Trump Administration Asks Court Again to Keep Records Secret
Group Argues Agency Violating FOIA to Cover for Hillary Clinton
(Washington, DC) – Judicial Watch today announced that U.S. District Judge Amy Berman Jackson has ordered the U.S. Department of State to turn over to Judicial Watch “eight identical paragraphs” of previously redact material in two September 13, 2012, Hillary Clinton emails regarding phone calls made by President Barack Obama to Egyptian and Libyan leaders immediately following the terrorist attack on the U.S. mission in Benghazi. Both emails had the subject line “Quick Summary of POTUS Calls to Presidents of Libya and Egypt” and were among the emails stored on Clinton’s unofficial email server. Judge Jackson reviewed the documents directly and rejected the government’s contention that the records had been properly withheld under the FOIA B(5) “deliberative process” exemption.
Judge Jackson ruled: “the two records, even if just barely predecisional, are not deliberative. [The State Department] has pointed to very little to support its characterization of these two records as deliberative, and the Court’s in camera review of the documents reveals that they do not fall within that category.”
The full emails may reveal what former Secretary of State Hillary Clinton and President Obama knew about the September 11, 2012, terror attack on the U.S. mission in Benghazi.
Following Judge Jackson’s March 20 ruling, the State Department asked the court to reconsider. The State Department argued that, due to an internal “mistake,” it failed to claim that the emails were classified and, therefore, exempt from production under FOIA Exemption B(1).
In response, Judicial Watch argues that the failure was not a mistake, but instead was part of a deliberate effort by the State Department to protect Clinton and the agency by avoiding identifying emails on Clinton’s unofficial, non-secure email server as classified.
Judicial Watch’s filing cites an interview of an FBI employee who told federal investigators that top State Department official Patrick Kennedy pressured the FBI to keep Clinton’s emails unclassified. The employee told the FBI he “believes STATE ha[d] an agenda which involves minimizing the classified nature of the CLINTON emails in order to protect STATE interests and those of CLINTON.”
Judicial Watch’s filing also cites an interview of a State Department employee who told the FBI that the State Department’s Office of Legal Counsel interfered with the FOIA processing of email from Secretary Clinton’s server, instructing reviewers to use Exemption B(5) (deliberative process exemption) instead of Exemption B(1) (classified information exemption). According to the FBI interview:
STATE’s Near East Affairs Bureau upgraded several of CLINTON’s emails to a classified level with a B(1) release exemption . [Redacted], along with [Redacted] attorney, Office of Legal Counsel, called STATE’s Near East Affairs Bureau and told them they could use a B(5) exemption on a upgraded email to protect it instead of the B(1) exemption. However, the use of the B(5) exemption, which is usually used for executive privilege-related information, was incorrect as the information actually was classified and related to national security, which would be a B(1) exemption.
Judicial Watch argues:
An agency’s deliberate withholding of a FOIA claim, either to gain a tactical advantage or, as appears to be the case here, to protect the agency’s interests and those of its former head, is “a motive undoubtedly inconsistent with FOIA’s broad remedial purpose …” It “counsels denying the Government’s request.”
The emails in question were sent to then-top administration officials, including Clinton, Deputy Secretary of State William Burns, Under Secretary of State Wendy Sherman, Clinton Deputy Chief of Staff Jacob Sullivan, Special Assistant Robert Russo, and Deputy National Security Advisor Denis McDonough.
“Does President Trump know his State and Justice Departments are still trying to provide cover for Hillary Clinton and Barack Obama?” said Judicial Watch President Tom Fitton. “An extraordinary court ruling that could result in key answers about the Benghazi outrage is being opposed by the Trump administration. This may well be an example of the ‘deep state’ trying to get away with a cover up – if so then the Trump administration must put a stop to it.”
Judicial Watch obtained the original documents in response to a Freedom of Information Act (FOIA) lawsuit (Judicial Watch v. U.S. Department of State (No. 1:14-cv-01511)). The lawsuit was filed on September 4, 2014, after the State Department failed to respond to a June 13, 2014, FOIA request seeking:
- All records related to notes, updates, or reports created in response to the September 11, 2012 attacks on the U.S. Consulate in Benghazi, Libya. This request includes, but is not limited to notes taken by then Secretary of State Hillary Rodham Clinton or employees of the Office of the Secretary of State during the attack and its immediate aftermath.
- The timeframe for this request is September 11-15,
Judicial Watch’s numerous FOIA lawsuits have forced the State Department to release hundreds of Benghazi-related documents.