and other records in their possession relating to their work at State.

Last week, Sullivan ordered the State Department to ask Clinton, former Chief of Staff Cheryl Mills and former Deputy Chief of Staff Huma Abedin to personally vouch that they'd turned over all records responsive to a Freedom of Information Act request the conservative group Judicial Watch filed seeking information on Abedin's employment arrangements.

A court filing the Justice Department submitted on Friday afternoon (posted here) indicated that Clinton had not replied to the department's request that she submit a declaration pursuant to the court's order. However, State spokesman Alex Gerlach confirmed Saturday that such a submission from the Clinton camp did arrive Friday, but wasn't immediately noticed because it went to someone who was on vacation.

Clinton's formal declaration may not satisfy her critics because while she has said she directed that all potential federal records in her private email account be turned over to her former agency, she can't personally certify that the handover was complete because she left the actual sorting process to her attorneys.

While Sullivan's order sought personal confirmation from all three former officials that they'd turned over all related records as well as details of any use Mills and Abedin made of Clinton's email server, neither of the two aides sent a personal declaration to the court. Instead, lawyers for each of the staffers submitted letters providing some details on the situation.

Clinton's decision to offer an under-penalty-of-perjury declaration while her aides did not seems to reflect a divergence in legal strategy and political exigency.

As a presidential candidate and someone likely to provide very public testimony soon before a House panel investigating the Benghazi attacks, Clinton may have no practical choice but to testify under oath about the handling of her emails. Meanwhile, her aides and others caught up in the probe may elect a more defensive posture, declining to make official statements that could serve as fuel for ongoing on future investigations of Benghazi, the email arrangement or other matters

Mills' attorney, Beth Wilkinson, said in her letter that Mills turned over some work-related records to State on June 25 and plans to provide the remainder on Monday. "Ms. Mills did not have an account on Secretary Clinton's email server," Wilkinson added.

Abedin's lawyers, Karen Dunn and Miguel Rodriguez, said their client produced some records to State on July 9, they are planning another production Saturday and expect to complete turning over all work-related records by August 28. Abedin's attorney's also noted that the State Department sent its first request for her records to "an incorrect address" and also sent follow-up emails to dated email addresses.

"Ms. Abedin’s initial ability to respond was impeded by the Department’s failure to ensure that the request timely reached Ms. Abedin," Dunn and Rodriguez wrote. Their letter did not address Sullivan's question about use of "Mrs. Clinton's email server to conduct official government business."

Indeed, State does not always appear to be in a rush to communicate legal requests and deadlines to Clinton and her former aides. State's Friday afternoon filing indicated that while the judge asked the agency a week earlier to communicate his request for the certifications, the agency did not send letters relaying the request until Wednesday of this week.

Judicial Watch attorney Michael Bekesha raised alarm in a court filing late Friday that Wilkinson's letter said Mills planned to destory electronic copies of her work-related records on Monday. However, Wilkinson said Mills's lawyers planned to maintain a copy of the data if State would permit it.

"Following our production on August 10, 2015, we have instructed [Mills] to delete any and all electronic copies in her possession," Wilkinson wrote.

State's decision to deem classified some of the emails on Clinton's server has also created a layer of complexity some may see as a Catch-22: if aides destroy the records, they could be seen as hindering ongoing investigations, but if they deliberately hang on to classified materials without authorization, they could be breaking the law.

Sullivan did not appear completely satisfied with the assurances in the latest round of letters, as he issued an order Friday night instructing State to ask Clinton, Mills and Abedin not to destroy any official records.

"The Court hereby directs the Government to request that Mrs. Hillary Clinton, Ms. Huma Abedin, and Ms. Cheryl Mills i) not delete any federal documents, electronic or otherwise, in their possession or control, and ii) provide appropriate assurances to the Government that the above-named individuals will not delete any such documents," wrote Sullivan, an appointee of President Bill Clinton. "The Government shall inform the Court of the status of its compliance with this Order no later than August 12, 2015, including a copy of any assurances provided by Mrs. Clinton, Ms. Abedin and Ms. Mills that they will not delete any federal documents in their possession or control."

So far, Sullivan has refrained from issuing any orders directly to Clinton or her former aides in connection with the Judicial Watch suit, apparently because they are neither parties to the case nor current employees of the sole defendant in the suit: the State Department. Wilkinson's letter notes both those facts and adds that Mills was never asked to search for any records related to the suit until the judge issued his order last week. The FOIA request at issue was filed in 2013.

The disclosure in March that Clinton exclusively used a private server and account for her email as secretary of state has led to a flurry of litigation challenging the sufficiency of State's searches for records sought in Freedom of Information Act requests or seeking searches of records Clinton and her aides have returned to State since she produced about 54,000 pages of emails last December. State said recently that it is facing about 40 FOIA lawsuits to which the Clinton emails may be responsive.