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Note to Trump: Clinton Emails Have Been Released

Ms. Squirrel is ready for the rock to roll

In a gentle interview with Bill O’Reilly, Trump made the following statement:

“When is she going to release her emails?” Trump asked. “Let her release her emails and I’ll release my tax returns immediately.”

Well, then, we should expect to see Trump’s tax returns any moment now.

Clinton released her email server, and thus all her emails, to the FBI months ago. The FBI has been able to discover several thousand deleted emails, which it turned over to the State Department last month. Eventually, emails determined to be State Department records and that aren’t exempt will be released to the public.

But, to all intents and purposes, Hillary Clinton has released all her emails.

If that isn’t sufficient, two separate judges have demanded that the State Department begin releasing emails responsive to their separate FOIA lawsuits in September. Emails responsive to the FOIA requests will begin to be delivered in one case, September 13, and in another, September 30. And additional emails will be delivered on a rolling basis throughout October.

However, we don’t have to wait. Yesterday, the State Department released nine pages of newly discovered emails to Judicial Watch. These emails are related to its search for Benghazi-related material.

The first email was one of the many where Clinton forwarded the email on to her assistant to print. The forwarded email was from Rick Jasculca, CEO of Jasculca Terman and Associates, sent to Huma Abedin. In it, Jasculca wrote:

Huma, I think you know how much I, and our entire family, loves Hillary as a friend. She has long been both a hero and a role model in our world.

But, it took some kind of special courage to step to the plate and take responsibility for what happened in Benghazi.

At a time where there is literally no moral or political courage being demonstrated anywhere, it seems somehow appropriate that, in the same week, both Malala and Hillary stood tall.

I have never been more proud to call Hillary a friend, and I’d appreciate it if you could share that with her.

Much love,

Grandpa Rick

The other emails echo the same theme. I’ll leave it to you all to guess why Judicial Watch hasn’t released this new FOIA production, yet.

If Trump is a man of his word, he should at least begin to turn over some of his tax records. He can start small: release his 2008 tax return now, as a show of good faith. He can then continue to release one new tax return year for every new FOIA email production.

One tax return not being audited now, and additional returns published as Clinton emails are produced. Surely a man of his word would be eager to follow through on his promise.

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Political

The New York Times Invokes its Inner Child

The New York Times published a petulant piece on Hillary Clinton attending a fundraiser, and we discovered why via a tweet from another NYT reporter, Michael Barbaro.

Evidently the New York Times reporters—Amy Chozick and Jonathan Martin—are unhappy that Clinton has not held a press conference. They imply that she makes herself accessible to the wealthy, but not the press or regular folk.

Mr. Trump has pointed to Mrs. Clinton’s noticeably scant schedule of campaign events this summer to suggest she has been hiding from the public. But Mrs. Clinton has been more than accessible to those who reside in some of the country’s most moneyed enclaves and are willing to spend hundreds of thousands of dollars to see her. In the last two weeks of August, Mrs. Clinton raked in roughly $50 million at 22 fund-raising events, averaging around $150,000 an hour, according to a New York Times tally

And while Mrs. Clinton has faced criticism for her failure to hold a news conference for months, she has fielded hundreds of questions from the ultrarich in places like the Hamptons, Martha’s Vineyard, Beverly Hills and Silicon Valley.

The New York Times piece implies that Clinton has spent all of her time at fundraisers—with the unspoken comparison with Donald Trump, media’s Great White Hope.

Press Conference As Entertainment

It is true that Trump has had more press conferences. However, they haven’t been singularly effective or informative. A March press conference played out more like an informercial, one in May was an attack on the Press, and we don’t need to get into the press conference where Trump invited Russian hackers to hack Clinton’s computers.

These press conferences weren’t effective for us…but they were effective for the news media. They were circuses, and stories about them attracted attention. Attention is money in the media biz.

I suspect that’s what the New York Times and other media really want: they want more circuses. They want to trap Clinton in a room and just hammer her: about her email, her foundation, Russian hackers, and even the recent news about Anthony Weiner.

