by Tom Fitton –
So, let’s talk about these new State Department documents we released during the Summit. As has been widely reported, we found almost a five-month gap in the emails Madam Hillary reluctantly returned to the State Department last year. But there’s more to the story.
The documents also show that one key State Department official did not want a written record of issues about the Clinton emails. This kind of cover-up speaks to the need for us to continue annually to host the Leadership Summit, which talks about government transparency. The documents also raise new questions about the accuracy of representations made to Judicial Watch, the courts, Congress, and the public by the Obama administration and Clinton.
The documents were produced under court order in a Freedom of Information Act (FOIA) lawsuit Judicial Watch filed on May 6, 2015. The lawsuit was filed after the Obama State Department violated federal law and failed to respond to two separate FOIA requests, including a request for records about the actual production of the email records by Clinton to the State Department. The first batch of documents forced out of the State Department contains the “email gap” revelation in the form of a heavily redacted email from State Department official Eric F. Stein to Margaret P. Grafeld, dated April 21, 2015, with the subject “HRC Emails.” Stein is deputy director of global information systems at the State Department and Grafeld is deputy assistant secretary of global information systems. Stein reports to Grafeld that the “gaps” in Clinton’s emails include:
• Jan. 21 – March 17, 2009 (Received Messages)
• Jan. 21 – April 12, 2009 (Sent Messages)
• Dec. 30, 2012 – Feb. 1, 2013 (Sent Messages)
In addition, so there is no doubt about time frames, Stein notes Clinton’s employment timeline as follows:
• Secretary Hillary Clinton
• Appointed: January 21, 2009
• Entry on Duty: January 21, 2009
• Termination of Appointment: February 1, 2013
The email also contains a chart detailing the first and last emails both sent and received to Clinton’s email address, as documented in the records turned over by Clinton’s lawyers. This chart, information from which is chopped off, reveals a non-state.gov email address Cheryl Mills evidently used to conduct government business. The email address, “email@example.com,” received the last email the State Department currently has from Clinton’s non-state.gov account.
The chart shows a significant email gap lasting 40 days prior to Miguel Rodriguez (with the email address “Miguel_Rodriguez @clinton.senate.gov”) sending Clinton’s account an email on March 18, 2009. Rodriguez worked in the Clinton State Department and is now a private attorney representing Clinton aide and confidante Huma Abedin in Clinton email-related litigation. This “email gap” information was forwarded to other top officials in the State Department, including Under Secretary for Management Patrick Kennedy.
These emails raise questions about whether Clinton told the truth last month when she declared, under penalty of perjury, “I have directed that all of my emails on clintonemail.com in my custody that were or potentially were federal records be provided to the Department of State….” Clinton made this statement in response to a court order Judicial Watch obtained in separate FOIA litigation.
Another State Department email shows that one of the agency’s top officials for records management and public disclosure did not want to create a written record about issues. State Department FOIA official Peggy Grafeld, in an October 20, 2014, email wrote to her colleagues, “Fyi. I’d prefer to discuss, rather than email. Thx.” The State Department redacted details about what caused Grafeld’s desire for secrecy. How do you like that? A FOIA official not wanting to write anything down that can be FOIA’d!
The State Department almost completely redacted several September 25, 2014, “high” importance emails about Clinton’s emails, including information about “earlier conversations and fact finding.”
A February 9, 2015, document, “Secretary of State Hillary Clinton Email Appraisal Report,” describes the emails that Clinton returned in December 2014 “as approximately 60,000 to 70,000 pages of email correspondence printed to paper and stored in twelve bankers boxes.” The “records document major foreign policy issues as well as the administration and operation of the Department and inter-agency activities. They reflect the highest level of decision-making and activity in the Department and contain significant documentation.”
