A federal court is weighing whether Hillary Clinton’s private server network should be treated as a State Department records system and therefore searched in its entirety by the agency.
Lawyers for Judicial Watch, a conservative watchdog group, pressed Judge Emmet Sullivan Tuesday to allow the court to question Patrick Kennedy, the State Department’s top records official. They suggested Kennedy could certify whether the agency authorized Clinton’s use of a private server.
Judicial Watch’s legal team argued against “relying on former employees’ apparently personal attorneys to decide” which emails should be considered official records in a Freedom of Information Act hearing Tuesday in district court.
State Department attorneys said the argument that Clinton’s email domain should be treated as an official records system was “an incredibly novel legal theory” and discouraged the court from immediately allowing a review of the argument.
The Judicial Watch case was reopened after the discovery of Clinton’s private server, which signaled the existence of additional records that weren’t originally in the State Department’s possession.
State Department officials also announced Tuesday they had uncovered 326 new documents among the private emails of two top aides to Clinton that involved conversations with officials linked to the Clinton Foundation.
In a hearing earlier the same day for a FOIA brought by Citizens United, State Department attorneys said the new records were located after the agency finished digitizing paper copies of private emails provided by Huma Abedin and Cheryl Mills.
The agency’s legal team said the eventual number of emails it plans to give the conservative watchdog group could be “far less” than 326 depending on how many duplicate emails exist, among other factors.
Sullivan, who oversaw the case, praised both sides for being “eminently reasonable.”
Sullivan also presided over the FOIA lawsuit brought by Judicial Watch, and held a hearing in that case immediately after the Citizens United status conference Tuesday.
The public has a right to inspect these important documents in a timely manner and that’s what today’s ruling provides,” David Bossie, president of Citizens United, said after the hearing Tuesday. “If it weren’t for our FOIAs and subsequent lawsuits these records would remain exactly where Hillary Clinton wants them – in the shadows.”
Sullivan has criticized the State Department in the past for its slow response to a number of FOIA requests for records related to the Clinton email network.
Citizens United forced the State Department to admit in court documents that it was withholding dozens of emails in which Cheryl Mills discussed Benghazi.
Several of Clinton’s top aides were forced to turn over private emails to the State Department after the agency was unable to locate all records of official communications in response to various FOIA requests.
Clinton has confirmed in federal court that Abedin used an account on the “clintonemail.com” domain. Mills also turned over emails from her personal inbox, although she did not use an address on Clinton’s private server.
Emails published Monday by the media outlet Gawker indicate Philippe Reines, a former Clinton spokesman, conducted official business on his private account.
In response to the FOIA request filed by Citizens United, the State Department said it could not find any responsive documents among the records of Kris Balderston, another former Clinton aide, raising questions about whether Balderston also maintained a personal account for public affairs.
The State Department has come under fire in recent weeks as dozens of records lawsuits have stalled in the face of mounting pressure to release more emails from Clinton and her top aides.
A FOIA lawsuit brought by Vice News is forcing the agency to publish a substantial batch of Clinton’s emails at the end of every month until Jan. 2016.
That case has exposed the high volume of sensitive material that passed through Clinton’s server network, with 403 emails marked classified before their release so far.
Inspectors general for the intelligence community and the State Department have predicted hundreds of emails within the 30,000 Clinton provided will be designated as classified before the publication process is completed.
