Hillary Clinton Resists Court Order to Produce After Action Memo on Search and Review Process that Lead to Deletion of Her Emails; Judicial Watch Files Motion to Compel

Judicial Watch announced today that it filed amotion in federal court to compel former Secretary of State Hillary Clinton to produce the December 2014 after action memorandum created by her personal attorney Heather Samuelson that memorializes the search for and processing of Clinton emails in 2014. Samuelson reviewed Clinton’s State Department emails and about half of them were deleted (Hillary Clinton is also resisting, through an emergency appeal, the court’s order that she testify to Judicial Watch about her emails.)

The filing comes in a Freedom of Information Act (FOIA) lawsuit that seeks records concerning “talking points or updates on the Benghazi attack” (Judicial Watch v. U.S. Department of State (No. 1:14-cv-01242)). Judicial Watch famously uncovered in 2014 that the “talking points,” which provided the basis for false statements by then-National Security Advisor Susan Rice, were created by the Obama White House. This FOIA lawsuit led directly to the disclosure of the Clinton email system in 2015.

In December 2018, Judge Lamberth ordered discovery into whether Clinton’s use of a private email server was intended to stymie FOIA; whether the State Department’s intent to settle this case in late 2014 and early 2015 amounted to bad faith; and whether the State Department has adequately searched for records responsive to Judicial Watch’s request. The court also authorized discovery into whether the Benghazi controversy motivated the cover-up of Clinton’s email. The court ruled that the Clinton email system was “one of the gravest modern offenses to government transparency.”

Clinton is resisting producing even a portion of the “after-action” memo, despite an August 22, 2019, ruling by U.S. District Court Judge Royce C. Lamberth that Judicial Watch may ask for the memorandum in its discovery. Clinton refused to produce any part of the memo, alleging that it is fully exempt from disclosure under the “attorney work product doctrine.” In an earlier ruling on a similar issue in this litigation, the Court held that “any contemporaneous documents shedding light on the three narrow discovery topics – even documents evincing attorney impressions, conclusions, opinions, and theories – constitute fact work-product” and should be produced.

Judicial Watch explains to the court: “After repeated attempts to resolve this dispute have proven unsuccessful, [Judicial Watch] respectfully requests an order from the Court to compel Secretary Clinton to produce the document … within short order.”

Judicial Watch points out:

This is a rare Freedom of Information Act (FOIA) case in which the Court determined that civil discovery is appropriate. On March 29, 2016, the Court granted [Judicial Watch’s] motion for discovery, holding that “[w]here 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.”

In its motion Judicial Watch refutes Clinton’s claim that the memo is protected by the “attorney work product doctrine”:

Secretary Clinton claims that the after action memo is subject to the attorney work product privilege and exempt from disclosure, but she fails to explain that the memorandum was created in reasonable anticipation of litigation. … She does not assert that it was created due to the litigation here. Neither does she claim that it was created in anticipation of any other specific litigation. Simply put, she does not demonstrate that the after action memo was not created in the normal course of the search and review process …

Second, … the after action memo falls within the category of “contemporaneous documents shedding light on the three narrow discovery topics.” … According to Samuelson’s testimony, the after action memo plainly contains factual information memorializing searches and techniques for retrieving Secretary Clinton’s governmental records.

Clinton’s attorneys also do not explain why her emails were deleted despite the “reasonable anticipation of litigation,” rather than preserved.

In a June 2019 court-ordered deposition to Judicial Watch, Samuelson admitted under oath that she was granted immunity by the U.S. Department of Justice in June 2016. She also revealed that, contrary to what she told the FBI in 2016, she was, in fact, aware that Clinton used a private email account while secretary of state. Samuel’s admission to Judicial Watch that she became aware of Clinton’s non-State.gov emails during her service in the Clinton State Department White House Liaison Office contradicts the notation in the FBI’s May 24, 2016, “302” report on Samuelson’s interview with FBI agents:

Samuelson did not become aware of Clinton’s use of a private email account and server until she was serving as Clinton’s personal attorney.

In 2014, after Clinton left the State Department, Samuelson became Clinton’s personal attorney where she was primarily responsible for conducting the review of Clinton emails and sorting out “personal” emails from government emails, which were provided to the State Department under the direction of Cheryl Mills and Clinton lawyer David Kendall.  After the emails were provided to State, Clinton, through her lawyers and Platte River Networks, deleted the rest of the “personal” emails from her server, wiping it clean. Samuelson conducted the review of emails on her laptop, using Clinton server files downloaded from Platte River Networks, which housed the Clinton email server.

“Hillary Clinton doesn’t want the Court and the American people to know the full truth about her destruction of 33,000 emails,” said Judicial Watch President Tom Fitton.

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