- The Washington Times - Tuesday, July 12, 2016

Former Secretary of State Hillary Clinton blamed her aides for bungling her emails, telling a federal court Tuesday that department employees knew she was using a secret account and they should have been the ones to police her.

Mrs. Clinton, through her lawyers, begged the court not to order her to have to testify under oath about her emails, saying she no longer has any of them and she didn’t set the system up to try to thwart open-records laws, so she has little to add to the ongoing Freedom of Information Act lawsuit.

Judicial Watch, a conservative legal group that’s been pursuing Mrs. Clinton’s emails for years, has asked a federal judge to make Mrs. Clinton sit for a sworn deposition so it can get to the bottom of what happened to some 30,000 messages the former secretary refused to turn over to the government.

But David E. Kendall, Mrs. Clinton’s lawyer, said the group is grasping.

“No matter how much discovery Judicial Watch takes, the ultimate relief it seeks — production and search of Secretary Clinton’s clintonemail.com account by either the State Department or Secretary Clinton — is impossible to obtain in this case, as Secretary Clinton does not have possession or control of the equipment that housed that account,” Mr. Kendall wrote.

Nearly two years after she left office Mrs. Clinton did return some 32,000 messages her lawyers determined were official government business. They culled another 30,000 they said weren’t records, and discarded them.

Initially Mrs. Clinton’s aides said her lawyers scrutinized each message, but FBI Director James Comey said that wasn’t true, and that the lawyers instead used keyword searches and looked at message headers to classify records.

The FBI found thousands of messages Mrs. Clinton didn’t turn over but should have, including several that contained classified information.

Mr. Kendall said the FBI now has the server, so Mrs. Clinton can’t be forced to turn that over anyway.

Judicial Watch argues the State Department should reclaim all of Mrs. Clinton’s messages so a government employee can go through them and determine which ones are official records.

Mrs. Kendall said the State Department had that chance back when Mrs. Clinton worked there. He said she made it her “practice” to try to email other department employees on their official accounts, assuming those messages were captured by the official records system.

He did not address the dozens of non-department employees she emailed about official business, but he said if the State Department had concerns about her emails, it should have raised those while she was working there. Instead, the top open-records officials, who were on some of the messages Mrs. Clinton sent and received from her secret account, never raised any concerns, he said.

“Although Secretary Clinton corresponded widely with senior officials at the Department, there is no evidence that anyone expressed concern to Secretary Clinton or her aides about the record-keeping implications of her use of personal email,” Mr. Kendall said.

The lawyer also signaled that Judicial Watch missed its chance to get the documents because it filed its request in 2013, or after Mrs. Clinton left office. At that point, since she took the emails with her, they were no longer under the State Department’s control.

Even now, she can’t be forced to go look back through her messages, Mr. Kendall said.

“That email account, which was hosted on private server equipment, was possessed privately under a claim of right, and has never been the property of or in the possession or control of the State Department,” the lawyer said.

In its own filing Tuesday, the State Department sided with Mrs. Clinton, saying she shouldn’t have to testify.

“With respect to former Secretary Clinton, the record evidence does not demonstrate any intent to thwart FOIA,” the department’s lawyers said.

The State Department has asked the FBI to turn over any of the emails Mrs. Clinton withheld from the government, but which investigators have been able to recover.

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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