Federal Court Orders Discovery Into The Clinton Emails And Suggests The Possibility of Subpoenas To Force Disclosures

Hillary_Clinton_Testimony_to_House_Select_Committee_on_BenghazisullivanU.S. District Judge Emmet G. Sullivan sent shockwaves through Washington yesterday by ruling that State Department officials and top aides to Hillary Clinton will be subject to discovery on whether they intentionally violated federal open records laws by using or allowing the use of a private email server throughout Clinton’s tenure as secretary of state from 2009 to 2013. The case opens up another front for Clinton who is facing rising criticism over her decision to exclusively use her own private server for communications as Secretary of State — a decision that gave her control over her email system but exposed classified information to interception. The State Department supplied a secure system for her use but Clinton opted not to use that system. Over 1,700 emails on Clinton’s private email system have been classified (22 at the highest level of “top secret”). While Clinton insists that the information was not marked classified at the time, that is not the test under federal law. Yet, this case concerns the use of the private server to circumvent open record laws. The court also indicated that it may order subpoenas for Clinton officials in light to the failure to fully disclose information. Sullivan, who I have appeared before regularly over the last two decades, is a widely respected judge and a Clinton appointee.

Sullivan set an April deadline for parties to work out an investigative plan and suggested that subpoenas may be necessary to produce all records related to Clinton’s private account. Clinton deleted tens of thousands of emails that her staff deemed private. Sullivan expressed frustration with both the State Department and the Clinton camp, saying that the poor handling of these emails has created “at least a ‘reasonable suspicion’” that public access to official government records under the federal Freedom of Information Act has been disregarded. He emphasized that “this case is about the public’s right to know.”

Sullivan noted that it is not clear that senior State Department officials were aware that Clinton had decided not to use the protected or secure State Department system. He cited a January 2009 email exchange including Undersecretary for Management Patrick F. Kennedy, Clinton chief of staff Cheryl D. Mills and Huma Abedin about establishing a “stand-alone network” email system. Now that it is also confirmed that top secret information was discussed on Clinton’s private server, any discovery is likely to cause both political and legal problems for the Clinton camp. First, any depositions might result in refusals to testify by key officials. The invocation of Fifth Amendment protections against self-incrimination would have significant political impacts. After all, no one would suggest that Sullivan is part of a right-wing conspiracy or runaway investigation. The refusal to testify would reflect the real danger of tripping the wire on federal classification laws as well as more general concerns that statements conflicting statements with those government investigators could trigger charges under 18 U.S.C. 1001. Second, depositions raise the explosive potential of an aide admitting that the email system was understood to be an effort to retain control of the email system and evade federal laws. Many have assumed that the exclusive use of a private server was part of a long-standing habit of the Clinton to closely control information. A declaration confirming that assumed purpose would directly contradict Clinton and present both legal and political risks for her and her aides.

Yet, while putting a possible torpedo in the water, it is a still a relatively slow-moving torpedo. It could take months to agree on the plan and then order any depositions or disclosures. Indeed, the primary is likely to be largely, if not completely, finished before damaging evidence would come out of that process.

Source: Washington Post

42 thoughts on “Federal Court Orders Discovery Into The Clinton Emails And Suggests The Possibility of Subpoenas To Force Disclosures”

  1. The basic question on claSsification horruss is who can be harmed? We see from the declass of jfk records et. Al. It’$ not a simple question…

    Then again maybe it is. Is our national security risked..
    Because hillary held the ambassedor out to dry…or because of super delegates who aid and abet her crimes? But for the super delegates looming over the doj….she would be tried. Then what’$ classified? Commie.

  2. Horus….bradley manning is in jail forever over sos emails. Because they were “embarassing”…yet hillary sent bengazi iteneary unclass….sure he didn’t meet the unflagged ship….his murderers got him before he checked the hotel. Or rented the video.