They certainly aren’t interested in the issues, or any of the meticulously detailed proposals that Clinton has provided—two of which, on economics and mental health, she published in August. The same August the New York Times reporters claimed she spent most of her time fundraising.

About Those Fundraisers in August Both Clinton and Trump Attended

In a Presidential race, August is the last month candidates can focus on earning the big bucks necessary to fund both campaigns and advertising for the rest of the race. After August, it’s all campaigning, all the time.

So, yes, Clinton attended a lot of fundraisers in August. However, so did Trump. When he recently canceled events in Nevada, Oregon, and Colorado, he still attended fundraising events scheduled in the same areas.

Clinton also raised over $143 million dollars in August. Yes, that’s a lot of money. Of that money, though, $81 million is going to the DNC and to the state Democratic parties to help with down-ticket races.

We don’t know how much Trump raised in August, but we can take a good guess in how much went to down-ticket races: exactly zero.

Why Not a Motel 6?

The writing that really stood out for me in the Times piece wasn’t the coverage of the fundraising. No, it was the unnecessary and gratuitous aside about the Clinton family’s August living arrangement for the past few years.

Cash-seeking candidates from both parties often rely on August to reach vacationing donors who open their wallets and their palatial homes. In 2012, the Republican presidential nominee, Mitt Romney, brought in close to $4 million over a single weekend from events in the Hamptons. And Mr. Trump, while netting $64 million through online and direct-mail fund-raising in July, also made the trek this summer to the eastern end of Long Island to raise cash.

But Mr. and Mrs. Clinton have occupied a particular place in the social fabric of the enclave. Over the past several summers, they have spent the last two weeks of August in a rented 12,000-square-foot home with a heated pool in East Hampton and in a six-bedroom mansion with a private path to the beach in Sagaponack. This year, the former first couple stayed in the guesthouse of Steven Spielberg’s East Hampton compound built on nine acres overlooking Georgica and Lily Ponds.

Question to Ms. Chozick and Mr. Martin: were you expecting the Clintons to stay at Motel 6? Maybe, sleep in a limo with the Secret Service?

I Want to Know: Are the Toilets in the Trump Plane Gold-Plated?

Since expensive homes seem to offend the delicate sensibilities of our intrepid reporters, I wonder if we can expect to see a similar piece on Donald Trump. For instance, I’ve read that there are real diamonds embedded into the entry door to Trump’s home in Trump Tower.

Why diamonds? Diamonds are insipid. Why not emeralds, or rubies?

And is everything in the Trump plane gold-plated? Does that include the toilets? If so, what’s it like to plant your bum on gold? Does it make you feel special?

And the chairs. How can we forget the chairs?

All this kind of puts that rented six bedroom ‘mansion’ with its own path to the beach in perspective, doesn’t it?

If You Want to be Treated Like Journalists, Act Like Journalists

If the Press really wants more access to Hillary Clinton, it’s simple: all they have to do is act like journalists, not paparazzi.

Why should Clinton hold a press conference if every question is going to be about her email? Or the Clinton Foundation? Or her aide’s personal married life? How no one trusts her, and why is that, or her optics are bad. And nothing she says about these subjects will ever make a difference and no matter how many times she answers the same questions, it will never be enough?

The media can also drop the double standard that’s been an all too real component of its Presidential reporting. It’s spent close to two weeks dropping unfounded accusations about the Clinton Foundation based on mish-mashed cherry-picked data, yet it barely gives a mention to the very real problems Donald Trump’s own foundation has in its donation to the political campaign of Florida’s Pam Bondi.

I won’t even get into equating Anthony Weiner’s bad behavior with more trouble for Clinton (your story again, New York Times); a claim reputable journalists reject.

No, if the media wants a press conference than it needs to look at its own behavior, including indulging in the kind of petty snark forming the core of the New York Times piece covered in this story.

No one expects the media to go easy on Clinton, but it needs to remember one important fact: She is running for the Office of President of the United States. There are more important topics to cover than speculating about what was in one specific email sent by a career State employee to Clinton 7 years ago.

Stop playing games, and get down to business. And you’ll get your conference.

Originally published at Crooks & Liars.

