Appeals court denies Judicial Watch effort to overturn ruling shooting down Hillary Clinton deposition

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The full appeals court in the nation’s capital rejected Judicial Watch’s request for a rehearing on being allowed to depose Hillary Clinton after a three-judge appeals court panel overturned a district court ruling granting the conservative watchdog the ability to put the 2016 Democratic presidential nominee under oath.

Of the 10 members of the U.S. Court of Appeals for the D.C. Circuit who considered Judicial Watch’s request, no circuit judge said they wanted to rehear the case that a trio of their colleagues had ruled on in August by overturning a March order by a district court judge that had granted a deposition and further discovery in the Freedom of Information Act lawsuit related to Clinton’s improper use of a private email server at the State Department and the 2012 Benghazi terrorist attack.

The judges declining to take up Judicial Watch’s appeal included one George H.W. Bush nominee and three Trump nominees — Judges Gregory Katsas, Neomi Rao, and Justin Walker.

“Upon consideration of respondent’s petition for rehearing en banc, and the absence of a request by any member of the court for a vote, it is ORDERED that the petition be denied,” the D.C. appeals court ruled on Wednesday.

“Clinton protected….” Judicial Watch President Tom Fitton tweeted in response. The ruling, just days before the 2020 election, would seem to put an end to the possibility that Judicial Watch will get to depose Clinton in this case.

The three-judge appeals court panel ruling in August that was not touched on Wednesday said Clinton could dodge a sworn deposition from Judicial Watch after Clinton appealed the order requiring her and her former Chief of Staff, Cheryl Mills, to sit down for testimony.

“The mere suspicion of bad faith on the part of the government cannot be used as a dragnet to authorize voluminous discovery that is irrelevant to the remaining issues in a case,” said the August ruling authored by Obama appointee Judge Robert Wilkins. “The District Court has impermissibly ballooned the scope of its inquiry into allegations of bad faith to encompass a continued probe of Secretary Clinton’s state of mind surrounding actions taken years before the at-issue searches were conducted by the State Department. Secretary Clinton has already answered interrogatories from Judicial Watch on these very questions in the case before Judge Sullivan, explaining the sole reason she used the private account was for convenience.”

Following the August ruling, the Justice Department quickly tried to toss the rest of the Clinton FOIA case at the district court level, arguing that “it is now clear that no further discovery is appropriate, and this Court’s March 2, 2020 Order authorizing the depositions of four additional witnesses should be vacated in its entirety.”

Judicial Watch lawyer Ramona Cotca unsuccessfully appealed to the full appeals court in mid-October, saying, “It is especially important that this misapplication of longstanding Supreme Court and circuit precedent be corrected because the panel’s far reaching decision is already taking effect. State has moved to vacate all remaining discovery based on the panel’s decision. State even seeks to vacate the depositions of two officials who may not have been involved in searching for responsive records but are expected to have knowledge about State’s efforts to shield Clinton’s email practices from its own FOIA officials. Under the panel’s decision, such obviously important, relevant discovery would be disallowed.”

U.S. District Court Judge Royce Lamberth had said in March that “the Court agrees with Judicial Watch — it is time to hear directly from Secretary Clinton” as part of a nearly six-year-long case. The judge listed some remaining questions: “How did she arrive at her belief that her private server emails would be preserved by normal State Department processes for email retention? … Did she realize State was giving ‘no records’ responses to her FOIA requests for emails? … And why did she think that using a private server to conduct State Department business was permissible under the law in the first place?”

Wilkins, who was joined in his August decision by Obama appointee Nina Pillard and George W. Bush appointee Thomas Griffith, said Lamberth was wrong.

“Discovery in FOIA cases is not a punishment, and the district court has no basis to order further inquiry into Secretary Clinton’s state of mind … Especially in light of Judicial Watch’s present access to extensive information responsive to its proposed deposition topics, the deposition of Secretary Clinton, if allowed to proceed, at best seems likely to stray into topics utterly unconnected with the instant FOIA suit, and at worst could be used as a vehicle for harassment or embarrassment,” he wrote.

Judicial Watch wanted to question Clinton and Mills about the talking points for former United Nations Ambassador Susan Rice’s appearances on television shows following the terrorist attack on the U.S. Consulate in Benghazi. Members of Ansar al Sharia launched a coordinated assault on Sept. 11, 2012, killing U.S. Ambassador to Libya Christopher Stevens, foreign service officer Sean Smith, and CIA contractors Tyrone Woods and Glen Doherty. Clinton, Rice, and others incorrectly blamed the attack on a YouTube video.

David Kendall, Clinton’s attorney, who was also appearing for Mills, told the appeals court judges this summer that “the real purpose” of the Judicial Watch deposition efforts “is harassment.” Fitton said earlier this month that “the decision to give Hillary Clinton special protection from having to testify about her emails undermines the rule of law and would eviscerate FOIA.”

The FBI investigated Clinton’s use of the server, hosted in the basement of her home in Chappaqua, New York, while she was secretary of state from 2009 to 2013. Although former FBI Director James Comey found Clinton was “extremely careless” in handling classified emails, no criminal charges were recommended against anyone following the bureau’s “Midyear Exam” investigation. Clinton’s IT team deleted 33,000 supposedly non-work-related emails.

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