UPDATE Reporting from The Hill (btw: I found the link to this The Hill piece in the JW PressRoom - nothing of their own yet)

Decision on Clinton email deposition expected soon

We learn from Rep Matt Salmon (R-AZ) that 43 members of the House are calling for a Special Prosecutor to decide whether or not Clinton should be indicted in light of Lynch not recusing herself. (The video, however, does not touch on today's hearing - see text below).
I REMOVED EMBEDDED VIDEO - it was driving me NUTS! Click through to The Hill link above to watch it there.

From The Hill - Sullivan did not sign off on deposing her today, but may yet:

A federal judge on Monday declined to order the deposition of Hillary Clinton over whether she deliberately thwarted federal record-keeping laws — but did not rule out the possibility that the former secretary of State may yet be forced to testify.

U.S. District Judge Emmet Sullivan said he would issue a ruling “as soon as I can,” prolonging the uncertainty in a protracted legal battle over Clinton’s use of a private email server while in office.

and

But Judicial Watch is not satisfied, arguing that the FBI’s investigation was focused on whether Clinton unlawfully transmitted classified information through the server — not whether she flouted record-keeping laws.

Clinton has answered “very general” questions about her motivation, Judicial Watch attorney Michael Bekesha said. But those questions have only addressed her motivation for setting up the server in the first place and did not cover her thought process for continuing to use it when she became subject to FOIA requests as secretary of State.

Attorney General Loretta Lynch confirmed last week that federal records laws were not within the scope of the FBI’s investigation.

Hat Tip to Alligator Ed for all the work he's done so far on this!

Judicial Watch just added a press release about the hearing today which includes the claim that
"Slowly, but surely, the Clinton email cover up is unraveling:"

It is no surprise that neither Hillary Clinton nor the Obama State Department agrees with our request to depose Mrs. Clinton concerning her exclusive use of her non-state.gov email account to house and send tens of thousands of official emails throughout her entire tenure as secretary of state.

What is notable is that the State Department finally admits that Clinton’s practice of supposedly emailing other State officials using her non-state.gov account was not an “appropriate method of preserving federal records or making them available for searches under FOIA.”

Second, it is both significant and disturbing that Hillary Clinton now asserts a private “claim of right” over her non-state.gov email account, including any of the 55,000 pages of federal records she returned to the State Department. She further claims that these and other emails, including emails that may have contained classified information, have “never been the property of or in the possession or control of the State Department.”

Also important is the difference between the State Department’s and Mrs. Clinton’s most fundamental claims as to why neither agency staff nor Mrs. Clinton should testify.

The State Department claims that no one at the agency really knew anything about Mrs. Clinton’s non-state.gov email system, so there is nothing left to say.

Mrs. Clinton, on the other hand, claims that everyone at the agency knew all about her non-state.gov system, so, once again, there is nothing left to say.

Our lawsuit is forcing more government transparency. Following a prior court order, the State Department asked the FBI for any Clinton emails it recovered. This week the FBI wrote back that it would turn over the emails that Mrs. Clinton had either deleted or held back from the American people.

Emphasis mine.

Here are the documents filed about which the hearing is taking place (all PDFs):
NOTE - I HAVE REMOVED MANY OF THE REFERENCES TO WHERE TESTIMONY IS FOUND FOR READABILITY.

PLAINTIFF’S MOTION FOR PERMISSION TO DEPOSE
HILLARY CLINTON, CLARENCE FINNEY, AND JOHN BENTEL

Here's what they want to know directly from Clinton since no one else has provided this info yet:

A. The purpose for the clintonemail.com system
B. Secretary Clinton’s continued use of the system even though, at times,
it interfered with her job as secretary
C. Secretary Clinton’s claim over the records on the clintonemail.com
system
D. Secretary Clinton’s inventorying of records upon completion of her
tenure as secretary
E. Secretary Clinton’s choice of type of email system to conduct official
government business
F. Mr. Pagliano’s role in creating and operating the clintonemail.com
system

Clarence Finney
The State Department identified Mr. Finney as the Director of Office of Correspondence and Records of the Executive Secretariat (“S/ES-CRM”), which had day-to-day responsibility for records management and research, including conducting and coordinating searches in response to FOIA requests, during Secretary Clinton’s and Ms. Abedin’s tenure. Finney’s responsibilities included determining what searches were to be conducted within the Office of the Secretary in response to FOIA requests. In addition, Mr. Finney’s office was responsible for inventorying or other accounting of Secretary Clinton’s and Ms. Abedin’s emails. As a result, Mr. Finney should have personal knowledge about how Secretary Clinton’s records were managed and how FOIA
requests for Secretary Clinton’s records were processed while she was secretary.

