http://thehill.com/policy/national-security/252651-judge-poised-to-order-search-for-clinton-email-backups By Julian Hattem - 09/03/15 11:21 AM EDT
A federal judge appears willing to order the State Department to question former Secretary of State Hillary Clinton and her lawyer about the possible existence of backup copies of thousands of her personal emails.
The order, which could come by the end of next week, may lead to definitive proof about whether copies exist of the roughly 31,000 emails Clinton claims were personal and deleted from her private server.
That server is now in the hands of the FBI. The new order from Judge Reggie Walton of the U.S. District Court for the D.C. Circuit could determine whether any copies exist, either in the hands of Clinton's lawyer, David Kendall, or with the private company hired to manage Clinton's server, Platte River Networks.
On Thursday, Walton said he would consider draft language on the order from Judicial Watch, a conservative legal organization that has filed lawsuits under the Freedom of Information Act to obtain emails from Clinton's time in office.
“I’ll entertain whatever you submit,” Walton said, while noting that State Department lawyers will also have time to respond.
“Before the end of the week I’ll issue an order, I think, as appropriate.”
The intent of the order, he said, would likely be similar to a demand from another judge two weeks ago, demanding that the State Department coordinate with the FBI to see whether it turns up any documents that ought to be handed over.
That order did not tackle the possibility that copies of those records exist with Clinton’s lawyer or elsewhere, but instead gave the FBI 30 days to perform its search before additional demands were made.
Depending on the language that Walton agrees to next week, the new order may speed up the search.
“I believe that a copy exists,” Judicial Watch lawyer Chris Fedeli said on Thursday.
“All they have to do is ask the former secretary, the former secretary’s lawyer,” he added, to determine whether or not those copies are out there.
Government lawyer Elizabeth Shapiro argued that authorities did not know anything about the 31,000 deleted emails, so would have few options to compel they be turned over.
“Documents that are alleged not to exist, it’d be very difficult for us to do anything with respect to them,” she said.
“What he’s suggesting is wild speculation.”
Walton, however, said he was “sympathetic” to Judicial Watch’s concerns.
In defending her use of a personal server earlier this year, Clinton said she deleted the roughly 31,000 emails because they contained “personal” information such as “yoga routines,” “notes to friends” and “my mother’s funeral arrangements.”
The disclosure — which followed the revelation that Clinton relied exclusively on a personal email address routed through a private server while serving as the nation’s top diplomat — roiled the 2016 race for the White House. The growing fallout from Clinton’s email practices has since ensnarled her front-runner campaign for the Democratic presidential nominee and forced Clinton onto her heels.
The concern has only mounted amid news that some of the emails that passed through her unprotected server may have contained classified national security information.
Walton on Thursday said he was “not sure exactly what type of evaluation was made” about those emails.
Still, he worried about the department’s ultimate lack of authority to retrieve information that may or may not otherwise be considered government property, had Clinton not used her private server.
“I just don’t know what else I could do in this case,” he said.
Thursday’s hearing was a part of just one of the more than 30 ongoing lawsuits against the State Department concerning Clinton’s emails.
The workload is taxing department employees, Shapiro said on Thursday.
To cope with the multiple competing cases, the State Department on Wednesday filed a motion to have the differing judges coordinate with their demands.
Hopefully, “it will put some order to what has been a chaotic situation,” Shapiro said.
Walton, however, cautioned that “there may be some reluctance” to combine the cases, given how far many of them have proceeded.
--This report was updated at 12:59 p.m.
