The State Department asked to halt most of the judges prying into former Secretary Hillary Rodham Clinton’s emails, filing papers Thursday proposing that the cases all be combined into one so that a single judge can oversee the government’s searches and releases.
Admitting it’s “struggling” under the weight of the problem left by Mrs. Clinton’s decision to use her own email account, the State Department warned it might miss the January deadline for turning over all of her emails — and might not be able to process her former aides’ emails either — unless a single judge takes over and decides what they have to do.
“They are struggling to keep up,” Marsha Edney, a Justice Department lawyer handling the case for the State Department told Judge Reggie B. Walton during a hearing on one of 32 separate cases Thursday.
The administration faces the prospect of each of the 17 judges making demands on how and when they do searches. And any one of them could order the department to go back and try to recover the more than 30,000 emails Mrs. Clinton said she deleted as personal correspondence — a prospect neither the Clinton campaign nor the administration would relish.
Instead, the State Department wants a single judge to handle all of the searching and deadlines, saying it would bring “order” to the process.
But Judge Walton said he doubted that would happen, telling department lawyers in court Thursday that he’s already heard talk at the courthouse that there’s a “reluctance” on the part of some of his fellow judges to give up their cases.
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He also said the problem is one of Mrs. Clinton’s own making.
“If this private server had not been used, we wouldn’t be in this situation,” he said.
When she became secretary in 2009, Mrs. Clinton rejected using the regular State Department email system, instead setting up a server at her home in New York and issuing herself and some close confidants accounts on that server. She kept those messages secret until the congressional probe into the 2012 Benghazi terrorist attacks learned about them, and demanded she return the emails, which are official government records.
In December, nearly two years after she left office, she complied. But that means that for nearly six years, the State Department was unable to properly fulfill subpoenas, open-records requests and investigative demands from Congress, thanks to Mrs. Clinton’s unique email arrangement.
The State Department also said a number of her aides were guilty of similar behavior — though it didn’t name them, referring to them instead collectively as “the recently provided documents.”
Anticipating just as much trouble processing those emails as they’ve had with Mrs. Clinton’s, the State Department said a single coordinating judge could smooth much of that out and come up with a unified schedule that takes into account an already overstretched department.
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The request to consolidate is being opposed by a number of those who filed the open-records requests. Meanwhile one of the plaintiffs, Freedom Watch, said it would accept the arrangement but only if the eventual judge was not named to the court by either Mrs. Clinton’s husband or by President Obama, both of whom clearly have ties to Mrs. Clinton.
The State Department also officially reduced the number of pages of emails that can be released from Mrs. Clinton’s files to 52,455. She turned 53,988 pages back to the State Department — in paper form, requiring the department to spend the first five months redigitizing them. The National Archives has since determined that 1,533 of those pages were “entirely personal” and didn’t qualify as federal records.
Mrs. Clinton has said she followed the law as it was written, which gives her the ability to decide which emails are public business and which are purely private. She said she deleted some 30,000 messages she deemed private, and wiped the server clean to prevent them being recovered.
The FBI now has control of the server and flash drives Mrs. Clinton’s lawyer had with the emails on them.
In court Thursday Judicial Watch, which accounts for 16 of the 32 open-records cases, said it’s not convinced that the server was the only place the emails would be. The group asked Judge Walton to demand the department prod Mrs. Clinton to see what other copies may be out there.
Judge Emmet G. Sullivan, acting in another of the cases, has already ordered the State Department to work with the FBI to see what emails can be recovered from the server.
Ms. Edney said she can’t even say there were 30,000 emails deleted, saying she has only press reports to go by on that.
She said asking the government to go out and try to recover potential records it’s not sure even exist is a step too far.
Judge Walton said he was sympathetic to both sides, but said he’s not sure he has the power to order the State Department to take control of Mrs. Clinton’s email systems.
“I just don’t know what else I could do,” he said.
One computer security expert, however, said it’s likely Mrs. Clinton’s emails do still reside on one or more servers, given the way electronic communications work and the fact that she sent emails to so many people.
“Private companies maintain numerous servers and it is highly likely some of those emails are stored somewhere in the world,” said a retired senior intelligence officer who investigated security breaches. He asked not to be named because he still works on intelligence matters.
If Mrs. Clinton, for example, had a running email conversation with one person who then expanded the thread to a 3rd person, and then a 4th, all those “sendings” and “replies” and “replies all” would travel through multiple servers and may be stored there on tape as backup.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
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