by Tom Fitton –
… On Process that Led to Her Mass Email Deletions
Perhaps Hillary Clinton thinks she can run out the clock on our efforts to get to the bottom of her scandalous email schemes. Recall that she is resisting, through an emergency appeal, a court order to us about her emails. (The appellate hearing on her testimony, btw, has been officially set for June 2.)
Now our Judicial Watch attorneys are to file a motion in federal court to compel her to produce a December 2014 after action memorandum created by her personal attorney, Heather Samuelson, that memorializes the search for and processing of Clinton emails in 2014.
It was Samuelson who reviewed Clinton’s State Department emails, and about half of them were deleted.
The filing comes in our FOIA lawsuit that seeks records concerning “talking points or updates on the Benghazi attack” (Judicial Watch v. U.S. Department of State (No. 1:14-cv-01242)). We famously uncovered in 2014 that the “talking points,” which provided the basis for false statements by then-National Security Advisor Susan Rice, were created by the Obama White House. This JW FOIA lawsuit led directly to the disclosure of the Clinton email system in 2015.
In December 2018, U.S. District Judge Royce Lamberth ordered discovery into whether Clinton’s use of a private email server was intended to stymie FOIA; whether the State Department’s intent to settle this case in late 2014 and early 2015 amounted to bad faith; and whether the State Department has adequately searched for records responsive to Judicial Watch’s request. The court also authorized discovery into whether the Benghazi controversy motivated the cover-up of Clinton’s email. The court ruled that the Clinton email system was “one of the gravest modern offenses to government transparency.”
Clinton is resisting producing even a portion of the “after-action” memo, despite an August 22, 2019, ruling by Judge Lamberth that we may ask for the memorandum in our discovery. Clinton alleges that the memo is fully exempt from disclosure under the “attorney work product doctrine.” In an earlier ruling on a similar issue in this litigation, the Court held that “any contemporaneous documents shedding light on the three narrow discovery topics – even documents evincing attorney impressions, conclusions, opinions, and theories – constitute fact work-product” and should be produced.
We explain to the court: “After repeated attempts to resolve this dispute have proven unsuccessful, [Judicial Watch] respectfully requests an order from the Court to compel Secretary Clinton to produce the document … within short order.”
We point out:
This is a rare Freedom of Information Act (FOIA) case in which the Court determined that civil discovery is appropriate. On March 29, 2016, the Court granted [Judicial Watch’s] motion for discovery, holding that “[w] here there is evidence of government wrong-doing and bad faith, as here, limited discovery is appropriate, even though it is exceedingly rare in FOIA cases.”
In our motion we refute Clinton’s claim that the memo is protected by the “attorney work product doctrine.”
Secretary Clinton claims that the after action memo is subject to the attorney work product privilege and exempt from disclosure, but she fails to explain that the memorandum was created in reasonable anticipation of litigation. … She does not assert that it was created due to the litigation here. Neither does she claim that it was created in anticipation of any other specific litigation. Simply put, she does not demonstrate that the after action memo was not created in the normal course of the search and review process …
Second, … the after action memo falls within the category of “contemporaneous documents shedding light on the three narrow discovery topics.” … According to Samuelson’s testimony, the after action memo plainly contains factual information memorializing searches and techniques for retrieving Secretary Clinton’s governmental records.
Clinton’s attorneys also do not explain why her emails were deleted despite the “reasonable anticipation of litigation,” rather than preserved.
In a June 2019 court-ordered deposition to us, Samuelson admitted under oath that she was granted immunity by the U.S. Department of Justice in June 2016. She also revealed that, contrary to what she told the FBI in 2016, she was, in fact, aware that Clinton used a private email account while secretary of state. Samuel’s admission to us that she became aware of Clinton’s non-State.gov emails during her service in the Clinton State Department White House Liaison Office contradicts the notation in the FBI’s May 24, 2016, “302” report on Samuelson’s interview with FBI agents:
Samuelson did not become aware of Clinton’s use of a private email account and server until she was serving as Clinton’s personal attorney.
