Clinton email lawsuit zeroes in on Kennedy, Koh

Clinton email lawsuit zeroes in on Kennedy, Koh

By Josh Gerstein

06/17/16 06:22 PM EDT

A conservative group pressing for more answers about Hillary Clinton's private email set-up is training its fire on two of her former aides: Undersecretary of State for Management Patrick Kennedy and former State Department Legal Adviser Harold Koh.
In a court filing Friday, Judicial Watch complained that Kennedy and Koh were aware of Clinton's use of a private email account, but appear not to have ensured it was searched for records responsive to a Freedom of Information Act request the watchdog group filed in 2012.
"Defendant ... never outright disputes the allegations that senior State Department managers—including two top officials with primary responsibility for records preservation, Legal Advisor Harold Koh and Under Secretary for Management Patrick Kennedy—knew that Secretary Clinton used the non-state.gov 'clintonemail' records system for government business, nor that they knew that litigation seeking documents from those records was pending in this Court," Judicial Watch attorney Chris Federal wrote.
"Nor does Defendant claim that these senior State Department managers made any effort to secure those records for review prior to Secretary Clinton’s departure from the State Department (an effort which, if made, failed) ... Discovery should be granted so these unaddressed facts can be determined," Fedeli added.
The filing submitted to U.S. District Court Judge Reggie Walton came in a Freedom of Information Act lawsuit Judicial Watch brought seeking information about a video of President Barack Obama and Clinton the State Department arranged to air in Pakistan. The video was released in September 2012 in the wake of the Benghazi attack and unrest about an anti-Muslim movie trailer posted on YouTube.
The conservative group is asking Walton to order that State select knowledgeable witnesses for depositions about how the agency handled the request and that State be forced to answer written questions about the issue. A judge handling another Judicial Watch FOIA lawsuit related to the Clinton emails has already ordered depositions of several current and former State officials including Kennedy. Yet another judge is considering a request that Clinton be deposed.
The State Department has opposed allowing discovery in all the cases.
Judicial Watch's claim that Kennedy and Koh should have made sure Clinton's private account was searched is based largely on the fact that emails from Clinton's account show both men in correspondence with her at her private "clintonemail.com" address.
In a court filing last week, Justice Department lawyers cited a State Department Office of Inspector General report that found State officials who worked on FOIA matters didn't know about Clinton's private account.
"A thorough investigation has already determined that the lawyers and analysts handling FOIA requests and litigation were not aware of the former Secretary’s email usage," Justice Department attorneys wrote. "Plaintiff should not be permitted to act as a roving investigator to cover all the same ground as the Inspector General."
Kennedy was at the department long before Clinton arrived and is still there now. In addition to exchanging emails with Clinton, he also was copied on a 2011 message about the impact of Clinton's server at her home in Chappaqua, N.Y. being knocked out in a storm. That message talked about the possibility of moving her to an email account on State department servers, something that was never done.
State's filing doesn't squarely address Kennedy's knowledge about the email server, but notes that the IG report "found no evidence that the Secretary requested or obtained guidance or approval to conduct official business via a personal email account on her private server." Kennedy is already scheduled for a deposition on June 29 in one of the group's other e-mail related suits.
Koh arrived at State about five months after Clinton and left shortly before she did in 2013. The Justice Department's filing notes there is "no evidence that Mr. Koh ... was aware that this was the former Secretary's only email account."
Koh, who returned to his professorship at Yale Law School, declined to comment.
Asked Friday if Kennedy had reaction, a State Department spokesperson cited the agency's usual policy of not commenting on matters in litigation.
Walton, an appointee of President George W. Bush, has scheduled a hearing on the matter next Friday.
Josh Gerstein is a senior reporter for POLITICO.