The “Appraisal Report” shows the State Department had concerns that Clinton’s government email correspondence would not be found:
This record series is the only comprehensive set of Secretary Clinton’s email correspondence. Some of Secretary Clinton’s email correspondence may be available elsewhere in the Department either as duplicate copies or scattered among record-keeping systems and other government officials’ email accounts. However, of the sample examined, many of the emails were from Secretary Clinton’s personal email account to official Department email accounts of her staff. Emails originating from Secretary Clinton’s personal email account would only be captured by Department systems when they came to an official Department email account, i.e., they would be captured only in the email accounts of the recipients. Secretary Clinton’s staff no longer work at the Department, and the status of the email accounts of Secretary Clinton’s staff (and other Department recipients) is unknown at this time.
The report confirms Clinton’s alleged personal emails from her non-state.gov account are government records:
This collection contains instances of personal communications. Nevertheless, the fraction of personal communications is small and does not affect the overriding archival value of this collection. This records series meets all of the relevant considerations for archival retention under NARA Directive J 441.
The report next confirms that all of Clinton’s emails are “Federal records.” A section entitled “Record status” states:
This records series meets the statutory definition for Federal records. Recorded information has record status if 1) “made or received by a Federal agency under Federal law or in connection with the transaction of public business” and 2) “preserved or appropriate for preservation.” The sent and received email messages of the Secretary of State used for review, comment, information, or other reason fall under the first part of that definition. As the person holding the highest level job in the Department, any email message maintained by or for the immediate use of the Secretary of State is “appropriate for preservation.” This record series cannot be considered personal papers based on the definition of a record in 44 U.S.C. 3301 or Department policy found in 5 FAM 443.
The report suggests that all of the emails that Clinton returned, including personal emails, are subject to review and retention by the National Archives (NARA). A section titled a “Note On Personal Papers” states:
This record series contains instances of personal communications that relate solely to Secretary Clinton’s personal and private affairs. The Agency Records Officer conducted a page-by-page review of approximately 1,250 pages of received messages for the period March 15, 2010 through April 30, 2010 to determine the prevalence of personal communications in a random sample of material. The Agency Records Officer identified 30 messages (approximately 30-40 pages) in the sample set as solely personal in nature. These messages were interspersed with significant documentation relating to Haiti, Mexico, Israel, Afghanistan, Russia, and South Africa. Since NARA possesses the legal authority to make the final determination of record status under the Federal Records Act Amendments of 2014, all final decisions must be made by NARA at the time of archival accessioning. [Emphasis in original]
The report also confirms that all of Clinton’s emails now in possession of the government, including “personal” emails, are subject to “line by line review” for release under FOIA.
State Department rules “specify that personal records of a departing Presidential Appointee may not be removed from the government until the State Department ‘records officer…’ approves of the removal, a process which ‘generally requires a hands-on examination of the materials,'” as Judicial Watch noted in litigation seeking preservation, recovery, and search of deemed-personal emails that Clinton has not turned over to the State Department, FBI, or Justice Department.
The “Appraisal Report” is at odds with claims by Clinton and the Obama administration that Clinton can delete over 30,000 personal emails from non-state.gov email accounts she used for government business. In fact, the “Appraisal Report” suggests that all of Clinton’s personal emails, including those she’s either “deleted” or is still hiding, are federal records subject to “line by line” review for possible disclosure in response to FOIA and other document requests.
This may seem like a small detail to many, but you should know that Mrs. Clinton hasn’t turned every record over to the government as required by law. Don’t be distracted by Clinton’s and the Obama administration’s use of the word “personal” – it is a distraction from the truth – which is that Mrs. Clinton is continuing to conceal government documents, which I suspect also include classified material.
Sure enough, the documents reveal the State Department raised concerns about classified information in Clinton’s possession back in March. In a March 23, 2015, letter to Clinton attorney David Kendall states, in part:
We understand that Secretary Clinton would like to continue to retain copies of the documents to assist her in responding to congressional and related inquiries regarding the documents and her tenure as head of the Department. The Department has consulted with the National Archives and Records Administration (NARA) and believes that permitting Secretary Clinton continued access to the documents is in the public interest as it will help promote informed discussion…In the event that State Department reviewers determine that any document or documents is/are classified, additional steps will be required to safeguard and protect the information. Please note that if Secretary Clinton wishes to release any document or portion thereof, the Department must approve such release and first review the document for information that may be protected from disclosure for privilege, privacy or other reasons.
