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Case number 20-5056, Dean Ray Hillary Robin-Clinton and Cheryl Mills.

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Mr. Kendall for the petitioners, Ms.

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Cotka for the respondent, Mr. Freeman for the United States Department of State.

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This is Judge Griffith's counsel.

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We welcome you and thank you for participating today.

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unusual circumstances, and we're all dealing with a new way of hearing one another during arguments.

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So if you will be patient with us, we will be patient with you.

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Let's begin with Mr. Kendall.

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Good morning.

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May it please the court?

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This is David Kendall.

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I represent Petitioner

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former secretary of state Clinton.

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I will also be presenting argument this morning on behalf of copetitioner Cheryl Mills.

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Uh, I want to first address the two questions this court identified in its May 14th order, but I wanted to counsel to focus on first mootness.

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This case is moot for a number of reasons.

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First, the petitioners have no emails whatsoever left to produce.

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Uh, nobody disputes that.

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In December 2014, at the request of the State Department, Secretary Clinton provided all of her then-existing emails that were either work-related or potentially work-related, and Ms.

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Mills produced all her records in 2015.

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Secretary Clinton has declared under oath numerous times that she's produced all such emails in her custody, and respondents make no claim that petitioners have anything left to produce.

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Mr. Kendall, this is Judge Griffith.

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But on the record before us, how can we hold the cases moved?

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Judge Lambert's most recent order noted that the State Department continues to produce new emails and one of those suggests that there may be undisclosed text messages as well.

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Typically, we require jurisdictional facts to be determined by

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the district court, and hasn't Judge Lambert here found that there may be more out there?

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Judge Griffiths, three responses to that.

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First of all, it's true that the Department of Justice in the December hearing said it couldn't identify where some of the emails the FBI had given the State Department came from, was still working on.

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But the Department of Justice has now determined these are not new at all.

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These are not new emails.

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recently filed memo in another Judicial Watch case, this one before Judge Walton, Judicial Watch versus Department of State 12-CV-2034.

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In opposing Rule 56D discovery, the State, the Department of Justice filed a memo on April the 30th saying, you know, these emails were not new at all.

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They've been in the possession of the State Department originally.

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The standard in FOIA, as this court has said many times, is not one requiring the absolute production of every possible record.

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What's required is a good faith search and a good faith and reasonable search.

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And the fact that a few documents turn up later does not impugn that search.

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And finally, with regard to the text messages, there's really

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Again, these two petitioners have nothing to contribute there.

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All of the existing, the Secretary's existing cell phones were given to the FBI in 2015.

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Those have been analyzed.

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Judge Boasberg found in the Tillerson decision, which was the case right before it came up to discourse Pompeo,

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that the FBI had searched the phones, the secretary had turned over, and none of the phones contained relevant records.

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So I think that, I think mootness is clear.

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I think it was clearly established in Pompeo when the court affirmed the decision of Judge Boesberg dismissing a suit brought by judicial watch to compel production records under the Federal Records Act.

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Two years earlier, the court had reversed and remanded an earlier dismissal

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to see if any more emails could be obtained, quote, by shaking the tree, close quote, as this court put it.

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The district court then conducted further hearings and ultimately concluded that no imaginable enforcement action could lead to the recovery of more emails.

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Mr. King, I'm going to direct your attention to Judge Lambert's order.

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And I'm looking at the carryover paragraph

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from page one to page two of that order.

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And I'd like you to respond to this sentence at the bottom of page one.

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State failed to fully explain the new email's origins when the court directly questioned where they came from.

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Is that accurate or?

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It's accurate that the petitioner for, sorry, the counsel for State Department, Mr. Pezzi,

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said that they were still working on the origin of those emails.

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So I think it's accurate this order was filed.

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Judge Lambert filed his order in March the 2nd.

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But as I mentioned in this other case, and judicial watch should be well aware of this, the department has answered that question

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by saying these emails are not new at all.

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They were formerly in the presence of, in the custody of the State Department.

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So I think it's clearly the Justice of Irma has closed that loop.

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And then the next sentence.

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Furthermore, State has not represented to the Court that the private emails of State's former employees who corresponded with Secretary Clinton

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have been searched for additional Clinton emails.

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Is that accurate?

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It's not entirely accurate because as Judge Boasberg's opinion in Tillerson, and that site is 293 F sub 33 at page 45, as Judge Boasberg reviewed, indeed the FBI has searched many and has interviewed many of the

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people with whom the secretary emailed.

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So they haven't, they haven't, I can't say that they've interviewed every last one, but certainly emails have been collected from a variety of sources, which typically duplicated the emails we turned over from the secretary's server in December of 2014.

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Okay, thank you.

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Mr. Kendall, this is Judge Wilkins.

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The follow-up on Judge Griffith's questionings, would it be, why wouldn't it be relevant for the sake of argument to depose either Secretary Clinton or Ms.

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Mills to clarify who

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may have corresponded with either of them or in general about the Benghazi talking points, because that's what the FOIA request is directed to.

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Judge Wilkins, for a variety of reasons.

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One, that information is already available in the emails that state has.

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Two, from CC, all those people are there and available.

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for judicial watch or anybody else to see.

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Many of them have already been contacted, as I mentioned, by the FBI and interviewed.

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A deposition about that would have no relation to the one issue in a FOIA case.

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Are there any more documents to produce?

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One of the reasons there is so rarely

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discovery in a FOIA case is that the issue is document production.

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An agency does not have to explain why it has no documents.

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It doesn't have to do further work except that it does have to conduct a reasonable search for responsive documents that are not exempted by one of the nine exemptions.

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So the case would be moot because A,

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The petition had no more emails to produce.

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The information is already out there.

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And this is a FOIA case.

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It's not some kind of a different investigative case.

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A search has been done.

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This court, in a 1982 case called Perry versus Block, 684 at Second 121,

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said that once documents had been produced, we are not authorized to make advisory findings of legal significance on the character of the agency conduct vis-a-vis any requester of information.

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In sum, if we are convinced that appellees have, however belatedly, released any non-exempt material, we have no further judicial function to perform under the FOIA.

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Mr. Kendall, this is Judge Pillard.

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You assert mootness.

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You're not asserting that the whole case is moot, but just with respect to the petitioners here, Mills and Clinton?

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That's correct, Judge Pillard.

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We simply don't know.

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We intervened in the case that Judge Clinton did.

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became clear that her deposition might be an issue.

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But the only relief we seek here by mandamus is an order that vacating the memorandum order of Judge Lambert insofar as it provides for depositions of these two parts.

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So I'm trying to just as a sort of a formal matter understand the procedural posture here.

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We have a non-party witness, Ms.

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Mills, and

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Ordinarily, one might expect that she would be before the court because she would have been subpoenaed in the jurisdiction where she is present.

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She would file a motion to quash the subpoena.

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Then the district court, if the district court denied that, then it would be before us on mandamus from that denial.

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But I gather that isn't what we have here procedurally.

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Procedurally.

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Can you fill us in on sort of

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I was just thinking about, it's unusual, it's not unprecedented, but it's unusual to have a claim that a unit of a case or a subpart of a case is moot.

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And I'm trying to get my mind around what that subpart is.

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It's not a claim, it's what?

[00:11:49] Speaker 04:
The subpart is the order directing these two depositions.

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Those papers were presented to judge.

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The judge issued an order rejecting our arguments on March the 2nd.

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So what, what the question here, there's no subpoena, there's no, yeah, go ahead.

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Sorry.

[00:12:11] Speaker 07:
Go ahead.

[00:12:13] Speaker 04:
No, I didn't mean to interrupt, but the, the, the, there's no subpoena, but certainly, um, we were party, the deposition would have been noticed as we point out the remedy of contempt, which would then be been available to us, uh, doesn't work because as this court ruled,

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in the 1998 case in Ray Seeler's decision, a case which I'm unfortunately very well familiar with because I argued to lose insight in the case.

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That case was a mandamus action brought by then-independent counsel, Counsel Starr, because we had gotten an order compelling him to testify.

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He said that

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contempt, he said that he had no adequate alternative remedy.

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This court, and I argued citing the Papandreou case just as Judicial Watch does, and this court said not so fast there, said it more elegantly of course,

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But it noted that there was no remedy because, first of all, the order wasn't final.

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It wasn't appealed.

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And secondly, you couldn't tell whether the court was going to impose civil or criminal contempt.

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Right.

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Right.

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So if that answers the question.

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So there's been no, as you said, deposition would have been noticed, although Ms.

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Mills is not a party.

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Is she just a non-party witness?

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Is it Secretary Clinton who intervened?

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So they just asked her and she didn't require that there be a notice of deposition?

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I think that after the order, certainly the order was giving the

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giving judicial watch the right to depose the secretary.

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So I think that is where the present posture of the case and Ms.

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Mills.

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And Clinton intervened.

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So the court had jurisdiction over her because she voluntarily wanted in and now she basically is saying no moot and she wants out.

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So I understand substantively making a claim of mootness, but I'm trying to get, as I said, I'm trying to understand the

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sort of procedural door through which that goes, or the procedural unit that you would say that applies to.

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So mandamus is an extraordinary remedy.

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And I wonder if you have the best case you can point us to where mandamus was granted to prevent a district court

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from authorizing discovery that was beyond the bounds of relevance in the case.

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I mean, I know you've framed this as mootness, but putting that aside for a moment, if we just look at this as another way of saying these depositions are irrelevant or cumulative or both, there's just nothing that can legitimately be pursued through these depositions, then it really looks more like a case where the question is a district court's management of discovery.

[00:15:30] Speaker 07:
I know you cite the apex doctrine.

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The district judge was careful to say we're not allowing inquiry into the substance of the decisions that were made.

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We're talking about finding documents.

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These are former, not current officials.

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So I gather the interest that applies here is the third interest, which is, you know, would people be deterred from serving?

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So I'm not sure how powerfully the apex doctrine just, you know, forsake of argument.

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If we were to put that aside,

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We have a situation here where the district court arguably has gone beyond what is relevant.

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Best case, mandamus from our court or any court in a case where there's been an allowance that's discovered beyond the bounds of relevance.

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I think the Inroy District Court case is

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is certainly one.