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Documents Political

Clinton Emails: FOIA is not the Federal Records Act

Line of mail boxes

Update

Bloomberg is probably the only news organization expressing the same concerns I have expressed related to this FOIA lawsuit, and the Judge’s decision to allow questioning of Hillary Clinton.

The court said yes again. Here’s where the case — and the court — began to go seriously off track. A FOIA suit seeks information from the government, not from its former officials. The State Department didn’t thwart the law, surely. And even if Clinton wanted to avoid disclosing documents, that’s not an issue for the court in this FOIA case. FOIA provides for no remedies for failure to comply, other than a court order to do so.

Good stuff. But then it turns around and says, well it’s partially Clinton’s fault because she had the server.

No, it’s not Clinton’s fault. Her having private email is no different than Colin Powell having private email and probably 100s of government officials having private email. Having private email is not a valid reason for a Federal Judge violating the parameters of his duty. Or for Judicial Watch making a livelihood out of FOIA requests.

Earlier

I’m still bugged by Judge Emmett Sullivan’s recent decision in one of Judicial Watch’s Freedom of Information Act (FOIA) lawsuits. He should never have allowed Judicial Watch to submit written questions to Clinton.

It’s a given that Clinton will respond with yet another reply of, “It was for convenience”. Tt’s also a waste of everyone’s time. More importantly, Sullivan had no justification acceding to Judicial Watch’s demand. His decision was an abuse of judicial discretion.

There’s a great deal of confusion about what the FOIA really is, and does. Its purpose is to increase government transparency. The mechanism for doing so is a FOIA request. There are rules related to how a request is answered, what material is exempt, and timelines for a response, etc. If you’re an organization like Judicial Watch, which makes a living related to its FOIA requests, you can also sue if the government doesn’t drop everything and respond immediately.

However, the FOIA is only related to a government’s search of existing records. It has nothing to do with ensuring that records are maintained.

Clinton Was Not Involved With the FOIA Request

The only justification for allowing depositions in a FOIA lawsuit is if the Judge believes the answering organization is attempting to thwart a FOIA request. The State Department has already established it didn’t initially search Clinton’s records in response to the original request  because it didn’t have access to those records. When Clinton turned her emails over, State voluntarily agreed to re-open the FOIA lawsuit and search the newly obtained emails.

The State Department is also searching the records recently discovered by the FBI. That it didn’t do so earlier is because the new records were either deleted as personal (or inconsequential) or are records pulled from other people’s email accounts. At no time did State attempt to hide the records, or deliberately thwart an attempt to recover the documents.

To establish that State was not thwarting the FOIA request, the only appropriate people who should have been deposed were those directly related to the FOIA search.

Hillary Clinton is not involved in the State Department’s FOIA search. She’s no longer a State Department employee. And from a FOIA perspective, it doesn’t matter, at all, why she used a personal email server. Not one bit.

Clinton Did Not Violate the Federal Records Act

Now, the storage of records is related to the Federal Records Act. Did Clinton violate the Federal Records Act? No, she didn’t.

She never removed records from the State, as the emails were never stored at State. She used a personal email account, but that’s not a violation of the Act. The only individuals forbidden in using a personal email account are the President and Vice-President and their immediate staff.

And she turned the records over to State as soon as she realized she was supposed to turn the records over to State.

Again, to emphasize the point, why she used a personal email address is irrelevant, even to the Federal Records Act.

It’s All About Optics

Clinton’s lawyers could have appealed Judge Sullivan’s decision, and I strongly suspect they would have won. Of course, they didn’t because everyone would clamor, incessantly, about what does Clinton have to hide, why is she against transparency, and so on.

However, if Judge Sullivan had demanded that Clinton be deposed, then they would have appealed. Judge Sullivan likely knew this, which is why he limited Judicial Watch to written questions.

That Judge Sullivan took a less controversial approach to Judicial Watch’s request doesn’t alter the fact that the law has been abused in this case. Judicial Watch has not once in all of its depositions established that the State Department was deliberately attempting to thwart the FOIA request. There is no justification—none—for not denying Judicial Watch’s obviously politically-motivated request.