In 2014, after Clinton left the State Department, Samuelson became Clinton’s personal attorney and was primarily responsible for conducting the review of Clinton emails and sorting out “personal” emails from government emails, which were provided to the State Department under the direction of Cheryl Mills and Clinton lawyer David Kendall. After the emails were provided to State, Clinton, through her lawyers and Platte River Networks, deleted the rest of the “personal” emails from her server, wiping it clean.
Samuelson conducted the review of emails on her laptop, using Clinton server files downloaded from Platte River Networks, which housed the Clinton email server.
Clinton clearly doesn’t want the Court and the American people to know the full truth about her destruction of 33,000 emails. The evidence shows that she knew exactly what she was doing when she hid her emails, took them from the State Department and deleted them. So it is no surprise she is desperate to avoid testifying and turning over what must be a smoking-gun memo on her email deletions.
This is only one facet of our pursuit of the truth about Hillary Clinton’s activities while secretary of state.
On March 2, 2020, Judge Lamberth granted us additional discovery that includes testimony under oath by Clinton and her former Chief of Staff Cheryl Mills regarding Clinton’s emails and Benghazi attack records. In April, we and the State Department, which is represented by Justice Department lawyers, filed responses opposing Clinton’s and Mills’ Writ of Mandamus request to overturn this court order requiring their testimonies.
Also, on April 10, we served a subpoena on Google LLC, which was authorized by the court, demanding that it produce all emails, including metadata, from a Google account believed to contain former Secretary of State Clinton’s emails. Google just produced data to us this week and I’ll be sure to report back to you as soon as our expert team analyzes it, so stay tuned!
Judicial Watch Sues to Stop Maryland
County Giving $5 Million to Illegal Aliens
The Left is using our national health crisis to fulfill its agenda on the sly.
Last month we sued the Governor of California on behalf of two California taxpayers for overstepping his authority and violating federal law when he attempted to go around the California State Legislature by executive action and spend $78 million to provide direct case payments to illegal aliens.
Now we’re taking a similar step in Maryland. We have filed a lawsuit and asked for a temporary restraining order against Montgomery County Executive Marc Elrich and Raymond L. Crowel, director of the county’s Department of Health and Human Services, on behalf of two Montgomery County taxpayers, Sharon Bauer and Richard Jurgena.
The U.S. District Court for the District of Maryland set a hearing for Friday, May 15, on our petition.
We have asked the court to stop the county from expending $5 million of taxpayer funds to provide direct cash assistance to unlawfully present aliens (Bauer, et al, v. Elrich, et al. (No. 482061V)).
We argue that the county council overstepped its authority and violated federal law when, without affirmative state legislative approval, it created the “Emergency Assistance Relief Payment Program” (EARP) to provide cash payments to people who otherwise are ineligible for unemployment insurance due to their unlawful presence in the United States.
On April 15, 2020, County Executive Elrich referred to a soon-to-be-announced initiative to provide at least $5 million in cash payments to illegal aliens. On April 27, Montgomery County announced in a press statement that “[a]pproximately $2.5 million will be disbursed to residents [by the Montgomery County Department of Health and Human Services (DHHS)] and another $2.5 million will be targeted to individuals and families served by nonprofit organizations in the community.”
On April 30, the County Council released a press statement that the program would be paid for out of the Montgomery County General Fund, which, according the County Operating Budget, is comprised entirely of taxpayer monies. The DHHS website specifies that the payments would consist of $500 for single adults, and up to $1,450 per family.
In our complaint we argue:
Under federal law [8 U.S.C. § 1621(a)], unlawfully present aliens generally are ineligible for State or local public benefits.
However, a “State may provide that an alien who is not lawfully present in the United States is eligible for any State or local public benefit … only through the enactment of a State law … which affirmatively provides for such eligibility” [Emphasis added]
…The Maryland General Assembly has not enacted a State law affirmatively granting [Montgomery County officials] the authority to provide cash payments to unlawfully present aliens.
