Good Faith or Bad?

A federal judge questions whether the Departments of State and Justice acted in bad faith in handling records requests for Hillary Clinton’s emails as Secretary of State.

Senior U.S. District Judge Royce Lamberth has some harsh words for both the State and Justice Departments in a recent order telling both departments to work out a discovery plan and schedule with the Plaintiff Judicial Watch. (Judicial Watch v U.S. Department of State (U.S.D.C.D.C. Civil Case No. 14-1242, 12/6/18) They are given ten days to submit the plan.

The court indicated once discovery ends, Judge Lamberth will then see if [the court] “can rule out egregious government misconduct…” (Opinion p. 9)

This scathing opinion starts by quoting President Obama’s standard for his new administration’s compliance with the Freedom of Information Act (FOIA) issued on his first day as President. In the new President’s policy, he used words like “openness prevails…act promptly and in a spirit of cooperation…agencies are servants of the public…presumption in favor of disclosure…” etc. (Opinion p. 1)

Sadly the judge notes, “in this case, faced with one of the gravest modern offenses to government transparency, his State and Justice Departments fell far short. So far short that the Court questions, even now, whether they are acting in good faith.” (p. 2) Questions troubling the Court and hanging over these proceedings are, according to Judge Lamberth “Did Hillary Clinton use her private email as Secretary of State to thwart this lofty goal? Was the State Department’s attempt to settle this FOIA case in 2014 an effort to avoid searching—and disclosing the existence of—Clinton’s missing emails? And has State every adequately searched for records i this case?” (p. 2)

The Court goes on to spell out the back and forth between State and Judicial Watch (JW) and Justice and State, and Justice and JW. Then Judge Lamberth summarizes: “At best, State’s attempt to pass-off its deficient search as legally adequate during settlement negotiations was negligence born out of incompetence. At worst, career employees in the State and Justice Departments colluded to scuttle public scrutiny of Clinton, skirt FOIA, and hoodwink this Court.” (p. 3)

Along comes the new Administration’s Justice Department to pick up the baton in defending this FOIA case, and, according to the Court “made things worse…Counsel’s responses strain credulity…chicanery…” (Pp. 3-4.)

In short, this is one federal judge who is clearly very unhappy with State and Justice Departments, leading him to the unusual step of ordering up discovery in a FOIA case. He specified that this discovery is to focus on “whether Clinton used a private email to evade FOIA, whether State’s attempts to settle the case despite knowing the inadequacy of its initial search constituted bad faith, and whether State’s subsequent searches for responsive records have been adequate.” (P. 5)

Judicial Watch v. State Department

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.