Law & the Courts

Justice Department Declines to Support Blocking Hillary Clinton Deposition

President Barack Obama and Hillary Clinton at a campaign rally in Philadelphia, Pa., November 7, 2016. (Brian Snyder/Reuters)
Far from being political retribution, the move, which came in a FOIA case related to Clinton’s private-server use, applied standard DOJ guidance.

The Justice Department has declined to join former secretary of state Hillary Clinton’s effort to block depositions of both herself and a key aide in a case concerning her use of a private email-server system to conduct Obama administration business.

Though the DOJ’s decision will inevitably be reported as political retribution against President Trump’s 2016 election rival, there is actually nothing much here. The Trump State and Justice Departments have defended the former secretary throughout the suit in question. The government’s refusal to support Clinton’s latest gambit to avoid answering questions under oath is consistent with Justice Department policy and will have no bearing on the outcome of the case.

The depositions of Clinton and Cheryl Mills, Clinton’s State Department chief-of-staff and longtime confidant, were ordered by federal judge Royce Lamberth of the District of Columbia. The case is a Freedom of Information Act (FOIA) suit brought by Judicial Watch, the private-watchdog group. It focuses on talking points the Obama administration generated to guide official public statements following the 2012 jihadist attack in Benghazi, Libya, in which U.S. ambassador J. Christopher Stevens and three other Americans were killed.

In the district court, Clinton was ordered to respond to interrogatories. As the National Law Journal reports, Judge Lamberth became frustrated by her performance:

“The court has considered the numerous times in which Secretary Clinton said she could not recall or remember certain details in her prior interrogatory answers,” Lamberth wrote. “In a deposition, it is more likely that plaintiff’s counsel could use documents and other testimony to attempt to refresh her recollection.” Lamberth added: “The court agrees with Judicial Watch — it is time to hear directly from Secretary Clinton.”

Lamberth concluded that Clinton’s written answers about her email practices “were either incomplete, unhelpful, or cursory at best. Simply put, her responses left many more questions than answers.” Thus, on March 2, he ordered the depositions of Clinton and Mills. Rather than submit, Clinton’s longtime counsel, the Washington law firm of Williams & Connolly, decided to seek an extraordinary remedy in the U.S. Court of Appeals for the D.C. Circuit: a writ of mandamus directing Lamberth to vacate his order.

In FOIA cases, discovery is rarely granted regarding internal government deliberations on policy questions. It is even more unusual for depositions of present and former high-ranking government officials to be ordered.

Consequently, as the Justice Department recounts in a submission recently filed with the appellate court, the State Department (represented in court by the DOJ) joined with Clinton’s counsel in opposing discovery orders throughout the litigation. The DOJ took the position that the only relevant questions were (a) whether the State Department had conducted an adequate search for records that should be disclosed under FOIA, and (b) whether it had produced those records. It argued with due zeal that the answer to both questions was yes. It further defended itself and the State Department from allegations of bad faith, contending, for example, that when it became aware of the Clinton emails, it notified Judicial Watch before the emails became public knowledge.

Given this record of support, Clinton’s legal team obviously hoped the Trump administration would join the mandamus petition. When it took no position, the D.C. Circuit ordered DOJ to advise the court on where it stood. So the Justice Department explained that, while it continues to argue that it was wrong for the lower court to issue discovery orders, including depositions, these errors do not create the kind of dire harm a writ of mandamus is meant to address.

This is the default Justice Department position in mandamus matters. Secretary Clinton is not being singled out. Clearly, if the Justice Department had believed mandamus was warranted, it would have filed a petition. But mandamus is a remedy reserved for egregious errors and abuses of discretion, and the decision to seek mandamus calls for consideration of the totality of the circumstances. On that score, DOJ observes that Clinton’s case does not involve the usual situation in which discovery from a former cabinet official was sought “for the impermissible purpose of probing internal government decisionmaking regarding official policy.” Instead, the unique question presented is whether “a former official’s unusual decision to use a private email server to systematically conduct large volumes of official business” has had an impact on the government’s duty to comply with FOIA.

Generally speaking, moreover, the Justice Department’s practice manual admonishes government lawyers that mandamus is highly unusual, and “should only be used in exceptional circumstances of peculiar emergency or public importance.”

It is hardly unreasonable to conclude that Clinton’s petition did not meet this high bar. Again, Clinton’s petition is not one the government sought to join, much less file on its own. And here, at issue is a former official’s rationale for actions that were not merely unauthorized by the government, but that actually flouted government policies mandating that officials use official government channels to conduct official government business. The Justice Department has nevertheless made it abundantly clear that it believes Judge Lamberth’s discovery orders were improvidently granted. In deciding the petition, the D.C. Circuit will be fully apprised of the government’s position on that, while Clinton’s very capable lawyers will make as good an argument as can be made in favor of mandamus.

The most notable thing about the case is the extreme lengths to which Hillary Clinton is going to avoid answering questions under oath about her email practices — a matter on which she has made a slew of contradictory public statements, some of them proven untrue by the FBI’s criminal investigation. The Justice Department’s decision to take a pass on her latest maneuvering is an unremarkable application of standard DOJ guidance, and it will make no difference to the appellate court’s resolution of the case.

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