Grants discovery

Second judge grants discovery in Clinton email lawsuit

By Josh Gerstein

Citing indications of wrongdoing and bad faith, a federal judge has overruled government objections by declaring that a conservative group is entitled to more details about how Hillary Clinton's private email account was integrated into the State Department recordkeeping system and why it was not searched in response to a Freedom of Information Act request.

U.S. District Court Judge Royce Lamberth entered an order Tuesday agreeing that Judicial Watch can pursue legal discovery — which often includes depositions of relevant individuals — as the group pursues legal claims that State did not respond completely to a FOIA request filed in May 2014 seeking records about talking points then-U.S. Ambassador to the United Nations Susan Rice used for TV appearances discussing the deadly attack on U.S. facilities in Benghazi in September 2012.

Lamberth is the second federal judge handling a Clinton email-related case to agree to discovery, which is unusual in FOIA litigation. Last month, U.S. District Court Judge Emmet Sullivan gave Judicial Watch the go-ahead to pursue depositions of Clinton aides in a lawsuit for records about former Clinton Deputy Chief of Staff Huma Abedin.

"Where there is evidence of government wrong-doing and bad faith, as here, limited discovery is appropriate, even though it is exceedingly rare in FOIA cases," Lamberth wrote in a three-page order. The judge noted that State argues it had no legal duty to search Clinton's emails when Judicial Watch's request arrived because her emails were not in the agency's possession and control at that time. It was not until December 2014 that Clinton turned over a portion of her email archive to State at the agency's request.

"The government argues that this does not show a lack of good faith, but that is what remains to be seen, and the factual record must be developed appropriately for the Court to make that determination," Lamberth wrote.

A Justice Department spokeswoman declined to comment Tuesday, while a State Department official said her agency is aware of the order and is reviewing it.

Judicial Watch President Tom Fitton praised the judge's decision as a step toward reducing the mysteries surrounding Clinton's private email setup.

"It’s a remarkable decision that highlights the serious issues about the State Department and Mrs. Clintons activities," Fitton said in an interview. "Discovery will allow us to get into the shifting explanations and potential misrepresentations and exactly where the missing records might be."

The practical impact of Lamberth's order could be limited, since Sullivan has already received a detailed discovery plan from Judicial Watch in the Abedin-related case. Sullivan is expected to rule on that proposal by mid-April. Lamberth said Tuesday he would look at any additional discovery proposals from the conservative group after Sullivan has ruled on the pending request.

Lamberth's ruling is likely to produce a back-to-the-future feeling among some Clinton loyalists and veterans of partisan legal wars from the 1990s. The Reagan appointee oversaw a series of lawsuits in that era over issues like access to the meetings and records of Clinton's Health Care Task Force, the maintenance of security files on GOP appointees in a White House security office and the use of Commerce Department trade missions as a reward for campaign donors.

The discovery process in those cases, often pursued by Judicial Watch, became a kind of ordeal for many senior Clinton appointees. The confrontational, wide-ranging depositions were eventually dramatized in the TV show, "The West Wing."