[00:16:29] Speaker 04:
I think that in the Pompeo decision itself, and that was not a mandamus case, but Judge Boasberg did note that he was applying a mootness standard with more teeth than the FOIA standard.

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I think we've made clear that there is protection of former

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officials in a number of different cases.

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We've cited former governors, former EPA administrators.

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Usually those cases don't require mandamus because the district court judge makes grants of motion to quash for a protective order.

[00:17:05] Speaker 04:
Here, mandamus is necessary because, as I've said, it's not an appealable order.

[00:17:10] Speaker 04:
And the district court judge himself has determined that the depositions will go full.

[00:17:18] Speaker 05:
Okay.

[00:17:20] Speaker 05:
Judge Pillard, did you have further questions?

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I don't want to interrupt your line.

[00:17:25] Speaker 07:
No, go ahead.

[00:17:26] Speaker 07:
Thanks.

[00:17:28] Speaker 05:
So just following up on Judge Pillard's questions, the doctrine about no other avenue for relief, because you don't know whether contempt is going to be civil contempt or criminal contempt, and only criminal contempt is directly appealable

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as an interlocutory order, that line of cases applies to parties.

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And Secretary Clinton is a party because she intervened under Rule 24, and that was granted.

[00:18:04] Speaker 05:
But Ms.

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Mills is not a party.

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And so that line of cases does not apply to Ms.

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Mills.

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Instead, the line of cases that apply to her is that a non-party is supposed to be subpoenaed and moved to quash.

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And if that's denied, then refused to comply and be held in contempt.

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And regardless of whether that's civil or criminal contempt, then that non-party can appeal that order.

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Isn't that correct?

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Judge Wilkins, it's certainly correct that Ms.

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Mills did not technically intervene.

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She was treated, though, as a party before the district court.

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you know, the order applies to her equally.

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So I think the arguments that Secretary Clinton had fully covered Ms.

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Mills, plus the fact that Ms.

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Mills was deposed at length by judicial watch back in June of 2016 on these very same issues.

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So she has been, I think has an additional claim.

[00:19:20] Speaker 05:
This is was, was that deposition a part of this case or another litigation?

[00:19:26] Speaker 04:
It was a part of the litigation before Judge, I believe this is Greg, before Judge Sullivan 13-CV 1363.

[00:19:41] Speaker 04:
I'm just not certain.

[00:19:42] Speaker 04:
In the Judge Sullivan case, there were eight depositions.

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In this case, there have been 18 depositions.

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I just am not certain, as I said.

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I can easily check it as to which... No, I think you're right.

[00:19:54] Speaker 04:
I think you're right.

[00:19:57] Speaker 06:
Mr. Kendall, this is Judge Griffith again.

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How burdensome would these depositions be?

[00:20:04] Speaker 04:
They would be very burdensome because the issue here, as the State Department puts it, is simply discovery for discovery's sake.

[00:20:12] Speaker 04:
They would be done by video and the real purpose of the depositions is harassment.

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It's the creation of video footage that can be used for political

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partisan attack ads, and social media fundraising.

[00:20:28] Speaker 04:
It's not authorized by the FOIA.

[00:20:30] Speaker 04:
It's in a moot case, as the Supreme Court has said.

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The court doesn't have power to decide questions that can't affect the rights of the litigants in the case before them.

[00:20:44] Speaker 06:
Why doesn't it need to be done by video?

[00:20:47] Speaker 06:
Or why couldn't the video be sealed?

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I mean, if you're right, they're not going to last very long.

[00:20:55] Speaker 04:
Well, there's no assurance of that.

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Certainly, you could seal something, but the standards for sealing, as I need not remind this court and as a lawyer sometimes represent, excuse me, those standards are not very reassuring, finally.

[00:21:13] Speaker 06:
Why does it need to be by video?

[00:21:17] Speaker 04:
That has been the practice in the case, I believe, and I haven't been in the case, Ms.

[00:21:24] Speaker 04:
Koch can correct me if I'm wrong, I believe most of the cases have been done by video.

[00:21:30] Speaker 04:
And it's just a practice in the case.

[00:21:33] Speaker 06:
What I'm getting at is, I mean, there is a line of cases out there in which mandamus is used to manage discovery.

[00:21:43] Speaker 06:
But in those cases, the interests

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seem to be more substantial.

[00:21:50] Speaker 06:
You have deportation proceedings, you have death penalties.

[00:21:54] Speaker 06:
Here, it seems you have, it'd be a nuisance, there's no question about that.

[00:22:01] Speaker 06:
But if you're right, the line of questioning won't last very long, right?

[00:22:08] Speaker 06:
It'll be overdone pretty quickly.

[00:22:11] Speaker 06:
And so, again, asking this all in the context of mandamus is extraordinary, right?

[00:22:19] Speaker 06:
It's a rare device and even more rare when we're talking about discovery.

[00:22:25] Speaker 06:
And so I'm just trying to get your sense of the interest at stake here.

[00:22:31] Speaker 04:
Well, the harassment factor is a real one.

[00:22:34] Speaker 04:
Ms.

[00:22:34] Speaker 04:
Mills was deposed, I think, for six hours.

[00:22:37] Speaker 04:
The point is that this does not relate in any way to the disclosure of further documents.

[00:22:47] Speaker 04:
Everybody agrees that under FOIA discovery is very, very rare, only in extraordinary circumstances.

[00:22:56] Speaker 04:
So in that regard, I think there is a clear violation that, and I think everybody admits that mandamus is an extraordinary remedy.

[00:23:06] Speaker 04:
But it is available when the three-part test is met.

[00:23:11] Speaker 04:
Is there a clear and indisputable right?

[00:23:14] Speaker 04:
Is there no other avenue of relief?

[00:23:17] Speaker 04:
And is it appropriate under the circumstances?

[00:23:20] Speaker 04:
Here, in a case where you've already had 36 depositions in a FOIA case, FOIA cases,

[00:23:27] Speaker 04:
Nobody gets that kind of discovery.

[00:23:31] Speaker 04:
The purpose of this discovery, even if it were sealed, is simply harassment.

[00:23:36] Speaker 04:
It's not authorized by the law or the court or by court precedent.

[00:23:45] Speaker 06:
OK.

[00:23:45] Speaker 06:
If there are no further questions from my colleagues, we'll give you a couple of minutes back on rebuttal.

[00:23:51] Speaker 06:
And thank you.

[00:23:52] Speaker 06:
And we'll now hear from the Judicial Watch.

[00:23:57] Speaker 02:
Good morning.

[00:23:59] Speaker 02:
May it please the court, I'm Ramona Kotka on behalf of Respondent Judicial Watch.

[00:24:03] Speaker 02:
In light of the court's order, I will also begin with the issue of mootness.

[00:24:08] Speaker 02:
This court's holding in Pompeo does not moot this case based on the facts that are known today in the record.

[00:24:15] Speaker 02:
These facts can be categorized in two different categories.

[00:24:19] Speaker 02:
One is new Clinton emails, and the second issue is limitations with respect to the FBI's investigations that are relevant in this case.

[00:24:27] Speaker 02:
To quickly address the new Clinton emails, it is not in this record that, in the record before the district court, that these emails the State Department had before.

[00:24:39] Speaker 02:
And the information that Mr. Kendall had referred to earlier, even if assuming those emails were within the State Department's position at some point, that doesn't answer the question, why is it that four years after the FBI closed its investigation,

[00:24:56] Speaker 02:
that there's still additional Clinton emails that are being produced.

[00:25:00] Speaker 02:
Why were they not searched or located or produced earlier?

[00:25:04] Speaker 02:
And that is part of it.

[00:25:06] Speaker 05:
Ms.

[00:25:06] Speaker 05:
Kotka, this is Judge Wilkins.

[00:25:08] Speaker 05:
What is in the record is the transcript from the hearing when those emails were discussed with the district court.

[00:25:20] Speaker 05:
And that's at docket 156.

[00:25:25] Speaker 05:
There, I'm not sure if it was you, but it was counsel for Judicial Watch said that those 30 emails were not responsive to this FOIA request.

[00:25:39] Speaker 05:
The quote is, we understand they're not responsive in this case.

[00:25:45] Speaker 05:
So you are

[00:25:47] Speaker 05:
saying that these 30 emails prove something, but they are not even emails that are related to the Benghazi talking points that your FOIA request is regarding.

[00:25:59] Speaker 05:
So what significance do they have?

[00:26:03] Speaker 02:
The significance is that they identify a subset of Clinton emails that were not previously identified or searched.

[00:26:11] Speaker 02:
And to answer the ultimate question in any FOIA cases,

[00:26:15] Speaker 02:
While the objective is to get to the documents and for production of the document, the issue before the court and the ultimate question is, was there a reasonable search that was conducted?

[00:26:26] Speaker 02:
So if we do not know where all the subset of Clinton's emails exist, that is the purpose for why the district court has ordered this additional discovery so it can be able to develop the record that it needs to reach the determination of what is a reasonable search in this case.

[00:26:43] Speaker 02:
And I would just point out that one... Ms.

[00:26:45] Speaker 07:
Tachik, can I just interject?

[00:26:48] Speaker 07:
My understanding is that at the moment when there was an exchange before the district court, the State Department said they're not relevant to this case and we're not exactly sure where they come from, you know, standing up there.

[00:27:03] Speaker 07:
But then states then did determine that they are not new at all, that they were in

[00:27:10] Speaker 07:
the State Department's possession and therefore they were searched.

[00:27:13] Speaker 07:
So I understand what you're saying that there's this concern if there's a category even of non-responsive emails that is showing up belatedly notwithstanding various investigations and Federal Rector's Act recovery, then you think, oh we have a leaky vessel here.

[00:27:32] Speaker 07:
But I think that inference is unfounded on the public record that actually there was no leaky vessel, that states had those, and they were among the body of documents that states did search.

[00:27:51] Speaker 07:
So if that is accurate, then I'm not sure I follow the implication.

[00:27:57] Speaker 07:
And if it's not, let me know why you think it's not.

[00:28:01] Speaker 02:
I believe that the record is that the State Department did not search those emails until the FBI identified them in November of 2019.

[00:28:12] Speaker 02:
That's not my understanding.

[00:28:18] Speaker 07:
My understanding is that they looked at them and they realized that they were among the body of emails that they had searched.