The program targets the payments to illegal aliens:
The Montgomery County DHHS has stated that unlawfully present aliens are ‘eligible to apply for and receive cash payments,’ [and] based on the narrow set of eligibility criteria, unlawfully present aliens will be the primary – if not exclusive – recipients of EARP’s cash payments.
In arguing for a temporary restraining order, we point out:
Based on the face of the Complaint as well as the facts identified above, it is likely [Judicial Watch’s clients] will prevail on the merits. The Maryland General Assembly has not affirmatively enacted a law authorizing Defendants [Montgomery County officials] to provide cash benefits to unlawfully present aliens as part of EARP, as required under 8 U.S.C. § 1621. Nonetheless, Defendants intend to provide such benefits to unlawfully present aliens starting in May 2020. Plaintiffs also can demonstrate that they and all Montgomery County taxpayers will suffer immediate, substantial, and irreparable pecuniary harm as soon as Defendants illegally spend the $5 million of taxpayer monies.
Montgomery County Executive Elrich and the Montgomery County Council have no legal authority on their own to spend taxpayer money for cash payments to illegal aliens.
The coronavirus challenge doesn’t give politicians a pass to violate the law. If they want to give cash payments to illegal aliens, they must be accountable and transparent, and, as federal law requires, pass a state law to do so.
I attended the tele-hearing with the Court the morning. The Court suggested he would rule on the TRO request by the middle of next week. We’ll be sure to let you know what happens next!
New Judicial Watch Court Action to Block Newsome
from Providing Illegal Cash to Illegal Aliens in California
Last week I reported to you that we were seeking a restraining order to keep California Governor Gavin Newsom from handing out $75 million in cash to illegal aliens.
As I noted, that judge issued a bizarre ruling: the governor can go ahead, even though it’s likely illegal.
We’ve taken that to the appeals court in California.
We have filed a petition for Writ of Mandate that would require the trial court to issue a temporary restraining order on Newsom’s plan. Though the lower court said that Judicial Watch taxpayer clients are likely to succeed on the merits (that Governor Newsom has no authority under law to spend the money), there’s more harm to illegal aliens during the coronavirus crisis than there is to California’s 40 million taxpayers and citizens. For those of you interested in the detail, Judicial Watch filed the writ petition in the California Court of Appeal, Second Appellate District, in order to overturn a May 5, 2020 Superior Court of Los Angeles County ruling denying a temporary restraining order sought by Judicial Watch in the case (Crest et al. v. Newsom et al. (No. 20STCV16321)).
Our filing asks the Court of Appeal to command the Superior Court to issue the restraining order against California Governor Gavin Newsom and his Director of the California Department of Social Services Kim Johnson, enjoining them from making what is now an imminent, May 18, 2020 illegal expenditure of $79.8 million of taxpayers’ funds to illegal aliens pending the final determination of the taxpayer action brought by Judicial Watch in the lower court.
On April 29, we filed a lawsuit in the Superior Court of California for the County of Los Angeles on behalf of two California taxpayers, Robin Crest and Howard Myers, asking the court to stop the state from illegally expending more than $75 million of taxpayer funds as direct cash assistance to unlawfully present aliens (Crest et al. v. Newsom et al. (No. 20STCV16321)).
The lawsuit alleges California Governor Gavin Newsom overstepped his authority and violated federal law when, without affirmative state legislative approval, he took executive action to create the “Disaster Relief Assistance for Immigrants Project” and to provide cash benefits to illegal aliens who otherwise are ineligible for state or federal insurance or other benefits due to their unlawful presence in the United States. On May 5, we filed an application for a temporary restraining order in the case to prevent Newsom and Johnson from unlawfully spending any of the $75 million slated for direct cash benefits or the $4.8 million earmarked for the administrative costs of having community based organizations distribute the money to unlawfully present aliens under guarantees of privacy and state secrecy.
It is astonishing that any court would allow government officials to ignore the law and spend tax money with no legal authority. The lower court essentially acknowledged Governor Newsom has no legal authority to spend state taxpayer money for cash payments to illegal aliens. And the circumstances are very troubling. The Court of Appeal should overturn the lower court’s manifest error.