Judge Sullivan should never have granted Judicial Watch’s request. By doing so, he’s unnecessarily adding to State’s FOIA burden. And he’s arbitrarily inserting himself into this year’s Presidential election.

All of this is moot. The State Department just filed a status update, stating that it has searched the new records and found nothing related to Judicial Watch’s FOIA request.

Photo by Sam Javanrouth, used under CC License, modified by cropping

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Political

How will FBI Findings impact the Clinton Email FOIA Lawsuits?

Update

I had to link to the piece covering the interview between Andrea Mitchell and former DOJ Matt Miller.

Appreciations to Mr. Miller for calling out Director Comey’s behavior as inappropriate. It was.

Earler

In reading FBI Director’s Comey’s statement I was pleased that the investigation is ended and the FBI has recommended no criminal sanctions. The administrative sanctions he mentioned could consist of demotions, suspensions, or other employment impact, but since Hillary Clinton is no longer a Secretary of State, it doesn’t matter.

It’s likely the DOJ will go along with the FBI finding. So, for those who have stated they know for a fact Hillary Clinton is going to jail, sorry to disappoint, but it isn’t going to happen.

I expected this investigation to focus on the State Department’s handling of email as an agency, but instead, it focused on Hillary Clinton and excluded previous Secretaries of State who also didn’t use State email. Director Comey neglected to mention the fact that a private server doesn’t matter if he is concerned about email being transmitted via mobile devices—security would be compromised just as much if the server was State’s.

He also neglected to separate out those emails that originated with Clinton and those that originated with others. Remember that some of the emails actually contained excerpts from articles at the time, and the article contents were deemed classified or top secret.

As for Director Comey’s chastisement of Hillary Clinton, she’s already accepted that she screwed up with the personal server. I can guarantee you that she’ll not make this mistake, again. But I didn’t like Comey’s tone in his statement. Unless he was willing to broaden his criticism to include Colin Powell, as well as various other cabinet members that have used private email accounts, than his chastisement rings hollow. And more than a little patronizing.

But it’s over and done. Trump will excerpt the bad bits, and mangle them as only he knows how, and we’ll hear about them forever and a day. But I think the majority of Americans are just sick and tired of the topic, so Trump will only hurt himself…something he’s very good at.

The FBI Director’s statement also has, in my opinion, an impact on the FOIA lawsuits. If additional emails were found, they were most likely turned over to State and will be released. But Comey also went into a great deal of explanation as to why they weren’t discovered, and most of that has to do with incorrect searches, and technology. He very carefully noted that the FBI found no evidence of emails being deleted in order to hide their contents.

I should add here that we found no evidence that any of the additional work-related e-mails were intentionally deleted in an effort to conceal them. Our assessment is that, like many e-mail users, Secretary Clinton periodically deleted e-mails or e-mails were purged from the system when devices were changed. Because she was not using a government account—or even a commercial account like Gmail—there was no archiving at all of her e-mails, so it is not surprising that we discovered e-mails that were not on Secretary Clinton’s system in 2014, when she produced the 30,000 e-mails to the State Department.

It could also be that some of the additional work-related e-mails we recovered were among those deleted as “personal” by Secretary Clinton’s lawyers when they reviewed and sorted her e-mails for production in 2014.

The lawyers doing the sorting for Secretary Clinton in 2014 did not individually read the content of all of her e-mails, as we did for those available to us; instead, they relied on header information and used search terms to try to find all work-related e-mails among the reportedly more than 60,000 total e-mails remaining on Secretary Clinton’s personal system in 2014. It is highly likely their search terms missed some work-related e-mails, and that we later found them, for example, in the mailboxes of other officials or in the slack space of a server.

It is also likely that there are other work-related e-mails that they did not produce to State and that we did not find elsewhere, and that are now gone because they deleted all e-mails they did not return to State, and the lawyers cleaned their devices in such a way as to preclude complete forensic recovery.

We have conducted interviews and done technical examination to attempt to understand how that sorting was done by her attorneys. Although we do not have complete visibility because we are not able to fully reconstruct the electronic record of that sorting, we believe our investigation has been sufficient to give us reasonable confidence there was no intentional misconduct in connection with that sorting effort.