[00:28:26] Speaker 02:
I believe that they only looked at them

[00:28:29] Speaker 02:
because of the FBI identified them in November of 2019.

[00:28:35] Speaker 02:
And that is why the district court in its order pointed to the fact that why are there additional subset of Clinton emails that are being looked at four years after the FBI closed its investigation.

[00:28:51] Speaker 02:
And part of the reason that the district court permitted the additional discovery is because it was troubled by the fact that the State Department

[00:28:59] Speaker 02:
could not provide an explanation from where these emails came from.

[00:29:03] Speaker 02:
And to address your question with respect to the fact that now state has come to say that these emails were in its possession all along.

[00:29:14] Speaker 02:
However, that's what begs the question here and the question with respect to the leaky vessel.

[00:29:20] Speaker 02:
Because Clinton used a private email and a private email server to communicate while she was at state,

[00:29:28] Speaker 02:
Her records, even within the State Department, are not known where they exist because they can be dispersed all over the State Department.

[00:29:37] Speaker 02:
So perhaps they were on the state.gov email system, but State Department didn't even know when it searched this case to look in those places for Clinton-related emails or Benghazi Talking Points-related emails.

[00:29:52] Speaker 02:
And that would go... I'm a little confused by that.

[00:29:56] Speaker 07:
I haven't heard that line.

[00:29:58] Speaker 07:
argument before, you're saying that you can't be confident in the State Department search because it's unclear where the recovered emails that have been brought back into the State Department pursuant to the Federal Records Act are within the State Department?

[00:30:18] Speaker 02:
No, so the State Department does not say actually where these emails or how it was that it was in possession of these 28 emails.

[00:30:25] Speaker 02:
It does not say that it was among the 30,000 emails that Secretary Clinton provided to State in 2014, and it does not state that it was among the emails that were recovered by the FBI investigation.

[00:30:40] Speaker 02:
It just says that State Department was in possession of the emails.

[00:30:45] Speaker 02:
The question is, was it in possession of the emails because

[00:30:49] Speaker 02:
it's on state.gov email address because the recipient of an email with Secretary Clinton was somebody else outside the secretary's office, which is the office that was relevant to Judicial Watch's request in this case.

[00:31:04] Speaker 02:
So if her records, I'd like to, perhaps if I illustrate with the example of the IRS, in 2013 it was disclosed that the IRS had lost

[00:31:17] Speaker 02:
years of Lois Lerner's emails.

[00:31:20] Speaker 02:
What the IRS did in that case, to be able to conduct a comprehensive effort to recover or locate all of Lois Lerner's emails, it had identified 120 custodians with whom Lois Lerner most likely communicated with while she was at the State Department.

[00:31:41] Speaker 02:
And Lois Lerner was not the head of the agency.

[00:31:43] Speaker 02:
She was just the director of a department.

[00:31:46] Speaker 02:
Here, the State Department has searched four custodians outside of Secretary, of the emails that Secretary Clinton provided to the State Department.

[00:31:55] Speaker 02:
They include Petitioner Shira Mills, Puma Abedin, Jacob Sullivan, and Phillip Rains.

[00:32:01] Speaker 02:
We know that there are more individuals within State Department even that Secretary Clinton communicated with, and the reason that we need to get to the question of

[00:32:12] Speaker 02:
under these circumstances, was there an intent to evade FOIA?

[00:32:17] Speaker 02:
That's a critical question in this case that must be answered.

[00:32:19] Speaker 05:
I don't understand why that question has to be answered.

[00:32:24] Speaker 05:
If the question is whether there's been an adequate search, what difference does it make whether

[00:32:36] Speaker 05:
what the intent was or reasons for using a private server or Secretary Clinton's or anybody else's understanding of states record-keeping obligations.

[00:32:50] Speaker 05:
How does that prove or disprove whether this search that has been conducted since Secretary Clinton left office was adequate?

[00:32:59] Speaker 02:
So to be able to get to the question of whether the search is adequate, this

[00:33:04] Speaker 02:
report has repeatedly held to determine reasonableness in FOIA, you must look or the district courts must look to the totality of the circumstances.

[00:33:15] Speaker 02:
And on the issue of intent to circumvent FOIA, we get to that because of footnote nine in the Kissinger case that the Supreme Court held.

[00:33:26] Speaker 02:
If in a case where you have an agency head who used private email and a private email server that was housed in

[00:33:34] Speaker 02:
a basement of her Chappaqua home.

[00:33:38] Speaker 02:
If that shows that there is an intent to evade FOIA, then greater effort must be done to locate all of the missing records.

[00:33:48] Speaker 00:
That's the reason I can't go away.

[00:33:50] Speaker 07:
So the question I have, I understand that under the Federal Records Act, the government has a duty to make sure that official agency records are

[00:34:03] Speaker 07:
in its custody and officials have an obligation to comply with policy to ensure the same, which is why we asked you about the Pompeo decision, because it isn't SPOIA that creates an obligation and an authority to reach outside an agency to bring back documents.

[00:34:27] Speaker 07:
It's the Federal Reps Act.

[00:34:28] Speaker 07:
Am I right?

[00:34:29] Speaker 02:
Well, no, if there is evidence

[00:34:32] Speaker 02:
under Kissinger, the footnote nine.

[00:34:34] Speaker 02:
If there is evidence that the agency had intended to circumvent FOIA, then the court does have jurisdiction.

[00:34:42] Speaker 02:
I mean, this was a circumstance that was not before the Supreme Court, but the Supreme Court did envision that this week is happening.

[00:34:49] Speaker 02:
No, it wasn't.

[00:34:50] Speaker 07:
No, it doesn't.

[00:34:51] Speaker 07:
So they talk about what's in the control of the agency at the time of the search.

[00:34:58] Speaker 07:
We need not decide whether

[00:35:01] Speaker 07:
this standard might be displaced.

[00:35:03] Speaker 07:
I'm reading from the Supreme Court footnote.

[00:35:05] Speaker 07:
In the event that it was shown that an agency official purposely routed a document out of agency possession in order to circumvent a FOIA request, no such issue is presented here.

[00:35:13] Speaker 07:
We express no opinion as to whether an agency withholds documents which have been long fully removed by an individual.

[00:35:22] Speaker 07:
No opinion, and if that's your strongest authority, I'm just not sure in a FOIA case what you find

[00:35:30] Speaker 07:
where you think the district court has the authority or the duty to discover and reclaim documents that might be outside of the agency's possession?

[00:35:46] Speaker 02:
Well, the most recent decision is this court's decision in the CEI case.

[00:35:53] Speaker 02:
There, the official was using a different email account, and the circuit court held that

[00:36:00] Speaker 02:
an agency official cannot shield agency records by using a different email than the email of the email account, the official email account.

[00:36:12] Speaker 07:
Right.

[00:36:12] Speaker 07:
So all of the reason we're very interested in the interaction between this case and the Tillerson-Pompeo case is that our court has held that the Federal Records Act obligation

[00:36:30] Speaker 07:
to unwind the removal of the e-mails or the housing of the e-mails outside the agency.

[00:36:42] Speaker 07:
That has been unwound.

[00:36:44] Speaker 07:
Those e-mails have been brought back.

[00:36:47] Speaker 07:
And the FBI, which has every incentive and power to look into that, including forensic, electronic searches and the like, has said, this is done.

[00:37:00] Speaker 07:
And our court, more importantly, has said, this is done.

[00:37:03] Speaker 07:
So it's really hard, I think, to follow an argument that says, well, maybe not.

[00:37:12] Speaker 07:
Maybe it's not done.

[00:37:13] Speaker 07:
And I think that's what we're probing.

[00:37:16] Speaker 07:
Why the state of mind is not required to be shown not relevant to a FOIA case.

[00:37:24] Speaker 02:
Well, it is with respect to understanding the totality of the circumstances.

[00:37:29] Speaker 07:
Where are you getting the phrase the totality of the circumstances in terms of case law?

[00:37:34] Speaker 07:
Where does that come from?

[00:37:34] Speaker 07:
Your totality of circumstances test.

[00:37:37] Speaker 02:
Sure.

[00:37:38] Speaker 02:
The Safeguard Services case.

[00:37:40] Speaker 02:
It is a DC Circuit opinion.

[00:37:44] Speaker 02:
Yes.

[00:37:45] Speaker 02:
To answer your question with respect to the Pompeo holding by this circuit,

[00:37:55] Speaker 02:
It is important to look at this court's holding in Pompeo, and the record before it, as well as the record in the Tillerson case, to the fact of what the FBI did, not the characterization of its efforts.

[00:38:11] Speaker 02:
FBI was limited in what it did, and the fact that the 28 new emails have appeared show that.

[00:38:19] Speaker 02:
In addition, the district court, and you can see this on page

[00:38:25] Speaker 02:
four and five of the District Court's March order.

[00:38:28] Speaker 02:
It was not convinced that all avenues for Clinton emails have been looked at.

[00:38:35] Speaker 02:
And that is the reason, one of the reasons why the District Court permitted Judicial Watch to survey subpoena on Google for Secretary Clinton's email from Paul Combetta's Gmail account.

[00:38:47] Speaker 07:
And has that been done?

[00:38:48] Speaker 07:
Did the Google search take place?

[00:38:53] Speaker 02:
Yes, it has and that's why I want to, it is not before, it is not in the record here because this is a new recent development.

[00:39:01] Speaker 02:
Right, it's recent development since the briefing.

[00:39:03] Speaker 02:
So there has been a search and a response and according to Google's response, it appears that there are 260 Clinton emails that appear to be work related

[00:39:16] Speaker 02:
and appear to not have been previously identified either in the emails that Secretary Clinton provided to the state in 2014 or among the emails that the FBI recovered and turned over to the State Department.

[00:39:35] Speaker 05:
From what time period are those emails?

[00:39:37] Speaker 02:
Yes, and that is, this is from 2010.

[00:39:42] Speaker 02:
Now, these emails are not responsive in this case because they predate the Benghazi attack.

[00:39:49] Speaker 02:
However, it shows that it is another subset of Clinton emails that have not been looked at by the FBI or the State Department.

[00:39:56] Speaker 05:
How can you use a subset of emails that don't need to be searched because they're not even possibly relevant to your FOIA request to show

[00:40:13] Speaker 05:
that there's some sort of a problem with the search.

