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

U.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