The FOIA lawsuits imply that material was held back deliberately, and the FBI has basically cleared all personnel of deliberate malfeasance when it comes to document discovery. The department doesn’t think highly of Clinton’s use of a private email server, State’s email systems and handling of classified information, but that’s not a surprise. State itself has noted that it has problems, as evidenced by the OIG report.

My hope is that the FBI Director’s statement will end these absurd FOIA discovery efforts. Unless Judicial Watch, the instigator of most, wants to depose Director Comey or his agents. In which case all I can say is good luck with that one.

The problem of too many requests for information, the State being badly backlogged on FOIA requests, the large number of lawsuits, and the intolerant arrogance of some of the Judges involved in the lawsuits is costing taxpayers millions of dollars and needs to end.

This all needs to end.

If people don’t want to vote for Hillary Clinton because she used a private email server, fine. I’m glad they found the issue that’s of most importance to them. But large chunks of our federal government are being used by Republicans to attack Clinton rather than focusing on the tasks they should be focused on. And there’s better use for the taxpayer money being spent than to fund Judicial Watch and other conservative organizations’ continuous and never-ending FOIA demands.

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Documents Political

This Week with the Clinton Email Industry

Vulture flying overhead

The Freedom of Information Act was never intended to be a jobs program for lawyers.

Following up on my previous stories regarding the FOIA lawsuit related to the Clinton emails, earlier this month Judicial Watch  deposed Karin Lang, Director of Executive Secretariat Staff at State, and Ambassador Stephen Mull, currently lead coordinator for the implementation of the Iran Nuclear deal for the US.

With Ambassador Mull, we learned that he really can’t remember an email sent in 2011 related to Clinton’s Blackberry. I don’t know why not. Can’t most of us remember every email we sent five years ago?

With Director Lang, we discovered it was the viral photo of Secretary Clinton in sunglasses that sparked a discussion about Clinton’s email, but we don’t know when the discussion occurred, or with whom. She also confirmed that none of the prior Secretaries of State had a government email address, so Secretary Clinton not having one was not unusual.

In addition, in a flurry of filings demanded by Judge Emmet Sullivan, Bryan Pagliano’s lawyer filed a copy of Pagliano’s limited immunity agreement with the DOJ, as well as an argument for him being able to plead the Fifth in a civil lawsuit. The immunity agreement was filed under seal, meaning only the Judge can see it.

To paraphrase Pagliano’s lawyer, pleading the Fifth in a civil lawsuit is not only allowed, but an accepted practice if the witness had concerns about future action related to the topic at hand. Since we already know the FBI is investigating Clinton’s email server—in some regard—the lawyer asserted that Pagliano’s concerns were reasonable.

Judicial Watch filed motions disagreeing with keeping the immunity agreement under seal, as well as Pagliano having the right to plead the Fifth.

The DOJ also filed a motion about keeping the immunity agreement under seal, as it is associated with an ongoing investigation. Pagliano’s lawyers filed a motion concurring with the DOJ. They also gently reminded Judge Sullivan that the only issues pending are whether Pagliano’s deposition is videotaped and if the DOJ immunity agreement is kept sealed. Pagliaono’s right to invoke the Fifth is without question, contrary to Judicial Watch’s attempts to compel Pagliano’s testimony.

Judge Sullivan agreed, for the most part, with Pagliano. He denied Pagliano’s request not to videotape the deposition, probably because all of the videotapes are being kept confidential. But he granted Pagliano’s request to keep the immunity letter under seal. That Pagliano can plead the Fifth is a given.

Now, all of that’s behind Door Number One.

Behind Door Number Two…Another Judicial Watch Lawsuit Against State

I noticed that Judicial Watch’s filings for this case have a sort of breathless quality to them. And no wonder. While it was busy filing motions in the Honorable Judge Emmet Sullivan’s court, it was also filing motions for another FOIA lawsuit against State in another court, under the Honorable Judge Royce Lamberth.