[00:40:16] Speaker 02:
Because we don't, the reason that we look at that and the reason it is significant is because it shows that there's another source for potentially responsive records.

[00:40:28] Speaker 05:
It would have some significance if they were from the time period more possibly could relate to your FOIA request.

[00:40:37] Speaker 05:
But if neither of those are true, then I don't see how it has any significance at all.

[00:40:44] Speaker 02:
Well, I think the significance is that even today, the State Department still does not know what is the universe of Clinton's emails from the State Department.

[00:40:58] Speaker 02:
That is the significant issue here.

[00:41:00] Speaker 02:
And I just want to point out very quickly, the 260 emails

[00:41:05] Speaker 02:
are actually from only a four-month period, from October, a three-month period, from October to December of 2010.

[00:41:13] Speaker 02:
And if the court would like, Judicial Watch can supplement the record to include the subpoena and the response.

[00:41:21] Speaker 07:
I think you're right that that's not before us.

[00:41:24] Speaker 07:
The question is whether there's anything more than mere speculation that

[00:41:33] Speaker 07:
there are documents that if State Department ran more searches, it would uncover.

[00:41:39] Speaker 07:
And in this case, there's not a Federal Records Act claim in this case.

[00:41:44] Speaker 07:
So again, I'm curious where you find in a FOIA case, with respect to one set of talking points and documents related to it, the authority or duty of the district court to bring, to look outside

[00:42:02] Speaker 07:
State Department custody and look for documents that might exist.

[00:42:08] Speaker 07:
I just, you know, saying that there is some speculative chain of inference based on a different year and a different set of emails that, you know, I just don't follow how FOIA leads you there.

[00:42:27] Speaker 07:
I mean, seriously, I just don't, I really, and when you point to footnote nine, in the Kissinger case, I don't think that helps you.

[00:42:38] Speaker 07:
And when you point to safe card, which actually says near speculation, that as yet uncovered documents may exist, does not undermine the finding that the agency conducted a reasonable search for them.

[00:42:52] Speaker 02:
Well, I think the identification of the,

[00:42:57] Speaker 02:
28 or 30 new emails.

[00:42:59] Speaker 02:
And these 260 new emails show that there are additional places to look.

[00:43:07] Speaker 02:
But what this shows is that the FBI was limited in its effort in what it did in Pompeo.

[00:43:16] Speaker 02:
And that's why it's important to look at the record to see what it did and those limitations as to what the FBI did

[00:43:23] Speaker 07:
are relevant in this case because... Well, not... I mean, we in Pompeo, we're bound by our circuit precedent.

[00:43:32] Speaker 07:
And you can disagree with it.

[00:43:33] Speaker 07:
And you can say if you had run the FBI, you would have done a different search.

[00:43:37] Speaker 07:
But that's an extraordinary position to say that, well, you know, Federal Records Act cases, you know, closed because

[00:43:49] Speaker 07:
There are no remaining documents for states to recover.

[00:43:53] Speaker 07:
This court credited the findings of the district court.

[00:43:57] Speaker 07:
There are no remaining documents for states to recover.

[00:43:59] Speaker 07:
And you point to 28 or 30 documents, which, I mean, I understand those actually have already been in the possession of the state department.

[00:44:08] Speaker 07:
You keep referring to them as if they weren't.

[00:44:10] Speaker 07:
So it's hard to see the avenue to question the thoroughness

[00:44:18] Speaker 07:
of the search and allow these depositions on this record.

[00:44:24] Speaker 06:
Ms.

[00:44:24] Speaker 06:
Koca, this is Judge Griffiths.

[00:44:26] Speaker 06:
Following up on Judge Pillers' question, what new information do you realistically hope to learn from these depositions that go to the question before us?

[00:44:38] Speaker 06:
And that's the adequacy of the question that's driven by FOIA.

[00:44:43] Speaker 06:
That's the adequacy of the search.

[00:44:45] Speaker 06:
What do you hope to learn realistically?

[00:44:49] Speaker 02:
Well, with respect to the issue of intent to thwart FOIA, the reason we need to answer that question is to be able to then determine what great work must the State Department take if there is an intent by the agency head to circumvent FOIA.

[00:45:06] Speaker 06:
But, I mean, Secretary Clinton has already answered that question, right?

[00:45:10] Speaker 06:
She's given an explanation.

[00:45:13] Speaker 06:
why she had the server in her home.

[00:45:17] Speaker 06:
So are you expecting her to change her answer or is there gonna be new evidence you're gonna confront her with that will refresh her memory in a different way?

[00:45:29] Speaker 02:
Well, part of that, yes.

[00:45:31] Speaker 02:
There's been additional, the additional discovery that's been taken in the district court.

[00:45:37] Speaker 02:
And part of the reason that the district court

[00:45:40] Speaker 02:
ordered the additional discovery here, including the petitioner's deposition, is because after each round of discovery, there are more questions raised with respect to Secretaries Clinton and her email use.

[00:45:54] Speaker 02:
For example, the question with respect to what was her state of mind when she left the State Department with 30,000 federal records and when she filled out a form and provided it to the state archivist

[00:46:09] Speaker 02:
and identifying the documents she was taking, including electronic records, but omitted the fact that she took with her at least 12 banker boxes.

[00:46:22] Speaker 02:
That inquiry goes into what her state of mind was with respect to

[00:46:29] Speaker 02:
her email use.

[00:46:31] Speaker 02:
In addition, there are two instances in the most recent discovery that has taken place.

[00:46:36] Speaker 06:
I'm sorry, remind me what that has to do with the adequacy of the search by the State Department in the FOIA?

[00:46:44] Speaker 02:
Again, it has to do with how do we determine what efforts and what a reasonable search is under these circumstances.

[00:46:56] Speaker 02:
Trying to apply the Pompeo holding that the FBI did everything it could in the Pompeo holding to this case is like comparing apples and oranges because what may have been reasonable for the FBI to do under the Federal Records Act is not the same as what an agency is required to do here under these circumstances which are still being developed

[00:47:23] Speaker 02:
to ensure that he has conducted a reasonable search.

[00:47:26] Speaker 02:
Yes.

[00:47:27] Speaker 07:
This is helpful because I actually, the way, help me out with this because I see it actually quite the opposite.

[00:47:35] Speaker 07:
That yes, it's apples and oranges because under the Federal Records Act, there's actually an affirmative obligation to, you know, complete the official records of the agency if they erroneously are taken away or wrongfully taken away.

[00:47:49] Speaker 07:
They are brought back.

[00:47:51] Speaker 07:
But once, really, the duty under FOIA is to search what are agency records.

[00:47:59] Speaker 07:
So the tool for filling out the roster of agency records is the Federal Records Act, is protecting the roster and filling it out.

[00:48:08] Speaker 07:
The tool then for FOIA is to look at what the agency has.

[00:48:14] Speaker 07:
Not to go out and find more, but to look at what the agency has.

[00:48:17] Speaker 07:
And these two have worked in tandem because

[00:48:20] Speaker 07:
Judicial Watch has done a vigorous litigation campaign and both enforced the Federal Records Act and enforced FOIA.

[00:48:29] Speaker 07:
But we don't have that Federal Records Act claim anymore.

[00:48:32] Speaker 07:
That work, as our court has held in a binding audit, has been done.

[00:48:38] Speaker 07:
So yes, it's apples and oranges, but you have, you know, the tree and list the tree and go pick what's on there.

[00:48:44] Speaker 07:
But you can't, like, ask the district court to, you know, find more trees.

[00:48:51] Speaker 02:
Well, one point that I'd like to respond to your question is the characteristic of a federal record, and this is what CEI talks about in other cases that discuss about attempts and recovery efforts of records under FOIA.

[00:49:15] Speaker 02:
The characteristic of the federal record is not lost just because it is taken outside the agency.

[00:49:21] Speaker 02:
And the same, for example, with the Google emails.

[00:49:25] Speaker 02:
Those emails, just because they are outside the State Department's possession at this time, does not mean that they've lost their characteristic to be a federal record.

[00:49:38] Speaker 02:
So that is why you need to, it is respondent's position that the court needs to look at what

[00:49:45] Speaker 02:
the circumstances are to be able to reach of what the State Department needs to do in this case to ensure that all responsive federal records have been looked at and all potentially responsive federal records have been looked at.

[00:50:01] Speaker 07:
Just a slightly separate question.

[00:50:03] Speaker 07:
What are the four documents that were produced

[00:50:10] Speaker 02:
that were initially produced in response to the records that you've received so far in this case.

[00:50:21] Speaker 02:
The initial four documents, I believe they are email chains and they were all produced in a separate FOIA case that was earlier, also about Benghazi talking points, but that FOIA request went directly to Ambassador Susan Rice's office.

[00:50:39] Speaker 02:
That request did not ask for records from Secretary Clinton's office.

[00:50:48] Speaker 05:
Just so that we're clear, on page six of your response, you set forth the FOIA requests that are at issue here and the two requests, or it's really one request with, I guess, kind of two parts that you described at page six.

[00:51:09] Speaker 05:
it relates to these Benghazi talking points provided to Ambassador Rice regarding a September 16th television appearance.

[00:51:23] Speaker 05:
Is that right?

[00:51:25] Speaker 02:
Correct.

[00:51:27] Speaker 05:
So all of this examination into general email practices and state of mind and everything

[00:51:37] Speaker 05:
is so that we can determine whether a search about some subset of documents related to one incident has been adequate.

[00:51:52] Speaker 05:
That's where we are right now, right?

[00:51:55] Speaker 02:
Yes, but I guess it's a multi-step process.

[00:51:58] Speaker 02:
I guess that's maybe another way of saying it, and to be able to get... It's certainly a multi-step process.

[00:52:05] Speaker 05:
It seems like it's been about a, you know, several dozen step process.

[00:52:11] Speaker 02:
Well, no.

[00:52:13] Speaker 02:
To be able to determine if there's adequacy of a search, the State Department and the agency needs to know where to look for the records.

[00:52:24] Speaker 02:
And based on the record and the information that's been available, even with these new 28 emails, it appears that the State Department does not even know where all of Clinton's emails are.