  3. Horruss….i asked that same question of the fbi months ago…..they said basically “we do” which i knew was not true…..coming professionally from the dod. The bottom line is….it’$ subjective. Peons might think something is or isn’t classified. But if hhq says it it is, it is, unless adhering to that would bust an oath. For instance if you were ordered to remain hush about some illegality ….they shouldnt get you on “classified” when you spill the beans…cf bradely manning. He’s basically in jail for life for hillary state dept emails. But as to her emails……the servers did not connect. So the only way classified got on her server is if someone sat in a classified breif….then back breifed her ( or she sat in and wrote about it) but at that point an alphabet determuned it was classified. Already. And that’$ the problem….sos is often boots on the ground. …supplying info to other know it alls. So just because sos is talking xy. Doesn’t mean know it all with xyz says classified. It is a compartmentaluzation problem really. But what she probably dealt with…..was “bits” of information….when tied in was holy macoroni. Then again on unsecure net she shared the who how when where and why…..is it really unclassified that the am bassador will get on a ship at prot disclosed, at two pm, and sail under a german flag (or whaterever) and has two body guards. That’$ too much information. Even the lay man knows that’$ a risk. Hence it’$ per se classified.

  4. Prof. Turley, you wrote above:

    “While Clinton insists that the information was not marked classified at the time, that is not the test under federal law.”

    I am no expert in this area by any means. Can you explain to me what exactly is the test under federal law that is pertinent to the Clinton emails? I’ve never seen anyone make that point clear in print or in any interviews and not having that point on the table makes it difficult for anyone of us out her who doesn’t have a dog in the fight to really discern what, in fact, the issue is. Can you help me out on this?

    1. Horruss – JT has written several blogs on this subject and covered this issue. If you go back to thru the times this issue comes up, you will get a clear definition. Also, several intelligence specialists have written on the subject and their material is available on the web. For instance, some material is ‘born classified.’ The moment it is created it is considered classified and only those on a need to know are allowed to see it.

  5. Editor…he forgot the line “i had an sci clearance when i worked for…..and everything is per se classified.” okay benifit of a changed arguement now we are opening the get around foia can of worms. This will be fun. The irs dog. The doj dribbler. The nih using researchers to safely park beyond foia. …avoiding foia is a federal sport. Too bad gambling is illegal.

  6. WHAT IF……..Hillary gets elected and Hooma and Cquirrel testify that they knew it was private and illegal; the FBI and Justice concurrently recommend criminal charges…….who decides…. The President, the House or the Senate ?

  7. Well, I used to be for Hillary, but even I couldn’t stomach the email thing, and using her own personal computer server. Sheeesh, that was just totally frigging crazy, (and crooked) and I have no further use for her. I am now a Trump supporter.

    Squeeky Fromm
    Girl Reporter

  8. Don De Drain:

    “Bernie is the least worst of the lot of front runners on both sides. If elected he won’t be able to duplicate the domestic actions of FDR (who he somewhat resembles politically) as long as the Rogue Mutant Ninja Turtle remains the Senate Majority or minority Leader.”

    I disagree. Someone who thinks a 90% tax rate is not too high can do serious, lasting harm to our economy. Analysts agree that Bernie could confiscate every single dime from the rich, have them inexplicably keep working, and it STILL would not pay for what he wants to do.

    I took such a big hit from Obamacare. A lot of people have taken financial hits from the economy continuing to struggle, and those in office at the state and federal level just keep on throwing up more hurdles to business owners and employers. It gets harder and harder out there. It’s as if Bernie is saying, “You haven’t seen financial difficulty or a down economy yet!” Wait until everyone’s on Welfare, then people will be clamoring for more government involvement, and more benefits. That’s what I’ve seen with Obamacare. They’ve made insurance even more expensive and unaffordable. You didn’t hear too many people asking for single payor, but now it’s become quite common. What will people clamor for when policies make it even harder to find a job and make ends meet?

    This is not a robust economy. Politicians have made it harder and harder for people to succeed. The first major obstacle was that whole “homeownership is a right” and requiring A paper is racist nonsense that led to the subprime mortgage melt down. They put people into foreclosure, and on the street, and those people keep clamoring to the same politicians who got them into this mess for more “help”.