John Bentel
Contrary to Mr. Bentel’s public claims – which were the reason why Plaintiff did not initially seek to depose him – the evidence strongly suggests that Mr. Bentel possesses specific knowledge about Secretary Clinton’s use of the clintonemail.com system to conduct official government business. It also suggests that Mr. Bentel or his staff failed to inform Mr. Finney and others within S/ES-CRM – the office responsible for maintaining the secretary’s records and overseeing searches of those records in response to FOIA requests – that Secretary Clinton was conducting official government business on an unofficial email system. The evidence also suggests, as noted above, that when asked by his staff about Secretary Clinton’s use of a nonstate.gov email account to conduct government business, Mr. Bentel instructed them not to discuss the issue. As a result, obtaining Mr. Bentel’s testimony is essential to determine what he knew, when he knew it, and why he did not share the information with the appropriate State Department officials or employees responsible for responding to FOIA requests.

The response from the State Department:

DEFENDANT’S OPPOSITION TO PLAINTIFF’S
MOTION FOR PERMISSION TO DEPOSE HILLARY CLINTON,
CLARENCE FINNEY, AND JOHN BENTEL (28 pages)

In originally seeking leave to conduct discovery in this Freedom of Information Act (“FOIA”) case, Plaintiff Judicial Watch, Inc., contended that it needed to determine whether “the State Department and its former secretary deliberately thwarted FOIA by creating, using, and concealing” the clintonemail.com system used by former Secretary Clinton to conduct State Department business. In granting discovery, the Court accepted that Plaintiff’s allegation of intent to thwart FOIA “goes directly to the type of circumstance” not addressed by the Supreme Court’s decision in Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136 (1980). May 4, 2016 Mem. and Order at 11 (ECF No. 73). The fundamental question for the discovery authorized by the Court is thus whether there is evidence of intent to thwart FOIA.
(snip)
Plaintiff’s motion should be denied. Plaintiff has not demonstrated a need for additional discovery, which as the Court recognized when it ordered limited discovery in this case, is rare in FOIA cases. May 4, 2016. Plaintiff’s motion presents a selective explanation of the evidence. Contrary to Plaintiff’s vague contention that “important questions remain,” the discovery that Plaintiff itself designed has not revealed a shred of evidence indicating an intent to thwart FOIA. To the contrary, documents that might have been interpreted as reflecting a concern about FOIA have been shown, through sworn testimony, to have a much more innocuous explanation. Nor have any of the other inquiries into former Secretary Clinton’s email practices, conducted by the FBI, the State Department’s Inspector General, and the House Select Committee on Benghazi, discovered any evidence of an intent to thwart FOIA. Plaintiff has an answer to the question it posed; it just does not like it. Plaintiff’s dissatisfaction with the record that it has been able to create is not a valid reason to extend the limited discovery the Court authorized.

State, will, however, provide the emails they receive from Comey when they have them:

As noted above, last Friday, July 8, State sent a letter to Director Comey asking the FBI to provide State with the work-related emails the FBI recovered. July 8 letter from Undersecretary Kennedy to Director Comey. If State obtains additional State Department records, it intends to search them for records responsive to Plaintiff’s request. This has the potential to provide Plaintiff the relief it seeks in this case. (“We’re asking that [the clintonemail.com system of records] be turned over to the State Department so that the State Department can conduct the search it should have conducted originally.”). The Court should therefore, in the alternative, defer ruling on Plaintiff’s request for additional discovery to allow this process to play out, given that it ultimately may render moot Plaintiff’s claims regarding the adequacy of State’s search.

I believe the summary of the following is: you've got too much already, State can't give you what they don't got, and the court doesn't even have jurisdiction to make 'em give anything to ya... and the horse you rode in on!

NON-PARTY HILLARY RODHAM CLINTON’S
OPPOSITION TO PLAINTIFF’S MOTION TO DEPOSE
HILLARY RODHAM CLINTON, CLARENCE FINNEY, AND JOHN BENTEL (187 pages)

... Judicial Watch now has available to it a vast public record on this subject. Secretary Clinton testified publicly about her e-mail before the Benghazi Select Committee on October 22, 2015. The testimony on this topic by Secretary Clinton’s aides as well as other State Department employees to the Select Committee also has been publicly released. In May 2016, the State Department Inspector General issued a report on e-mail records management in the Office of the Secretary, which included an assessment of practices during Secretary Clinton’s tenure. On July 5, 2016, FBI Director James Comey publicly announced the findings of the FBI’s year-long investigation of a security referral from the Intelligence Community Inspector General related to Secretary Clinton’s e-mail. Director Comey later testified for more than four hours on this subject before the House Oversight and Government Reform Committee on July 7, 2016.