[00:52:36] Speaker 02:
And that is part of the discovery that's being requested here.

[00:52:42] Speaker 07:
We can ask them, but I don't believe there's a question whether they know what's in their possession and that they've searched every plausible place within

[00:52:54] Speaker 07:
their possession.

[00:52:55] Speaker 07:
You're talking about that they might not know where things are they're out of the department's possession.

[00:53:00] Speaker 02:
Is that what you're referring to?

[00:53:02] Speaker 02:
No, even emails that are within the State Department's possession, the State Department does not know where all of Secretary Clinton's emails are.

[00:53:12] Speaker 02:
The 28 emails, it was revealed by actually the director of the FOIA Department at the State Department in a deposition in the discovery below.

[00:53:24] Speaker 02:
that the State Department upon receiving those emails from the FBI searched those emails because they were potentially responsive in this case in November of 2019.

[00:53:36] Speaker 07:
And realized when they did so that they were the same as emails that the department already had in its possession and had searched.

[00:53:50] Speaker 02:
No, the last portion, I don't believe that's in the record and the State Department has not stated that those emails were previously searched.

[00:53:59] Speaker 02:
That's already the main issue.

[00:54:02] Speaker 05:
That hasn't been stated in any other litigation?

[00:54:07] Speaker 02:
Well, those emails were produced in another litigate FOIA lawsuit that has requested all of Secretary Clinton's emails.

[00:54:18] Speaker 02:
And that has stated that those emails were not previously produced or searched for Clinton emails.

[00:54:26] Speaker 02:
I'm not aware of the State Department to date taking the position that those emails were searched in this case because they are Clinton records and they are potentially relevant and responsive, that those were searched at any point prior to November 2019.

[00:54:51] Speaker 06:
OK.

[00:54:52] Speaker 06:
Any further questions from Judge Peller or Judge Wilkins?

[00:54:56] Speaker 05:
I guess I just want to be clear about something.

[00:54:59] Speaker 05:
When you say that it's not clear that those emails have been searched for this case, meaning with respect to this specific request for Benghazi talking points,

[00:55:22] Speaker 05:
but the emails have been produced to you in another case, right?

[00:55:31] Speaker 02:
Around the same time frame.

[00:55:34] Speaker 02:
Yes, they were produced, well actually they were produced a couple of months later.

[00:55:38] Speaker 02:
They were produced in January, I believe, the first half, and then the second half was produced in February.

[00:55:47] Speaker 02:
I'm sorry, January of what year?

[00:55:49] Speaker 02:
Of this year.

[00:55:52] Speaker 05:
And then, go ahead.

[00:55:55] Speaker 07:
No, no, go ahead.

[00:55:57] Speaker 07:
They're not responsive in this case.

[00:56:01] Speaker 02:
No, but they were just produced in the case that requested for all of Clinton's emails in a case where the FOIA request is not at all limited by subject matter.

[00:56:13] Speaker 02:
The State Department just produced them in January of 2020 and February of 2020 and just identified them

[00:56:21] Speaker 02:
in or around November of 2019.

[00:56:23] Speaker 02:
They were not previously produced.

[00:56:30] Speaker 07:
Just to go back to the question of FOIA and FOIA remedies.

[00:56:34] Speaker 07:
So under FOIA, plaintiffs entitles for an adequate search and with respect to the fruits of the search, either production or sufficient justification of exemptions, justifying their non-production,

[00:56:48] Speaker 07:
And I take it here that the only aspect of the relief that you're disputing in this case is the adequacy of the State Department search, is that right?

[00:56:59] Speaker 02:
Well, there are additional issues that are still pending before the District Court, including the adequacy of the search as well as litigation misconduct in this case.

[00:57:10] Speaker 02:
And the District Court actually, I believe,

[00:57:14] Speaker 02:
its March order, said that it was in fact the State Department's conduct in this case that opened the discovery in the first place.

[00:57:23] Speaker 07:
What was your understanding of what he meant by that?

[00:57:25] Speaker 07:
I wasn't entirely clear about that.

[00:57:30] Speaker 07:
That the State Department had opened the discovery, the State Department's conduct.

[00:57:37] Speaker 07:
Your understanding of that is

[00:57:39] Speaker 02:
Yes, so discovery in this case was permitted for three main issues.

[00:57:45] Speaker 02:
One is the intent to thwart FOIA and the adequacy of the searches.

[00:57:48] Speaker 02:
The second one, which is actually listed as number three in the court's discovery orders.

[00:57:53] Speaker 02:
The second issue where discovery has been permitted is bad faith or litigation misconduct.

[00:58:00] Speaker 07:
Whether the State Department attempts to settle the case in 2014 and early 2015 amounted to bad faith, that's the one you're referring to.

[00:58:08] Speaker 07:
Correct.

[00:58:09] Speaker 07:
What would Secretary Clinton or Ms.

[00:58:15] Speaker 07:
Mills have to say on that?

[00:58:18] Speaker 07:
Neither of them was working at the State Department at that time.

[00:58:22] Speaker 02:
In 2014, at the time that the State Department was attempting to settle this case and represented that it produced all records, the State Department was in communication with Ms.

[00:58:33] Speaker 02:
Mills with respect to

[00:58:35] Speaker 02:
the search and the production or the return of Clinton's emails to the State Department.

[00:58:42] Speaker 02:
The reason that we require Ms.

[00:58:46] Speaker 02:
Mills' deposition on this issue is to be able to determine what discussions there were with respect to the parameters of the search of Secretary Clinton's emails, which is, parameters of research is always relevant in FOIA.

[00:59:01] Speaker 07:
but also with respect to what State Department employees knew and when those discussions were being held, because... So the idea is that they would have talked to her about their litigation decisions, about timing of summary judgment, and not following what... Those State Department people have been deposed.

[00:59:30] Speaker 07:
directly asked about this conduct.

[00:59:31] Speaker 07:
Am I right?

[00:59:33] Speaker 07:
Yes.

[00:59:34] Speaker 07:
And there's testimony... Yes, lawyers and people who handle FOIA and people who knew it was coming in and coming out and people who do computer programming.

[00:59:42] Speaker 07:
All those people have been deposed, right?

[00:59:44] Speaker 07:
Correct.

[00:59:45] Speaker 07:
And... Tell me why Ms.

[00:59:48] Speaker 07:
Mills' testimony... What's the missing link that's going to fill in?

[00:59:54] Speaker 02:
Ms.

[00:59:54] Speaker 02:
Mills' testimony will be with respect to the parameters of Secretary Clinton's search

[00:59:59] Speaker 07:
And also with respect to what was the... Secretary Clinton's search, what's at issue here is the State Department search.

[01:00:09] Speaker 07:
So I'm not sure what and how the parameters of Secretary Clinton's search have anything to do with the State Department's misconduct in trying to settle the case, which is the issue you pointed me to.

[01:00:19] Speaker 07:
So just walk me through it more deliberately.

[01:00:22] Speaker 02:
Sure.

[01:00:23] Speaker 02:
State Department search in this case depends on the adequacy of all the different searches that have been provided.

[01:00:29] Speaker 02:
So we can't ignore, I mean, at this point and actually with the State Department's FOIA Director who raised in his deposition that the State Department has to know what the parameters of Secretary Clinton's email search was.

[01:00:44] Speaker 02:
And he said that he requested that then Under Secretary Patrick Kennedy request that information of Secretary Clinton or her team, a team of perhaps Cheryl Mills,

[01:01:00] Speaker 02:
But to date, based on the record, we do not know yet whether that conversation took place.

[01:01:09] Speaker 02:
And according to Mr. Hackett's deposition in the discovery below, as of the time that he left the State Department, he did not know whether that discussion occurred between Patrick Kennedy and Ms.

[01:01:22] Speaker 02:
Mills.

[01:01:24] Speaker 02:
Which discussion are you talking about?

[01:01:29] Speaker 02:
Mr. Hackett had a discussion with Under Secretary Patrick Kennedy when the emails were provided by Secretary Clinton's team to the State Department.

[01:01:42] Speaker 02:
That the State Department must know what the parameters of the search was that Secretary Clinton's team had used in searching her emails to be able to determine what emails are federal records and what should be returned to states.

[01:01:58] Speaker 02:
According to Mr. Katke, when he was asked, do you know what the parameters, was that ever provided to you?

[01:02:05] Speaker 02:
He was the director of FOIA and his response was no.

[01:02:09] Speaker 02:
I had a discussion with Patrick Kennedy and his understanding was that that was going to be asked or discussed with Ms.

[01:02:16] Speaker 02:
Mills or somebody within Secretary Clinton's team.

[01:02:21] Speaker 02:
However, that is one piece of the puzzle.

[01:02:25] Speaker 07:
I'm not following because the documents that are in the State Department are there and have been searched.

[01:02:34] Speaker 07:
The documents that are not in the State Department, the personal emails, and I gather what you're saying is that there's some suspicion whether the people who sorted the official from the personal were doing that in a rigorous way or whether they were

[01:02:53] Speaker 07:
in fact, putting in the personal bod things that should have been returned to state.

[01:02:57] Speaker 07:
Is that the point?

[01:02:59] Speaker 02:
Yes.

[01:03:00] Speaker 02:
That's the argument, right?

[01:03:01] Speaker 02:
Yes.

[01:03:02] Speaker 02:
On the State Department's archives, there's testimony that was taken in the district court.

[01:03:08] Speaker 02:
Said he didn't know.

[01:03:09] Speaker 02:
Yeah.

[01:03:10] Speaker 02:
Said they couldn't know and, but no, in addition to that, she testified that

[01:03:16] Speaker 02:
In the normal course when an official leaves the State Department, takes with them a source of federal records with them, it wouldn't actually be that official who would be conducting the search.

[01:03:28] Speaker 02:
It should be current State Department employees to conduct the search.

[01:03:34] Speaker 02:
That was the testimony of the State Department archivist who was the archivist actually during Secretary Clinton's tenure.

[01:03:43] Speaker 02:
Right.

[01:03:44] Speaker 07:
And the link between that and a FOIA claim, not a federal record that claim, not a, you know, FBI investigation, but a FOIA claim is what?

[01:04:02] Speaker 02:
I'm sorry.

[01:04:03] Speaker 02:
Can you repeat the question?