In that case, which is based on an original FOIA request for information related to Benghazi talking points, State is exerting a greater deal of pushback against Judicial Watch’s demand for discovery, because Judicial Watch got too greedy trying to set the discovery parameters:

Now, for the first time, in its proposed reply, Judicial Watch attempts to justify these discovery requests about not just the search for records responsive to this narrow FOIA request, which sought documents within the Office of the Secretary regarding certain talking points about the Benghazi attacks, but for all searches conducted for emails related to the Benghazi attacks. Plaintiff improperly seeks discovery on topics far beyond the scope of its FOIA request, including but not limited to searches for records for the Accountability Review Board, searches in response to congressional inquiries, in preparation of Secretary Clinton’s testimony before Congress, and searches for records responsive to other much broader FOIA requests. The attempt is far too late. Notably, even this belated attempt fails to offer any actual explanation as to the need for discovery ranging far beyond the searches conducted in response to the FOIA request at issue here. Judicial Watch simply asserts, without additional explanation or the necessary attestations, that discovery about unrelated searches “go[es] to the heart” of the Court’s Order.

I believe that “go[es] to the heart” is equivalent to, “We wants it, Precious”.

But Wait…There’s More

The two lawsuits I just described aren’t the only lawsuits Judicial Watch has going related to FOIA requests. According to information in the FOIA Project, and data I pulled from PACER (the federal court system database), Judicial Watch has filed nineteen FOIA lawsuits since January 1. This is in addition to prior year lawsuits still being litigated, like the two I just mentioned. From what I’ve been able to discover, Judicial Watch has at least 17 active FOIA lawsuits in the District of Columbia federal court; the vast majority are related to the Clinton emails.

They must be on first name basis with everyone in the court. Perhaps the Judicial Watch lawyers join the federal court employees in a weekly poker game.

Judicial Watch isn’t the only organization filing these lawsuits. According to one of the motions filed by State in the Lamberth court case, there are currently sixty  FOIA lawsuits pending in court related to the Clinton emails.

Sixty. That’s enough for an entire industry made up of lawyers, legal assistants, law clerks, and FOIA researchers. Let’s hope we never have another former cabinet member run for President: the government couldn’t afford it.

Generations of Workers For One FOIA Request

The Republican National Committee has filed at least seven FOIA lawsuits related to Clinton or the Clinton emails.  The State has worked with the RNC to meet the demands in most of the lawsuits. In one, though, the State asked to have the case dismissed because, according to it, it would take generations of workers in order to meet the demand.

In this particular request, the RNC asked for all emails, to and from, for Cheryl Mills, Jacob Sullivan, Patrick Kennedy, and Bryan Pagliano. Even after the search was limited the government discovered the result would be a burden:

Even after applying the search terms and date limits (to the extent possible given
technological limitations), there remained approximately 450,000 pages of documents that are potentially responsive to the Mills, Sullivan, and Kennedy requests. To be more specific, there are about 100,000 pages potentially responsive to the Mills request, 200,000 pages potentially responsive to the Sullivan request, and 150,000 pages potentially responsive to the Kennedy request. Moreover, the State Department considers the documents responsive to these requests to be complex because they include classified documents and interagency communications that could have to be referred to other agencies for their review.  Given the Department’s current FOIA workload and the complexity of these documents, it can process about 500 pages a month, meaning it would take approximately 16-and-2/3 years to complete the review of the Mills documents, 33-and-1/3 years to finish the review of the Sullivan documents, and 25 years to wrap up the review of the Kennedy documents – or 75 years in total (without considering the requests for the Pagliano records).

Can you imagine having a job whose sole purpose is to process these email requests?

“Hey Sally, how was work yesterday?”

“Pretty good. We had four redactions.”

“Four! Wow, must have been exciting.”

“Yeah, we all went out for a beer after work to celebrate.”

At least Judicial Watch is a pro when it comes to FOIA requests. It knows to keep requests sized so they’re not rejected outright as being a burden. Still, in my opinion, and backed by data, Judicial Watch is the organization putting the most demand on State and other agencies. It’s requests are smaller, but it files new ones on a frequent basis, barely pauses for the agencies involved to process the requests, and then files a lawsuit demanding a response.