Judicial Watch’s discovery of the Clinton “email gap” may take a place in history next to the discovery of the Nixon tapes. The Obama administration and Hillary Clinton have taken their cover-up of the email scandal too far. I suspect that federal courts will want more information, under oath, about the issues raised in these incredible documents.
Judicial Watch has 20 federal lawsuits against the State Department in which the Clinton email issue is implicated. Judicial Watch seeks discovery, and additional requests for court relief are planned.
Again, this Update would be book length if I told you about all the Clinton email developments. You should know that we are winning, but court action and other news happens almost every day. To stay abreast, go to our web site regularly (www.JudicialWatch.org) or track us on Facebook, Twitter, and other social media (I understand that we are now on Instagram!).
I expect big news next week, so until then….
Supreme Court Should End Government Racial Favoritism
“Mend it, don’t end it.”
That’s what the apologists for race-based “affirmative action” said back in the 1990s when the Supreme Court began to rule against explicit quotas in college admissions and government hiring. Leftists on the Supreme Court agreed and, in decisions such as Grutter v. Bollinger, allowed government benefits based upon race to continue to be doled out, albeit in disguised ways.
New litigation before the Supreme Court ought to put an end to this unconstitutional practice. Judicial Watch joined with the Allied Educational Foundation (AEF) to file an amici curiae brief with the U.S. Supreme Court asking it to overturn the U.S. Appeals Court for the Fifth Circuit decision, which allowed the continued practice of denying applicants admission to the University of Texas at Austin (UT) based upon race and ethnicity preferences.
The September 10 Judicial Watch and AEF brief supports the claim of Abigail Noel Fisher, arguing that the raced-based admissions policies at issue here are irrational, destructive and are based upon illegitimate racial theories that have no basis in biology.
The new amici brief states:
The decision by the U.S. Court of Appeals for the Fifth Circuit raises important issues of constitutional law that should be addressed by this Court. In particular, amici are concerned that the Fifth Circuit’s ruling, if allowed to stand, will serve to increase racial polarization and resentment in this country, needlessly perpetuating a destructive focus on “racial” issues and prolonging the misconception that race is a valid or legitimate concept. Amici argue that, ultimately, the only mention of race in the law should be its prohibition. Any divergence from this principle must be extraordinarily narrow, and for remedial purposes only.
Judicial Watch and AEF cite the American Anthropological Association’s position that racial categories only perpetuate misinformation and irrational beliefs about others:
“Race” thus evolved as a worldview, a body of prejudgments that distorts our ideas about human differences and group behavior. Racial beliefs constitute myths about the diversity in the human species and about the abilities and behavior of people homogenized into “racial” categories.
Judicial Watch and AEF make the case that UT’s and the federal government’s use of racial identification is absurd, and can never be “narrowly tailored” under the constitution:
UT makes no effort whatsoever to define the term “Asian,” which just as commonly refers to the four billion human beings who inhabit the largest and most populous continent on Earth as it does to a single “race” of people. It lumps together the two most populous countries on the planet, China and India, each of which has more than a billion people and a multitude of languages, cultures, and religions. It is unclear whether UT’s use of the term “Asian” includes applicants who are or whose ancestors were of full or partial Near or Middle Eastern origin, including persons of full or partial Arab, Armenian, Azerbaijani, Georgian, Kurdish, Persian, or Turkish descent, or whether such applicants are to be considered “White.”