[01:04:05] Speaker 07:
What is the link?

[01:04:06] Speaker 07:
So you say problem.

[01:04:10] Speaker 07:
Somehow, Secretary Clinton, unlike other officials who left government and took with them documents that should have been left in the custody of the government as agency records, somehow she was able, with her team, to do the sorting.

[01:04:24] Speaker 07:
That's irregular, shouldn't have happened, raises the question, was it done in a way that was rigorous and actually resulted in the return to the agency of documents that should be considered to be agency records, right?

[01:04:37] Speaker 07:
That's the gist of what you're saying?

[01:04:39] Speaker 07:
Correct.

[01:04:40] Speaker 07:
And my question to you is, what under FOIA gives you any entitlement to question that and or the district court?

[01:04:52] Speaker 07:
And it makes that relevant to the adequacy of a search of documents of agency records at the State Department.

[01:05:01] Speaker 07:
What in FOIA makes that a remedy that flows from the statute?

[01:05:07] Speaker 02:
Well, I believe actually the Supreme Court, I believe in the Kissinger case as well as in the case that is cited in the Kissinger opinion from renegotiation board, the Supreme Court actually talked about the fact that under FOIA, the Congress did not intend to do away with the court's inherent equitable powers.

[01:05:31] Speaker 02:
So the case that we have here are the facts that before the district court,

[01:05:37] Speaker 02:
The fact where a serious question has been raised with respect to an agency's intent to circumvent FOIA when she used a private email and private email server.

[01:05:52] Speaker 02:
It's certainly within the authority of the district court to want to hear from the individual herself with respect to whether that was intent, but also with respect to

[01:06:07] Speaker 02:
how that search was conducted because that search or the reason that the issues that to be adjudicated by the district court hinges in part on how that search was conducted and what if somebody testified what if either Mills or Clinton testified well things that had to do with you know what time I would leave work and you know meet my

[01:06:36] Speaker 07:
family for dinner were not included and if the district judges will actually those should have been official records because they have to do with you know the end of the work day or you know something what if there what if there were documents that someone else that you if you were the one doing the search would have put into the agency record bar what if there were and now they're gone and unattainable

[01:07:06] Speaker 07:
What results in terms of the FOIA power on the district judge, what should happen in your wildest dreams that you succeed in this case as a result of that?

[01:07:19] Speaker 02:
So under FOIA and the court's inheritable powers, the district court is not saying here for the court to make that determination.

[01:07:27] Speaker 02:
The issue here is that it is the agency's role to make that determination.

[01:07:33] Speaker 02:
So it's not the case where, okay, there may be some emails and then those emails are brought before the district court and the district court will decide, is this a federal record or not?

[01:07:44] Speaker 02:
It is, the issue is identifying all of Clinton, all sources where Clinton emails reside and for the State Department to do an adequate search.

[01:07:57] Speaker 07:
Now, is there a- The State Department now has every incentive

[01:08:01] Speaker 07:
to get to the bottom of this.

[01:08:03] Speaker 07:
Do you have any questions that that's the case?

[01:08:06] Speaker 07:
This is no longer... We do, actually.

[01:08:08] Speaker 07:
Secretary Clinton's State Department.

[01:08:10] Speaker 07:
This is the Trump State Department.

[01:08:13] Speaker 07:
Well, it doesn't matter the administration, but the issue is about... Well, it does in the sense of whether you think... What I gather you're saying is that there's some kind of cover-up.

[01:08:22] Speaker 07:
And so I'm just trying to understand... I'm trying to understand why you think this is relevant under

[01:08:29] Speaker 07:
FOIA, the claim you brought.

[01:08:31] Speaker 07:
And as Judge Wilkins pointed out, a very narrow FOIA claim at that.

[01:08:34] Speaker 07:
And I'm trying to understand why this could be relevant.

[01:08:39] Speaker 07:
But maybe I'm beating a dead horse on that.

[01:08:44] Speaker 02:
I'd just like to note, the respondent's position is not here that there's some sort of a cover-up.

[01:08:49] Speaker 02:
But respondent's position is that today, based on the record, there hasn't been an adequate search that has been done.

[01:08:59] Speaker 02:
Take the IRS case where Lois Lerner's emails were lost for several years.

[01:09:05] Speaker 02:
The IRS identified 120 custodians it has searched in an attempt to locate all of Lois Lerner's emails within the IRS.

[01:09:15] Speaker 02:
It couldn't have done it in any other fashion.

[01:09:18] Speaker 02:
The State Department has not done that here.

[01:09:21] Speaker 02:
The State Department has searched four custodians for responsive records.

[01:09:29] Speaker 02:
I guess my point is the petitioner's attempt here is to short-circuit this process by using the most potent weapon in the judicial arsenal to prevent the district court from ever being able to reach a determination of whether there was an adequate surge.

[01:09:50] Speaker 02:
And part of that process has to be to identify all the file cabinets, let's say.

[01:09:57] Speaker 02:
that contains Secretary Clinton's emails.

[01:10:00] Speaker 02:
And those file cabinets are file cabinets within the State Department and also file cabinets with third parties outside the State Department.

[01:10:11] Speaker 06:
Okay, thank you.

[01:10:13] Speaker 06:
Any other questions from Judge Pillard or Judge Wilkins?

[01:10:17] Speaker 07:
No, thank you.

[01:10:18] Speaker 06:
Thank you, Ms.

[01:10:19] Speaker 06:
Spooker.

[01:10:20] Speaker 06:
We'll now hear from Mr. Freeman from the State Department.

[01:10:24] Speaker 03:
Thank you, Your Honor.

[01:10:25] Speaker 03:
Good morning.

[01:10:26] Speaker 03:
May it please the court, Mark Freeman for the State Department.

[01:10:29] Speaker 03:
As the court knows, this is one of dozens of FOIA lawsuits about former Secretary Clinton's emails that have been filed over the years.

[01:10:38] Speaker 03:
The State Department's approach to all of these cases from the beginning has just been to get through them, to respond to the FOIA requests, to push through any district court litigation and bring all of these cases and indeed the entire chapter to a close.

[01:10:54] Speaker 03:
In this case, therefore, although we objected to the discovery in district court in a FOIA case, of course we did.

[01:11:01] Speaker 03:
We have not asked this court to issue the extraordinary remedy of mandamus, and we have not supported the petition at issue here.

[01:11:07] Speaker 03:
I'd be glad to address any questions from the court.

[01:11:13] Speaker 06:
Do you think this case is moot?

[01:11:16] Speaker 03:
We do not, Your Honor.

[01:11:18] Speaker 03:
The, I think, as was alluded to earlier in the colloquy, the case as a whole is not mooted.

[01:11:25] Speaker 03:
It's a FOIA case.

[01:11:27] Speaker 03:
And as we've just heard, there's still a very active dispute over whether the State Department has conducted an adequate search.

[01:11:34] Speaker 03:
And I assume Judicial Watch will eventually challenge the redactions and withholdings that we've made.

[01:11:38] Speaker 06:
Now, sure.

[01:11:39] Speaker 06:
But I'm referring to this element of the case.

[01:11:42] Speaker 06:
the Mills and Clinton component of it.

[01:11:49] Speaker 06:
Is this part of the case moot?

[01:11:51] Speaker 03:
Well, let me say a couple of things about that.

[01:11:53] Speaker 03:
As the court knows, we've not taken a position on that in this court.

[01:11:57] Speaker 03:
We've not asked you to issue the writ of mandamus and we've not sought one ourselves.

[01:12:02] Speaker 03:
It does strike us that mootness is a strange rubric for that, I think as Judge Pillard was alluding to earlier.

[01:12:08] Speaker 03:
The Department of Justice in District Court made general arguments about how discovery is not needed in this FOIA case and that the next step that should happen here is that we should file a second motion for summary judgment, file another declaration in which we explain all of the searches we've done and why they're adequate and why we're entitled to summary judgment.

[01:12:28] Speaker 03:
Now, in the course of making that argument, we made general arguments about how

[01:12:33] Speaker 03:
further discovery was not relevant, we did not address the specific depositions at issue here.

[01:12:38] Speaker 07:
In fact, we deferred to private counsel on that question, and that's why we've not... You did, Mr. Freeman, argue that the case was moved with respect to these petitioners in your filing, docket number 133, in the district court.

[01:12:54] Speaker 03:
No, that's correct.

[01:12:55] Speaker 03:
We argued that there was no more, the argument there was that there was no more controversy with respect to the Secretary's state of mind.

[01:13:05] Speaker 07:
Right.

[01:13:05] Speaker 07:
There's no longer any live controversy to which these depositions are relevant.

[01:13:10] Speaker 07:
So it's kind of sounding in mootness, but also blending it with relevance.

[01:13:15] Speaker 00:
Right.

[01:13:15] Speaker 07:
And in your view, in terms of getting it over with, was like, okay, go ahead, do whatever

[01:13:20] Speaker 07:
different list depositions and then let us get to summary judgment where we can file a declaration and say what further we've done since the last declaration.

[01:13:29] Speaker 03:
That's right, Your Honor.

[01:13:30] Speaker 03:
I mean, one way to look at it is from the perspective of the Secretary and from the petitioners here, the March 2nd order was, you know, first order in which they were required to be subjected to discovery.

[01:13:42] Speaker 03:
From the government's perspective, this case and many others have been going on for

[01:13:45] Speaker 03:
six or seven years.

[01:13:46] Speaker 03:
There's been a lot of discovery to which we objected, but that's all water under the bridge now.

[01:13:50] Speaker 03:
It's happened.

[01:13:51] Speaker 03:
And in our view, the best way forward is that as we told the district court in the most recent hearing, we would just like an opportunity to file a motion for summary judgment.

[01:13:59] Speaker 06:
Are there responsive records that the state has not yet provided to judicial watch?

[01:14:05] Speaker 03:
Not to my knowledge, Your Honor.

[01:14:07] Speaker 03:
At the time of our motion for summary judgment in July 2015, there were five responsive

[01:14:14] Speaker 03:
records.

[01:14:15] Speaker 03:
In the intervening years, we've identified a group more.

[01:14:20] Speaker 03:
I believe the current total is something like 19.

