State Department officials are set to release a batch of Hillary Clinton’s private emails Friday amid a contentious court battle over whether the remainder of her records will see the light of day before the Democratic primary begins.
Thanks to a Freedom of Information Act lawsuit filed by Jason Leopold, a reporter for Vice News, the State Department was required to complete the publication of roughly 30,000 Clinton emails by the end of January. A schedule laid out in May by Judge Rudolph Contreras of the U.S. District Court for the District of Columbia gave the agency eight months to review Clinton’s records and publish them in small batches before the Iowa caucus on Feb. 1.
But the number of emails found to contain classified information has surpassed 1,300 and triggered a complicated process of inter-agency review that officials say has slowed the pace of production dramatically.
In court documents filed late last week, the State Department said it discovered in mid-January a stash of 7,254 pages of Clinton’s emails that still needed to be sent to other agencies for review before they could be prepared for publication. Officials called the unprocessed papers an “oversight,” but asked the court for an additional month to consult with other agencies before releasing the documents.
State Department attorneys filed additional papers Thursday evening refuting Leopold’s legal argument from earlier this week, which had suggested the agency had not provided sufficient evidence of the need for an entire month to finish reviewing the last of the Clinton emails.
Agency attorneys dismissed a call to explain in further detail how so many pages of documents were neglected until just before the deadline.
“State believes that the Clinton email team’s time is better spent working to correct the problem and complete production of the Clinton emails than … to investigate an oversight that occurred months ago,” officials wrote in the court filings Thursday evening. The filings indicated many of the remaining emails had already been sent to 18 different federal agencies, with a handful slated for delivery to 12 additional agencies in the coming days.
Judge Contreras’ schedule, to which both Leopold and the State Department agreed late last May, required the government to publish an increasing number of records at the end of every month from June 2015 to Jan. 29.
Friday should have seen the release of the largest batch of Clinton emails to date, according to that original court order. The agency should have prepared roughly 9,900 pages of emails for publication by the end of this month.
A State Department spokesman did not return a request for comment as to how many emails the agency plans to release Friday.
Mark Toner, another State Department spokesman, said Wednesday the agency was still waiting to hear back from the judge on its request for an extension of the final deadline to the end of February, but noted officials would publish what they could by Friday.
State’s request, if granted, would delay the production of the final batch of Clinton emails until after Democratic caucuses and primaries in Iowa, New Hampshire, Nevada and South Carolina.
The contests in Alabama, Arkansas, Colorado, Georgia, Massachusetts, Minnesota, Oklahoma, Tennessee, Texas, Vermont, Virginia and American Samoa could arguably miss out on the impact of the emails as well, given the fact that the State Department would not release thousands of pages of Clinton’s records until hours before the polls opened on March 1, or “Super Tuesday.”
That would leave reporters with little time to comb through the emails and put together stories in time to reach Democratic primary voters in those 11 states.
This week’s missed deadline is certainly not the first time the State Department has tested the limits of the court order in the Clinton email case.
The agency fell more than 1,000 pages behind schedule in July after hitting its target for the first email production at the end of June.
The shortfall came after the intelligence community inspector general raised concerns in mid-July about emails that contained information classified up to top secret.
Those concerns touched off an FBI investigation that resulted in the seizure of Clinton’s private server the following month.
State Department officials argued in court documents filed this summer that, because the sensitive nature of the emails required them to involve intelligence agencies in the review process, they could not hit their mark in July.
Clinton has pointed to that inter-agency review process in her argument that she did not handle information that was considered classified at the time.
She has frequently claimed the controversy is nothing more than a bureaucratic dispute between agencies over what should be marked classified. The State Department has been careful to characterize the emails as “retroactively classified,” meaning they were only upgraded in light of recent circumstances and were not classified when written.
However, State’s top open records official blamed lingering delays in October on the fact that reviewers in the agency’s FOIA office had to have top secret clearance to view the Clinton emails, a requirement that limited hiring ability. His argument in court papers filed that month came as the State Department publicly denied the presence of any top secret information among the former secretary of state’s emails.
The agency also missed its production benchmark at the end of December, when it failed to publish 8,800 pages of Clinton’s emails by the New Year’s Eve deadline. Officials blamed this delay on the holiday schedule.
The State Department made up for the shortfall by releasing 2,900 pages the first week of January. However, the agency stalled the publication of those emails until 1 a.m. after telling reporters they could expect to see the emails posted online hours earlier in the evening of Jan. 7.
Both tranches of emails were stripped of their subject lines and sender and recipient information, complicating the process of reading through the documents.
Critics questioned whether the omissions were an attempt by the State Department to mask potentially damaging emails within the trove of records.
Indeed, an exchange between Clinton and Jake Sullivan, one of her top aides, suggested she asked members of her staff to remove the markings from a classified document and “send it nonsecure.” The email touched off a flurry of speculation that Clinton could be in deeper legal trouble than experts initially thought.
That narrative deepened two weeks later, when a leaked letter from the intelligence community inspector general indicated Clinton may have transmitted information classified above “top secret” on her private server.
The latest delay comes amid questions over how such sensitive material found its way into Clinton’s unsecured inbox. Federal rules require intelligence agencies, such as the CIA or the NSA, to look over records that contain information originating in their offices before the State Department can approve those emails for release.
That process, coupled with a fierce winter storm that temporarily shuttered the government late last week and early this week, will prevent the State Department from publishing the required number of emails Friday, attorneys for the State Department argued.
State Department officials have even used the burden imposed by the Clinton email review process to delay production in unrelated FOIA cases.
In May of last year, the agency asked a judge for a six-month extension in a separate lawsuit over Henry Kissenger’s phone records because most of State’s FOIA office was tied up in the Clinton case. A watchdog group had filed that request in 2001.
The State Department said in court documents filed for the case that FOIA lawsuits against the agency had more than doubled in the wake of the Clinton email scandal, forcing officials to dedicate the bulk of their time to fending off requests for the former secretary of state’s records.
