In a post yesterday, I related that the presiding judge in the Freedom of Information Act (FOIA) lawsuit over former secretary of state Hillary Clinton’s e-mails had rejected the State Department’s plan to delay disclosure of the e-mails for eight months — i.e., until January 15, 2016. Pursuant to Judge Rudolph Contreras’s order, there will be a “rolling production” of the e-mails. State has been directed to propose a schedule within the next few days.
Kudos to the court for refusing to tolerate State’s ridiculous proposal. Nevertheless, a litigator friend points out to me that even Judge Contreras is being extraordinarily deferential to the government and, derivatively, Mrs. Clinton.
While 55,000 e-mails sounds like a lot, it is not a large volume of documents in the context of present-day litigation. The State Department, moreover, has plenty of lawyers, thanks to its gargantuan taxpayer-funded budget, to throw at the production task.
In both civil and criminal litigation, it is routine to demand or subpoena production of larger document sets within two weeks to a month. Sometimes there might be a reasonable, negotiated extension of a few weeks’ time; but lawyers wouldn’t dare unilaterally pronounce that they will produce the totality of a modest set of documents eight months from now. Judges would not abide it.
Now let’s consider significant additional facts unique to this case. The Hillary e-mails exist precisely because she willfully, in violation of government regulations, operated outside the government’s e-mail system. There are only 55,000 e-mails because she unilaterally and lawlessly destroyed thousands of others. Even when Mrs. Clinton finally produced the e-mails she should never have privately maintained in the first place, she provided paper copies rather than easily transferrable and searchable electronic copies — transparently, to frustrate the capacity of reviewers to scrutinize the e-mails and quickly determine what information in them should already have been disclosed in prior FOIA litigation.
Consequently, the disclosure that should have happened long, long ago has already been delayed for months while the State Department scanned each individual document so that electronic copies could be made — effort and expense that Mrs. Clinton could easily have spared the government and the public. (The claim that the scanning exercise required months to accomplish is absurd. It could easily have been done in a few days if State had wanted or been judicially pressured to do so.)
While we should be pleased that Judge Contreras did not let State get away with its outrageous “we’ll get back to you in eight months” proposal, let’s not make too much of it. Many federal judges would be so provoked by the brazenness with which Mrs. Clinton and the State Department have obstructed the administration of justice that they would have ordered the State Department to produce all the e-mails forthwith. And if such an order met with resistance, there would be very embarrassing hearings to probe the reasons for delay, as well as credible judicial threats of censure or contempt citations for officials found to be holding up the works.