If there is actually anyone on the planet who has any doubts about why Hillary kept a secret email server in her Chappaqua house, guarded by the Secret Service, a quick look at the Justice Department’s response to Judicial Watch’s Freedom of Information request for Hillary’s emails will clear things up. You can read here.
Judicial Watch wants emails related to the Iran sanctions. In defending the State Department for failing to produce and records and not disposing Hillary’s secret emails, the Justice Department makes the case that any documents that are not under their control are not covered by the Freedom of Information Act and, therefore, the State Department has no obligation to search them. Since Hillary — and not the State Department — controlled them, they have no obligation to do anything with them.
The government relied on a U.S. Supreme Court case against Hillary’s newest pal, Henry Kissinger. Kissinger had his secretaries listen in to all of his phone calls and take notes.
Hillary knew that would be their response and that’s precisely why she went to the trouble and expense of creating her own server. The notoriously cheap Clintons, used to the government and rich friends paying their tabs, made a point of leaking that President Clinton paid for the server. That’s a first. But it’s important because, presumably, if the Government paid for it, they could assert control.
Hillary and her lawyers thought of everything. And now the Justice Department is following the script that Hillary anticipated when she set up the secret system in 2009 just before she was sworn in as Secretary of State. She wasn’t taking any chances that some government document could undermine her anticipated presidential campaign.
And so far, it’s working. Here’s what the Justice Department argued to the court:
“FOIA creates no obligation for an agency to search for and produce records that it does not possess and control. See Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 152, 154-55 (1980); Nat’l Sec. Archive v. Archivist of the U.S., 909 F.2d 541, 545 (D.C. Cir. 1990); Competitive Enterprise Institute v. Office of Science and Technology Policy, ___ F. Supp. 2d ___, 2015 WL 967549, at *4-5 (D.D.C. Mar. 3, 2015). It certainly provides no basis for a court to issue a subpoena for such documents.” (Emphasis added.)
That’s what Hillary is counting on.
But now the State Department has the emails that Hillary hand-picked to turn over. So, it’s hard to argue that they don’t have to search at least those documents. Instead, they want to be able to post them all on a web site. Why? That way we will be the ones who have to search through 55,000 pages, not them. If they were required to comply with FOI, they would have to identify the responsive documents. Oh, and by the way, Hillary’s decision to hand over hard copies, instead of electronic files was another ploy to make searching the documents more difficult. There’s no way to do a word search on manual documents. She’s not going to make this one easy. It’s typical Hillary — hide, obfuscate, delay, stretch the legal boundaries while screaming about the rights to keep private emails about your mother’s funeral.
The government’s reliance on the Kissinger case is interesting. Although the Supreme Court recognized that transcripts of Kissinger’s phone calls were official records that were wrongfully removed, it found that only government agencies — and not the press or individuals — could sue for their return. Kissinger had taken the transcripts from the State Department and placed them in a safe on the estate of Nelson Rockefeller. (Conspiracy theorists, take note). Eventually, he gave them to the Library of Congress, which is not covered by the Freedom of Information Act. He signed an agreement barring public access until either 25 years after the donation or 5 years after his death — whatever is later. But just recently, Kissinger agreed that the transcripts and other papers of his can be made public. Even Kissinger finally came around to recognize the public’s right to documents created in the course of official government business. Hillary should follow in his footsteps.
Things are definitely heating up, but it’s just the beginning. Judicial Watch also requested access to Hillary’s server. Last week, the Benghazi Committee subpoenaed the server. There are multiple pending Freedom of Information requests for her emails, And the Benghazi Committee is looking at other people’s emails, too — like Cheryl Mills and Huma Abedin. Stay tuned.