Despite this public testimony and the various investigative reports, Judicial Watch claims that it needs to depose Secretary Clinton, a former Cabinet Secretary, about six purportedly unanswered questions. The record, however, already answers those questions or makes clear that Secretary Clinton has no personal knowledge to provide. And many of Judicial Watch’s proposed topics are irrelevant to the issue for which it sought discovery: “whether the State Department and Mrs. Clinton deliberately thwarted FOIA.” Dkt. 48 at 3; Dkt. 51 at 1. Indeed, Judicial Watch ignores that issue altogether in its Motion. That failure is unsurprising, as the FBI concluded after its year-long investigation that Secretary Clinton did not intend to conceal records from the public.

In any event, the discovery requested by Judicial Watch is futile. The ostensible purpose of the requested discovery is to determine whether this Court should compel Secretary Clinton to produce her @clintonemail.com account (including any personal e-mail) from her private e-mail server equipment to the State Department for further searching in response to Judicial Watch’s FOIA request. Even if this Court had authority to issue such unprecedented relief, Secretary Clinton has nothing to produce, as the server equipment used to host her @clintonemail.com account is in the possession of the FBI.

Finally, for the sake of preserving any and all rights, counsel to Secretary Clinton respectfully submit that discovery is unwarranted in this case as a general matter. Under Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136 (1980), this Court lacks jurisdiction to compel disclosure of documents on Secretary Clinton’s private server equipment—irrespective of any alleged intent to “thwart” FOIA—because those documents were outside the State Department’s possession or control when Judicial Watch submitted its FOIA request.

And the legal reasons you can't have 'em is that these records are not AT State and because you waited too long to file your FOIA:

The Supreme Court observed that FOIA “does not obligate agencies to create or retain documents; it only obligates them to provide access to those which it in fact has created and retained.” Id. at 152. The Federal Records Act—not FOIA—governs an agency’s obligation to retain records, “even though the agency’s failure to do so deprives the public of information which might have otherwise been available to it.” Id. As the Court explained, “[i]f the agency is not required to create or to retain records under the FOIA, it is somewhat difficult to determine why the agency is nevertheless required to retrieve documents which have escaped its possession, but which it has not endeavored to recover.” Id. It concluded: “Congress did not mean that an agency improperly withholds a document which has been removed from the possession of the agency prior to the filing of the FOIA request. In such a case, the agency has neither the custody or control necessary to enable it to withhold.” Id. at 150–51. An agency’s “refusal to resort to legal remedies to obtain possession” is not a “withholding” of the record. Id. at 151.

The Court thus held that “a ‘withholding’ must . . . be gauged by the time at which the request is made since there is no FOIA obligation to retain records prior to that request.” Id. at 155 n.9. Applying this standard, the Court readily found that the State Department had not “withheld” Kissinger’s transcriptions because it did not have “possession or control of the documents at the time the requests were received.” Id. at 155. Both the Court of Appeals and this Court have repeatedly applied Kissinger to hold that an agency “withholds” agency records only if the records are in its possession or control at the time a FOIA request is made. See, e.g., Founding Church of Scientology v. Regan, 670 F.2d 1158, 1163–64 (D.C. Cir. 1981) (reversing a district court order compelling agency to retrieve documents transferred to a third party); Piper v. U.S. DOJ, 294 F. Supp. 2d 16, 22 (D.D.C. 2003) (holding that an agency is not required to reconstruct deleted records because “FOIA is triggered by agencies having actual possession of the requested documents”), aff’d per curiam, 222 F. App’x 1 (D.C. Cir. 2007); Judicial Watch, Inc. v. Dep’t of Commerce, 34 F. Supp. 2d 28, 44 (D.D.C. 1998) (“[T]he status of a particular document at the time the FOIA request is submitted determines whether the unreasonable failure to produce that document is an unlawful withholding.”); see also Competitive Enter. Inst., 2016 WL 3606551, at *5 (Srinivasan, J., concurring) (suggesting that an agency does not have possession or control of documents “held by a person unaffiliated with the agency at the time of the request”). Kissinger squarely governs this case. When Judicial Watch submitted its FOIA request in May 2013, Secretary Clinton was not employed by the State Department. Secretary Clinton held her privately owned server equipment under “a claim of right” and later voluntarily provided that equipment to the FBI for a proper purpose. Kissinger, 445 U.S. at 155. Judicial Watch has not offered any colorable argument that the equipment or e-mail account was under the Department’s possession or control at the time of the FOIA request, and the Department has disclaimed that it was. See Lang 30(b)(6) Dep. at 108:21–109:11; Dkt. 97-1, at 5–6. This Court lacks jurisdiction to compel production of Secretary Clinton’s e-mails.

