- The Washington Times - Thursday, November 3, 2016

Hillary Clinton’s emails may be getting all the attention, but the personal email account of President Obama’s top science adviser is the one creating new legal precedents — and has now sparked a major fight over whether he should have to turn his entire account over to a federal judge for safekeeping.

John P. Holdren, director of the White House’s Office of Science and Technology Policy, says that would be a massive invasion of his privacy, insisting that the few work-related emails he did send from that private account are mixed in with personal messages with his wife and family that detail “the most intimate details of my life.”

Judge Gladys Kessler, however, was leaning toward demanding he turn his messages over, saying during a September hearing that she thought they could be kept safely using the same procedures that stored highly sensitive information in the court’s Guantanamo Bay cases.

Another option, she mused, was to issue a court order requiring Mr. Holdren to preserve his messages.

Either way, Judge Kessler said, the court needed to find a way to make sure Mr. Holdren didn’t flee with his work-related messages after he leaves office.

She didn’t say it, but that was the chief problem with the more prominent case of Mrs. Clinton, who used a secret email account for all of her official business while in the State Department, then took the messages with her upon her departure, effectively shielding them from public view for six years.

The State Department is now fighting dozens of court battles over her emails, and the FBI got involved, recovering thousands of messages Mrs. Clinton never turned over.

Unlike Mrs. Clinton, Mr. Holdren did use an official account. And he says he made it his practice to forward work-related messages from his private account at the Woods Hole Research Center, where he worked previously, to his OSTP account.

He also said in a sworn declaration that he’s willing to promise to maintain the messages himself.

“I will continue preserving those emails on the thumb drives, and will maintain them in a safe, secure and readily accessible location, until final judgment has been entered in this case,” he said.

Judge Kessler at a hearing in October seemed skeptical.

“There is a difference, obviously, between his producing an affidavit and a court order that requires preservation,” she said, telling the government lawyers that she was leaning toward a stronger step.

Legal analysts struggled to think of precedents for ordering the entire email account to be turned over to a court for preservation while the case proceeds. But it’s one strategy judges are having to consider as they plow new ground in the digital age.

“We are in a different technological age, and in light of the acknowledgments, which many of us have known for a long time, that government officials sometimes use personal email accounts to conduct official business, FOIA and the courts have finally caught up to this fact and are acting accordingly, as it should be,” said Mark Zaid, a Washington-based lawyer who is a frequent litigator for Freedom of Information Act requests.

“The message is quite clear to government officials: Either only use official work accounts or be prepared to have your personal accounts reviewed,” Mr. Zaid said.

The case stems from a request by the Competitive Enterprise Institute, which found out Mr. Holdren was still using an account from Woods Hole to conduct government business. The CEI asked to see the emails, but the OSTP refused, saying Mr. Holdren’s account was outside of the agency’s control and couldn’t be searched.

The legal battle has dragged on for years, including a ruling by the U.S. Court of Appeals for the D.C. Circuit that rejected the OSTP’s argument, saying that Mr. Holdren was the agency’s director, so it was illogical to say his own account was outside of his control. The appeals court said the agency needed to search for official records regardless of what account they were on.

Now back in the district court, Judge Kessler is having to grapple with preservation issues as the end of the Obama administration looms.

Mr. Holdren used the Woods Hole address from 2005 up until 2014, including for what he admits were government work-related messages after Jan. 21, 2009, when he started at the White House. When he stopped using that address, he said he moved all of the files to a thumb drive and made a duplicate drive that he’s given to a lawyer.

The CEI, though, says it fears Mr. Holdren may have already deleted government-related emails, and another federal judge looking at a tangential dispute between the CEI and the OSTP wondered whether the White House agency had acted in “bad faith” in meeting its duties under open records laws.

“The agency has certainly been careless in handling records responsive to our FOIA requests in the past,” said Hans Bader, a lawyer for the CEI.

Daniel Schwei, the Justice Department lawyer handling the case for the government and defending Mr. Holdren, countered in court papers that was a different case, and said it dealt with the OSTP, not Mr. Holdren directly.

Mr. Schwei also said Judge Kessler should be wary of forcing Mr. Holdren to give up custody of his emails.

“Regardless of any safeguards placed on the storage or transfer of Dr. Holdren’s personal e-mail account, it would still constitute a significant intrusion on his personal privacy to compel him to deposit the contents of that e-mail account with the court or any other governmental entity, particularly given that the e-mail account was primarily his personal account,” the lawyer wrote.

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