[01:14:23] Speaker 03:
The additional documents came from additional searches voluntarily conducted by the State Department of, for example, emails was returned by Ms.

[01:14:32] Speaker 03:
Mills to the State Department.

[01:14:35] Speaker 03:
But to my knowledge, all of the responsive records have been identified to

[01:14:39] Speaker 03:
to judicial watch.

[01:14:40] Speaker 03:
And of course, the way this normally works in FOIA cases, we would then file a motion for summary judgment and we would attach a declaration, a detailed, non-generic declaration that explains the searches that we've done and why we believe we've conducted in good faith a search reasonably calculated to identify the response of records.

[01:14:59] Speaker 06:
You've heard your friend Ms.

[01:15:01] Speaker 06:
Cook's argument about why

[01:15:05] Speaker 06:
she believes the search is not that adequate.

[01:15:08] Speaker 06:
In this case, there's a live controversy.

[01:15:12] Speaker 06:
What is your response to that?

[01:15:15] Speaker 03:
I guess our response to that, Your Honor, is we've not asked this court to do anything about that.

[01:15:20] Speaker 03:
In our view, we'd just like to join issue with that in a motion for summary judgment in district court.

[01:15:24] Speaker 03:
And we do have issues, of course, with what she said, but our view is that that's a matter for the district court to decide in the first instance.

[01:15:31] Speaker 07:
To the extent that it's relevant on this petition, for example, she's saying that there were 30 new emails.

[01:15:39] Speaker 07:
My understanding of the public record is that those weren't new and in fact were in the larger body of Clinton return to emails that the State Department did already search in this case.

[01:15:51] Speaker 07:
Is that your understanding?

[01:15:54] Speaker 03:
Let me say a few things about that, Your Honor.

[01:15:56] Speaker 03:
In general, that's my understanding with a significant caveat.

[01:15:59] Speaker 03:
So as you noted, that's not in the record of this case.

[01:16:03] Speaker 03:
There was a filing made by the Department of Justice, as Mr. Bennett noted, in the separate FOIA case pending in front of Judge Walton.

[01:16:11] Speaker 03:
That's number 122034, in which we explained that... You mean Mr. Kendall?

[01:16:17] Speaker 03:
Sorry, Mr. Kendall, excuse me.

[01:16:19] Speaker 03:
Mr. Kendall made earlier in which we explained that these

[01:16:24] Speaker 03:
these emails always had been in the possession of the State Department.

[01:16:28] Speaker 03:
Now, it doesn't follow that they were necessarily searched in the initial searches conducted by the State Department in this case.

[01:16:33] Speaker 03:
And that's because of the scope of this particular FOIA request.

[01:16:37] Speaker 03:
The FOIA request is not to the State Department as a whole.

[01:16:40] Speaker 03:
It's to the Office of the Secretary.

[01:16:42] Speaker 03:
And as our declarations in July 2015 made clear, we searched the relevant

[01:16:49] Speaker 03:
electronic databases in the Office of the Secretary and identify to those document custodians or email custodians most likely to have records responsive to this FOIA request, search them.

[01:16:59] Speaker 03:
And we argued to the district court that that was an inadequate search.

[01:17:04] Speaker 03:
Now, we're past that.

[01:17:05] Speaker 03:
But the fact that emails may be in the State Department somewhere doesn't mean that they would have been normally searched in response to a records request or a FOIA request directed to the Office of the Secretary.

[01:17:18] Speaker 07:
So they were subject to whatever rubric you were applying, both office, database, and search terms.

[01:17:27] Speaker 07:
But because they fell outside of the rubric that is not challenged as overly narrow in this case, they weren't, as you say, technically searched.

[01:17:37] Speaker 03:
That's my current understanding, Your Honor.

[01:17:39] Speaker 03:
I do want to be clear that we are still investigating so that we can provide the

[01:17:45] Speaker 03:
detailed affidavit that is required to move for summary judgment in a FOIA case.

[01:17:51] Speaker 03:
And our intent would be if it is, if it, when it comes time for a summary judgment motion in district court, if these 30, I think it's actually something like 24 emails remain relevant, even though as noted, they're not responsive, that at that, at that point, we would provide a detailed declaration in which we explain where they come from, where they came from and how it came to be that they were searched finally.

[01:18:14] Speaker 07:
And the State Department believes that it has a sufficient record on which to determine whether its search was adequate?

[01:18:23] Speaker 03:
Yes, we believe we're entitled to summary judgment, but again, we're not asking this court to do anything about that.

[01:18:28] Speaker 06:
I appreciate that.

[01:18:30] Speaker 06:
Mr. Freeman, you've written that the government's decision not to seek mandamus

[01:18:36] Speaker 06:
and I'm quoting from your response at 3, quote, reflects the government's consideration of the totality of the circumstances in this unique case, end of quote.

[01:18:48] Speaker 06:
What are the circumstances to which you're referring there?

[01:18:51] Speaker 03:
Sure.

[01:18:52] Speaker 03:
I mean, I obviously can't get into privileged matters, but there are a few things I can say.

[01:18:55] Speaker 03:
I mean, from, as I started to say earlier, from Secretary Clinton's perspective, the March 2nd order, you know, was the first time that she was required to

[01:19:06] Speaker 03:
appear and give testimony in this case.

[01:19:07] Speaker 03:
From the governor's perspective, this has been going on for a long time.

[01:19:10] Speaker 03:
There's a lot of water under the bridge.

[01:19:12] Speaker 03:
There's a lot of discovery already.

[01:19:13] Speaker 03:
But that discovery is done.

[01:19:15] Speaker 03:
The burdens fell on us, and we shouldered them.

[01:19:18] Speaker 03:
And in our judgment, the best way forward is just to move to summary judgment.

[01:19:23] Speaker 03:
The other point is that, look, there's been a lot of discussion of the so-called apex doctrine.

[01:19:28] Speaker 03:
I've never thought of it in terms of that name.

[01:19:30] Speaker 03:
It's just the set of cases that establish that it is an appropriate use

[01:19:36] Speaker 03:
of mandamus to vindicate the principles described by the Supreme Court in the Morgan case.

[01:19:41] Speaker 03:
Now, the government is very protective of that line of cases.

[01:19:45] Speaker 03:
We are aware that we have built up over time, in this circuit and in others, a substantial body of case law that unearthed the benefit of the executive branch by establishing the appropriateness of the use of mandamus in those circumstances.

[01:19:58] Speaker 03:
Now, we've built that body of case law by picking our fights, by choosing the fights that we take carefully.

[01:20:05] Speaker 03:
without again representing anything about specific deliberations in this case, we take very seriously the decision about when to come to this court and ask the court to issue the extraordinary writ of mandamus.

[01:20:17] Speaker 03:
And we chose, in the interest of the executive branch, balancing the pros and cons not to do so here.

[01:20:24] Speaker 06:
So let me circle back to something I asked you before.

[01:20:28] Speaker 06:
I want to make sure that I understand.

[01:20:30] Speaker 06:
When I asked you whether there were more responsive documents,

[01:20:34] Speaker 06:
It seemed to me you indicated that you weren't sure, that maybe there are.

[01:20:40] Speaker 06:
Maybe there are.

[01:20:40] Speaker 06:
Maybe there are.

[01:20:42] Speaker 06:
That puzzles me.

[01:20:43] Speaker 06:
This case has been going on for five and a half years.

[01:20:47] Speaker 06:
Why is there uncertainty on this fundamental point?

[01:20:52] Speaker 03:
No, I'm sorry.

[01:20:52] Speaker 03:
Let me be very, very clear about that.

[01:20:55] Speaker 03:
When I said I wasn't sure, what I meant was,

[01:20:57] Speaker 03:
I'm I'm confident that the State Department has conducted an adequate indeed more than adequate search in this case and has identified all of the records that we believe are responsive before a request.

[01:21:07] Speaker 03:
The uncertainty in my answer was only whether we have actually given those documents to

[01:21:12] Speaker 03:
Judicial Watch already or whether we have identified them for redaction and told them that they will receive non exempt portions of them when we get to the motion for summary judgment.

[01:21:21] Speaker 03:
That's just a detail in terms of staging that I'm not I'm not moment sure of the answer to but but the department's view is that we've conducted an adequate search discharged our

[01:21:33] Speaker 03:
responsibilities under FOIA, we've identified the responsive records in that search, and that we believe we should be entitled to file a motion for summary judgment and would prevail when we filed one, or would be entitled to prevail.

[01:21:46] Speaker 07:
So are you talking about the five, the underlying documents that were long ago identified, or are you talking about something else when you say there might be documents that are still under a process of redaction?

[01:22:02] Speaker 03:
I'm sorry if I was unclear about this.

[01:22:04] Speaker 03:
In the time since July 2015, additional responsive documents have been identified through searches voluntarily conducted by the State Department.

[01:22:13] Speaker 03:
I believe we're up to a total of about 19 now.

[01:22:16] Speaker 03:
And it sort of depends on how you count because, you know, it's an email thread with an additional thanks on top of a new document.

[01:22:23] Speaker 03:
I mean, that's the sort of, that's the ambiguity in the numbers.

[01:22:26] Speaker 03:
But we've identified every document through additional searches such as

[01:22:30] Speaker 03:
Um, emails returned by Ms.

[01:22:33] Speaker 03:
Mills to the Department of State.

[01:22:36] Speaker 03:
We, through additional searches of those records, in an abundance of caution, just in an interest of putting this all behind us, we identified additional responsive documents and we've identified those.

[01:22:46] Speaker 03:
And we would, if we haven't already, we would provide them to Judicial Watch as part of our production in this case.

[01:22:53] Speaker 03:
But that's it.

[01:22:55] Speaker 03:
And our view is that when it comes time to file a motion for summary judgment that

[01:23:00] Speaker 03:
We hope the district court will grant it because we believe the declaration we will provide in support of that motion will demonstrate that we've conducted an adequate search and met our other responsibilities under the statute.

[01:23:17] Speaker 06:
Any further questions from either of my colleagues?

[01:23:20] Speaker 05:
One question.

[01:23:22] Speaker 05:
Of these 19 or so documents, responsive documents that have been produced,

[01:23:28] Speaker 05:
Have any of those been outside the office of the Secretary?

[01:23:32] Speaker 03:
I apologize, Ron.

