Williams & Connolly attorney David Kendall, left, enters the hearing room with former Secretary of State Hillary Clinton, standing right, during a House hearing of the Select Committee on Benghazi, on Oct. 22, 2015. (Photo: Mike Sacks/ALM)
Hillary Clinton’s longtime personal lawyer David Kendall urged a federal judge on Monday to shield the presumptive Democratic presidential nominee from efforts to question her under oath about her private email server.
Appearing in Washington federal district court, Kendall, of counsel at Williams & Connolly, insisted that the question of whether Clinton used the server to deliberately thwart federal public records laws has been repeatedly asked and answered. Clinton has addressed it, said Kendall, as has FBI Director James Comey in testimony earlier this month about a criminal investigation into the server.
“The public right to know is going to be vindicated here,” Kendall said. He later added that there was “not one scintilla of evidence on the central question of, ‘Is anybody trying to thwart [the Freedom of Information Act].’”
Kendall’s argument came at a hearing in front of U.S. District Judge Emmet Sullivan, who’s presiding over a suit from government watchdog group Judicial Watch seeking records related to Clinton’s email use when she was secretary of state.
Judicial Watch is suing the U.S. Department of State for information about Huma Abedin, a top aide to Clinton who is now a key official in Clinton’s presidential campaign. Sullivan ruled earlier this year that Judicial Watch had a right to investigate whether Clinton’s private email server was used to avoid record-keeping laws.
Kendall, who has represented the Clintons since 1993, argued that Clinton had already stated publicly, as well as to the FBI, that she decided to use the private server out of convenience. He said Clinton would not give a different answer in a deposition.
Kendall also argued that Judicial Watch had access to ample other evidence, including a State Department inspector general’s report, the FBI’s findings and testimony from seven past and present department employees who were deposed this year in the case.
Although he warned lawyers not to read into his questions, the judge on Monday repeatedly asked whether Clinton could answer questions in writing in lieu of testifying in person.
Kendall had mentioned written questions as an alternative in a footnote of a recent brief, but on Monday, the Williams & Connolly lawyer said he did not believe it was appropriate. Regardless of the format, he said, there was no legal justification to question Clinton. A lawyer for Judicial Watch also opposed written questions, arguing that it was less efficient than an in-person deposition.
Michael Bekesha, the Judicial Watch lawyer, also argued on Monday that Clinton was never specifically questioned under oath about her use of the server during her tenure as secretary of state, particularly in the context of compliance with public records laws. He said the questioning would be limited and wouldn’t take more than three hours.
“We’re not on a witch hunt,” Bekesha said.
Courts rarely allow former and current high-level government officials to be forced to answer questions in litigation. Bekesha said, however, that this case presented the “extraordinary” circumstances necessary to overcome the presumption against ordering Clinton to testify.
The FBI closed its investigation into the server earlier this month. Comey said at the time that Clinton and other employees were careless in handling classified information, but he did not recommend criminal charges.
The FBI discovered several thousand additional emails related to government business that Comey said would be turned over to the State Department. Sullivan on Monday pressed Justice Department lawyer Caroline Wolverton to explain why the FBI hadn’t turned over those emails yet. Wolverton said the FBI had to make sure the emails were compatible with the State Department’s computer system, and that they would be produced on a rolling basis, starting with a first batch by the end of the week.
“The court takes seriously the public right to know why Mrs. Clinton used a private email server to conduct government business,” Sullivan said. He said he would rule on the deposition issue “as soon as I can.”