How much does this all cost?

Agencies must maintain employees who respond to FOIA requests. The State Department has had to hire at least 50 new employees, just to handle the increased number of FOIA requests. At the end of 2015, it had 21, 759 FOIA requests still pending. This, on top of the 20,000+ FOIA requests it expects to get this year, all under a 15% budget cut from Congress.

In addition, every FOIA lawsuit takes time and money, both in the courts, and in the Department of Justice, which defends the lawsuits.

Most people probably expect these costs. What they may not expect is that the government agencies may also have to foot the bill for the lawyers and legal costs of the FOIA lawsuit plaintiffs.

President George Bush signed the Open Government Act, which amended the FOIA. Among the new additions were provisions making it easier for FOIA lawsuit plaintiffs to obtain legal fees when they “substantially prevail” over the government agency. In addition, a provision also changed the funds for such fees, so that they now came directly out of the agency’s operating budget.

Even without the amendments, organizations could win legal fees for cases against government agencies. In 2004, in a lawsuit against the Department of Commerce, Judicial Watch was awarded close to $900,000. It was only on appeal that some of the award was reversed, because the Judge had awarded Judicial Watch fees for its discovery disputes with third parties who were outside of the DOC’s control.

Discovery disputes like the one related to Bryan Pagliano.

Checking into the Department of Justice records for closed FOIA cases in 2015, for the most part legal fees are not awarded. However, the government agencies still footed the bill for over 2 million in lawyer fees and court costs.

The costs associated with FOIA litigation isn’t in the attorney fees, though. It’s in the court’s time, and the DoJ’s time, and in the agencies time to make additional or expanded FOIA searches. For instance, in 2015, decisions were rendered in 36 Judicial Watch cases, but only one had court and attorney fees awarded.

Keeping Lawyers Gainfully Employed

Judicial Watch isn’t the only organization filing FOIA lawsuits but it is, by far, the most active. From every indication, this is all the organization does.

It discovers a tidbit of information, or hears of something in the newspaper, and then files multiple FOIA requests. In most cases, the agencies respond. If they don’t respond in 2-4 months, though, Judicial Watch files a lawsuit. And why not? It has a staff of lawyers, and it only costs $400.00 to file a lawsuit.

Since the majority of information it seeks is related to Democratic leaders and/or causes, Judicial Watch uses the results of its effort as fund raisers in the conservative community. And it ensures a steady stream of support by how it presents the data it finds.

As an example, the latest Judicial Watch release was related to a lawsuit seeking documents under the FOIA regarding waivers to access web email for officials in the Department of Homeland Security. Judicial Watch presents the data in the worst possible light:

Jeh Johnson and top officials at Homeland Security put the nation’s security at risk by using personal email despite significant security issues,” said Judicial Watch President Tom Fitton. “And we know now security rules were bent and broken to allow many these top Homeland officials to use ‘personal’ emails to conduct government business. This new Obama administration email scandal is just getting started. If the waivers were appropriate, then they wouldn’t have been dropped like a hot potato as soon as they were discovered by the media.

When you look through the emails, though, you realize that personal email access wasn’t a nefarious plot to skirt open records laws, or undermine the security of our nation. It’s just people wanting to access their personal email via web application, because they can’t use their smartphones while on the job.

A mistake in judgement, perhaps. End of the world? Nope.

All of this—the never-ending FOIA requests and multitudes of related lawsuits, in addition to fishing-expedition discovery— is perfectly legal. It may even seem to be a goodness… except the agencies are so tied up responding to organizations like Judicial Watch that other requests, from individuals or smaller organizations without lawyers permanently ensconced at the DC court, end up waiting months, perhaps even years, for a response. And we can’t afford to file a lawsuit in order to ensure our requests go to the top of the heap.

I currently have one request into the DOJ for a lawsuit completely unrelated to Clinton’s emails. I did receive an acknowledgement of my request. However, I would surprised if I receive the documents I’m after before next year. And it’s not because the DOJ is being a slackard. It’s because of organizations that have turned the FOIA into a money machine. Organizations, like Judicial Watch.