Presumably, to get around the thorny question of figuring out race based upon parentage, biology, and appearance, the UT policy at issue allows applicants to self-identify their race, which is also a flawed process, to distinguish applicants. Do you recall Rachel Dolezal, the NAACP Spokane chapter president who self-identified as “Black” despite apparently having only “White” heritage. Could Ms. Dolezal receive special treatment from UT because she decided to dress and act “Black”? Again, as our brief quite charitably notes:
Answering the question of whether Rachel Dolezal would qualify as “Black” under affirmative action policies (and if not, why not) further exposes the confusion that reliance on “self-identification” can produce.
The amici brief urges the Supreme Court to excise racial considerations from government decision making:
Ultimately, the only way to treat the illegitimate concept of race is to absolutely prohibit its use as a basis for government decisions affecting individuals or groups of individuals. Conveniently, such a prohibition is precisely what the Constitution already requires.
A little background is in order here. The U.S. Supreme Court has already made it clear to the lower court that UT did not make a sincere effort to keep racial considerations in check. Evidently, there are judges and academics in America who have a vested interested in preferential policies.
In 2008, Abigail Fisher, a Texas resident who was denied admission to UT based upon these racial policies, and her former co-plaintiff, Rachel Multer Michalewicz, filed suit against UT, alleging that the university had violated the Equal Protection Clause of the 14th Amendment. In January 2011, after the U.S. Court of Appeals for the Fifth Circuit ruled in favor of UT, Fisher appealed the decision to the U.S. Supreme Court. In a June 2013, 7-1 ruling, the high court vacated the Fifth Circuit’s ruling and ordered it to review the case again.
Despite the Supreme Court’s ruling, however, in July 2014, a Fifth Circuit three-judge panel again upheld the UT race-based admissions policies in a 2-1 decision that suggested that UT (and other colleges and universities) “may use race and ethnicity not only in pursuit of an undefined ‘critical mass’ of diversity, but also ‘in its search for holistic diversity.'”
In November 2014, the full Fifth Circuit declined to rehear the case, prompting Fisher to petition the Supreme Court in February 2015. The Supreme Court granted cert. and is now considering the merits of Fisher’s constitutional claim.
Your JW has a long history with this case, as this is actually the fourth amici brief we have filed with AEF in the Fisher civil rights litigation. Prior briefs are available here, here, and here.
The Fisher case is an opportunity for the Supreme Court to finally put an end to racist affirmative action policies. No government benefits should be doled out according to backwards racial theories that, right now, are causing violence and death.
Let me close by praising Ms. Fisher, who has persistently fought for years to vindicate her rights under the Constitution. She is an American hero.
Judicial Watch Leadership Summit Makes Waves, Breaks News
This past Monday marked our inaugural “Leadership Summit on Washington Corruption and the Transparency Crisis.” We thank those of you who were able attend and look forward to expanding on the forum based on what were able to achieve this first time around. Judge Andrew P. Napolitano, a senior judicial analyst for the Fox News Channel served as our keynote speaker. Napolitano is also the author of eight books on the U.S. Constitution, two of which have been New York Times best-sellers.
Other high-profile speakers included U.S. Congressman Louie Gohmert; Fox News analyst Andy McCarthy; former federal prosecutor Joe diGenova; Steve Bannon, executive chairman of Breitbart News; John Fund, national affairs columnist for National Review Online and a senior editor at The American Spectator; J. Christian Adams, president and general counsel for the Public Interest Legal Foundation; and Sidney Powell, Federal Appeals Court practitioner and author of Licensed to Lie: Exposing Corruption in the Department of Justice.
Two hundred Judicial Watch supporters gathered to get exclusive updates on the latest issues facing our nation. It was wonderful to see so many of our supporters in person. It is an honor that they value our work so much that so many would travel great distances to join us in DC.
It was an exciting day.
At the Summit, we rocked Washington again with our release of new State Department documents that detail a nearly five-month total gap in the emails that former Secretary of State Clinton returned to the State Department last year. I’m pleased I was able to share this news first with our supporters.
Yes, this was a very big week for us. Both the Wall Street Journal and Fox News gave special coverage to our work. Tremendous conference, tremendous results. More below.
Tom Fitton – President
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