    And the other side of the Duopoly is not much better. Passing out “free stuff” and pandering to Big Unions might be the Democrat insincere schtick to get votes, but Republicans are also for sale. Everyone pays to play in DC.

    I don’t foresee any good changes on the horizon.

    1. Karen – 5 minutes ago I got a call from Bernie’s people telling me that the ballots for early voters had gone out. What his people don’t know is that I am an Independent and cannot vote unless I declare a party. The guy was a former Greenie, so that may explain his confusion.

  9. In the event that none of you have figured it out yet…Hillary will receive the Democratic nomination…later she will be indicted at which time they will shoe horn Joe Biden in. Biden will win the Presidency…why? Because the wealthy corporate elite want someone in that office they can control…Once in office Biden will help Obummer become Secretary General of the UN so they can put the US forces under the control of the UN…THEN you can plan on WWIII…figure it out yet??? Not really that difficult.

  10. My second paragraph should have started with “From the standpoint of Republican’s who don’t like blowhards, religious zealots or neocons…..”

  11. Karen S

    Cruz and Rubio are no better than Trump. Maybe worse. Cruz is a cross between Father Coughlin (who was also Canadian) and Richard Nixon, combining the worst qualities of each. Rubio is a full blown neocon who opposed limitations on the government’s ability to surveille citizens. Don’t like Obama when it comes to certain civil liberties? (I don’t.) Rubio will be Obama on steroids. Turley will have frequent blog posts about Rubio’s executive overreaching. He likes Bloody Bill Kristol and will get us into more wars faster than you can say “nuclear Armageddon.”

    Bernie is the least worst of the lot of front runners on both sides. If elected he won’t be able to duplicate the domestic actions of FDR (who he somewhat resembles politically) as long as the Rogue Mutant Ninja Turtle remains the Senate Majority or minority Leader.

  12. RE Donald our next President….

    These are the lies that millions of Americans wolf down so rabidly. A brief moment reading JunkChuck’s site illustrates just how wacko millions of Americans are. A lot of them prowl this blog. Their main weapon is that they lie so incessantly that after a while other vacuous types latch on.

  13. This news regarding the discovery proceeding into Clinton’s emails is all well and good, but nothing is going to happen to Clinton. Although I believe that a genuine investigation would prove to be so damaging that at a minimum Clinton would be forced out of her presidential campaign, I am 100% certain that there is not going to be a genuine investigation. How can I be so certain? Simple. The Clintons have amassed files on all key players in power, including Obama. Those power players know that if she goes down, THEY go down. Thus, Clinton is ultimately untouchable. Sorry, but that’s the way our corrupted system works. That’s why the big fish ALWAYS get away, while the little ones get caught.

  14. Yes Olly, it is the lesser of the evils. This is how the US governs itself. Time to switch to a multiparty parliamentary system. No more kings and more than two choices, which is one more than a dictatorship. As an oligarchy there is really no difference at all. Make way for the new boss, same as the old boss.

  15. It certainly says something about the electorate that both major political parties have candidates leading in both delegates and negatives. I can understand the Democratic ticket as the other choice is a nutjob. Not much of a choice there. The GOP is an interesting story. When Trump’s supporters are challenged to identify ANYTHING he has said or done that proves he will respect the rule of law and the separation of powers, they have absolutely nothing to show. Instead, they respond like the attack dogs famously supporting Obama and now Clinton.

  16. Donald

    Clinton has nothing on you, except your range is this blog. She will probably be the next President.

  17. Clinton is the Democrats version of the water-boarding controversy. As long as she furthers the progressive cause her supporters are willing to go brain-dead on her negatives. Same goes for Trump’s supporters.

  18. After all, no one would suggest that Sullivan is part of a right-wing conspiracy or runaway investigation.

    Sometimes I can’t tell if Turley is the best deadpanner alive or the most naive man in America.

Comments are closed.