[01:23:37] Speaker 03:
I don't know the answer to that question.

[01:23:39] Speaker 03:
One thing that we have done in this case is we have, rather than contesting questions that we could contest, we've just tried to search everything that has come up.

[01:23:50] Speaker 03:
All of the 55,000 pages of documents that were returned by Secretary Clinton to the State Department.

[01:23:57] Speaker 03:
rather than litigate over whether those belonged properly within the scope of the FOIA request or not, we just search them.

[01:24:02] Speaker 03:
The same with the 30 or 24 emails that came back.

[01:24:06] Speaker 03:
Rather than litigate about that question, we just search them.

[01:24:09] Speaker 03:
So it may be if there are documents outside of the Office of the Secretary, and I'm sorry I don't have the answer to that specific question in front of me, but if there are such documents that are responsive, it's because we went beyond what we had to do here in order in an effort to put this case behind us.

[01:24:25] Speaker 06:
I think it was at least twice Ms.

[01:24:28] Speaker 06:
Coco referred to the IRS's reaction to the emails of Ms.

[01:24:36] Speaker 06:
Lerner and contrasted that with the State Department's efforts here.

[01:24:41] Speaker 03:
Do you have a response to that?

[01:24:46] Speaker 06:
As we've argued in district court, we believe we performed an adequate search in this case, more than an adequate search, and we would... What about the specifics that apparently there are only... I think the argument was there were only four correspondents of the secretaries that were questioned, whereas in the Lerner instance, there were many more than that.

[01:25:10] Speaker 03:
Yeah, your honor, as to that question, and again, I know the court understands us, we chose not to ask this court to do anything about any of this.

[01:25:18] Speaker 03:
So we would expect to litigate this question in district court.

[01:25:21] Speaker 03:
But the answer to the question directly is that, in our view, that's a function of the

[01:25:26] Speaker 03:
of the FOIA request edition here.

[01:25:28] Speaker 03:
This was a fairly narrow FOIA request for a very specific set of documents from the Office of the Secretary.

[01:25:35] Speaker 03:
The judicial watch also submitted an identical FOIA request to the U.S.

[01:25:40] Speaker 03:
Mission to the United Nations that produced

[01:25:42] Speaker 03:
1,400 plus pages of responsive documents because Ambassador Rice worked there and not in the Office of the Secretary.

[01:25:50] Speaker 03:
So it could be, and we may well argue this in a motion for summary judgment, that an inadequate search in the context of this FOIA case was one to the available and likely custodians in the Office of the Secretary and that we discharged our FOIA obligations by doing so.

[01:26:07] Speaker 03:
But again, those are all questions that we would

[01:26:09] Speaker 03:
We've chosen just to push forward and litigate in district court.

[01:26:15] Speaker 07:
Mr. Freeman, what's your view about an agency's obligation under FOIA if it is aware that there might be documents, agency records outside of the possession of the agency?

[01:26:36] Speaker 03:
Well, in this court, of course, we've not

[01:26:38] Speaker 03:
taking position on that question.

[01:26:40] Speaker 03:
In our view, the ultimate question, as the court has noted, is the adequacy of the search that we do perform as described in our affidavits.

[01:26:50] Speaker 03:
And if that search, as this court has said, is conducted in good faith and is reasonably calculated to identify the responsive records, then it ought to be sufficient as a matter of law.

[01:27:01] Speaker 07:
And I'm just trying to, I mean, as you know, I, I was trying to understand where, and you know, the district court is coming from and thinking that the intent of the, of secretary Clinton is relevant and just still really trying to get, get clear why it might be.

[01:27:20] Speaker 07:
Um, did you have any, uh,

[01:27:27] Speaker 07:
view on the position about the Kissinger footnote 9 that Ms.

[01:27:31] Speaker 07:
Kakka presented?

[01:27:34] Speaker 07:
Is that the State Department's reading of that case?

[01:27:36] Speaker 07:
Does the State Department believe that it has affirmative obligations to find and recover records that are not in its possession under FOIA?

[01:27:46] Speaker 03:
Your Honor, I think if you look at our filings in district court, you would see that we've not contested that question in this case.

[01:27:53] Speaker 03:
And just as a strategic matter, our view has been

[01:27:56] Speaker 03:
you know, when those documents came back to the State Department, we could have, this is before the CEI case in this court, we could have contested that they were not in the agency's possession at the time the FOIA request came in, and therefore, we have no obligation to search them.

[01:28:13] Speaker 03:
But we've not taken that position.

[01:28:14] Speaker 03:
In fact, we just searched them.

[01:28:16] Speaker 03:
We voluntarily searched them.

[01:28:17] Speaker 03:
We voluntarily searched every set of emails that has come back to us, which Judicial Watch has identified, in an effort just to find whatever

[01:28:26] Speaker 03:
this response to the SOAR request under even the broadest definition and turn it over.

[01:28:29] Speaker 03:
And so we've, although we could have contested the question that you identify, we've chosen essentially to render it irrelevant by just searching.

[01:28:41] Speaker 07:
As I understand Ms.

[01:28:42] Speaker 07:
Kakka's position though, she thinks that there is reason to believe, and maybe the district court also thinks that there is reason to believe that there may be other

[01:28:54] Speaker 07:
individuals in the office of the secretary who also use private email.

[01:29:01] Speaker 07:
And if so, that the district court needs to know about that and that it has grounds under FOIA to authorize discovery into that.

[01:29:13] Speaker 07:
And I take it that's not the

[01:29:15] Speaker 07:
the State Department's understanding of its obligations under this FOIA request?

[01:29:21] Speaker 03:
No, Your Honor.

[01:29:22] Speaker 03:
And, in fact, if you just look at the declaration in support of our motion for summary judgment way back in July 2015, this is document number 19-2 in the district court records, the Hackett Declaration.

[01:29:34] Speaker 03:
We explain there that, in fact, in addition to the records returned from

[01:29:39] Speaker 03:
Secretary Clinton, there were also, we expected a, I believe it's footnote 10 of that declaration, we expected a rolling production of emails from Ms.

[01:29:50] Speaker 03:
Mills and I believe two others who had been in the State Department at the time and it turned out may have used private email.

[01:29:57] Speaker 03:
We asked for those records back and some of the difference between the five documents that my understanding is that some of the difference between the five documents

[01:30:06] Speaker 03:
that were identified as responsive in July 2015 and the now 19 or so are documents that we obtained, we identified by searching emails returned by Ms.

[01:30:17] Speaker 03:
Mills and others to the State Department.

[01:30:19] Speaker 03:
So to the extent, our understanding of it, to the extent there was a dispute about whether there were additional people in the office of the Secretary who had private emails that would be

[01:30:31] Speaker 03:
agency records and would be responsive.

[01:30:32] Speaker 03:
We've asked them to return those records and we've searched them.

[01:30:38] Speaker 07:
And I don't think you took a position there, whether that was a Federal Records Act obligation on the part of the department or a FOIA obligation, and I don't know.

[01:30:48] Speaker 03:
That's correct.

[01:30:49] Speaker 03:
You know, we've just tried

[01:30:50] Speaker 03:
As I said at the outset, our approach to all of these cases from the beginning has just been to get through them.

[01:30:57] Speaker 03:
And all of Secretary Clinton's emails that were returned in December 2014 are now posted on the website.

[01:31:06] Speaker 03:
They're available for anyone to search.

[01:31:08] Speaker 03:
We've just tried to put it all behind us.

[01:31:10] Speaker 03:
And in service of that, there are a lot of questions that we could have litigated or fought over that we just haven't fought over.

[01:31:21] Speaker 03:
But again, I know the court knows this, but I want to be clear.

[01:31:25] Speaker 03:
We chose not to file our own petition for written mandamus in this case.

[01:31:29] Speaker 03:
And for that reason, we've not asked the court to grant the secretary's petition.

[01:31:33] Speaker 03:
We're not taking position on it.

[01:31:38] Speaker 06:
OK.

[01:31:39] Speaker 06:
OK, thank you, Mr. Treanor.

[01:31:43] Speaker 06:
Mr. Kendall, we'll give you back two minutes to rebuttal.

[01:31:57] Speaker 06:
Hello?

[01:32:00] Speaker 06:
Mr. Kendall?

[01:32:01] Speaker 04:
Yes.

[01:32:02] Speaker 06:
Thank you, Your Honor.

[01:32:03] Speaker 06:
Give me two minutes for rebuttal, please.

[01:32:05] Speaker 04:
I'll be brief.

[01:32:07] Speaker 04:
The second question, of course, asked the parties to address is how the material to be covered in the depositions of the two petitioners is relevant to the adequacy of the FOIA searches responsive to the requested issue in this case.

[01:32:20] Speaker 04:
And the short answer is totally irrelevant.

[01:32:23] Speaker 04:
Judge Pillard referred to the status report that the DOJ

[01:32:27] Speaker 04:
filed last August, it's document 133, and the DOJ notes quite pungently that even if the secretary had used a private server with the specific intent of evading FOIA, and she did not, the case would still be moot because Judicial Watch has gotten all the relief it's entitled to under FOIA.

[01:32:49] Speaker 04:
Now Judicial Watch claims it needs these two depositions so that it can get

[01:32:55] Speaker 04:
an order from the district court compelling the State Department to take, quote, further action, close quote.

[01:33:02] Speaker 04:
But it never specifies what that further action might be.

[01:33:06] Speaker 04:
Indeed, it can't because as the Pompeo litigation establishes, there is nothing more the State Department can do.

[01:33:14] Speaker 04:
Now, the short answer is that both petitioners left the State Department in February 2013.

[01:33:22] Speaker 04:
They know nothing whatsoever.

[01:33:24] Speaker 04:
about the searches conducted or about the attempts to settle the case.

[01:33:29] Speaker 04:
But again, I point out that Judicial Watch has deposed a number of individuals about the searches, including two 30B6 depositions of people at the State Department with knowledge of those searches.

[01:33:42] Speaker 04:
So they've got that information already.

[01:33:48] Speaker 04:
Thank you very much.

[01:33:50] Speaker 06:
Okay.

[01:33:50] Speaker 06:
Thank you very much and thank you to all the council for helping us with this matter.

[01:33:58] Speaker 06:
The case is submitted.