State did not 'thwart' your getting requested records because they did not have them in their possession when you asked for them (Note: nevermind they didn'tyet know they were missing any!)

Judicial Watch has argued that Kissinger is inapplicable when an agency official seeks to thwart FOIA as a general matter. Dkt. 48, at 4–5. Counsel to Secretary Clinton respectfully submit that this reading of Kissinger is incorrect.

In footnote nine of Kissinger, the Supreme Court “raised but did not decide whether the ‘possession or control’ requirement ‘might be displaced in the event that it was shown that an agency official purposefully routed a document out of agency possession in order to circumvent a FOIA request.’” Nat’l Sec. Archive v. Archivist of the U.S., 909 F.2d 541, 546 (D.C. Cir. 1990)(per curiam) (quoting Kissinger, 445 U.S. at 155 n.9). That footnote does not mean that the “possession or control” test is displaced when an agency official removes agency records to prevent their release to future FOIA requesters as a general matter. That reading of the footnote is incompatible with the rest of the Kissinger decision. As Kissinger recognizes, FOIA “does not obligate agencies to create or retain documents.” 445 U.S. at 152; see also Whitaker v. CIA, 31 F. Supp. 3d 23, 46 (D.D.C. 2014) (holding that a failure to retain documents “does not create liability . . . under FOIA”). Except with respect to certain categories of documents not applicable here, an agency’s obligation under FOIA arises only once it receives a FOIA request. See 5 U.S.C. § 552(a)(3)(A). Because FOIA imposes no obligations until receipt of a FOIA request, an agency official cannot “thwart” FOIA by removing agency records before the agency receives a request.

Judicial Watch’s expansive reading of footnote nine also conflicts with the Supreme Court’s decision in U.S. DOJ v. Tax Analysts, 492 U.S. 136 (1989). In that case, the Supreme Court observed that materials are “agency records” for purposes of FOIA only if they are “in the agency’s control at the time the request is made.” Id. at 145–46. Invoking Kissinger footnote nine, the Court explained that disputes about whether an agency controls requested materials could arise where requested materials are “‘purposefully routed . . . out of agency possession in order to circumvent [an impending] FOIA request,’” or are “‘wrongfully removed by an individual after a request is filed.’” Id. at 146 n.6 (quoting Kissinger, 445 U.S. at 155 n.9) (alterations in original).

The Court thus clarified that the question left open by Kissinger is whether the “possession or control” standard should be displaced where an agency official removes materials that are the subject of an “impending” (i.e., imminent) FOIA request. That standard requires a close temporal connection between an official’s removal of records and a specific FOIA request. That standard cannot be satisfied here. Judicial Watch’s FOIA request was submitted nearly four months after Secretary Clinton left the State Department, and there is no evidence that Secretary Clinton or anyone else at the Department knew that Judicial Watch would submit the request, let alone intended to circumvent it. Absent such evidence, Kissinger footnote nine is irrelevant.

Judicial Watch's Response to the Department of State

PLAINTIFF’S REPLY TO DEFENDANT’S OPPOSITION

Yes, we need to depose Clinton:

In its motion, Plaintiff clearly demonstrated why Secretary Clinton’s deposition is necessary. Instead of trying to refute the existence of unanswered questions or the fact that Secretary Clinton undoubtedly has relevant information, Defendant appears to renew its motion for summary judgment by arguing that Plaintiff has developed no evidence of intent to thwart FOIA. Def. Opp. at 8. Not only is Defendant’s argument premature, it mischaracterizes the evidence.

The Court granted Plaintiff’s request for discovery because “questions surrounding the creation, purpose and use of the clintonemail.com server must be explored through limited discovery before the Court can decide, as a matter of law, whether the Government has conducted an adequate search in response to Judicial Watch’s FOIA request.” Order at 1. Plaintiff has collected substantial information, but additional sources of relevant evidence obviously remain. In addition, since Secretary Clinton is the former head of the agency, it would have been premature for Plaintiff to seek her deposition from the outset. It is proper now, as Plaintiff has exhausted other avenues, for Secretary Clinton to sit for a deposition...

Defendant also expends substantial time arguing that discovery has refuted the basis for Plaintiff’s “theory” of intent to thwart FOIA. Def. Opp. at 13-19. Again, Defendant’s argument misses the point. Of course, discovery has provided context and substance to records Plaintiff obtained before discovery began. Some of the evidence uncovered shows that Plaintiff’s interpretations of the records are accurate. Other evidence seems to suggest that the records actually had a different meaning. That is discovery. It is not a reason to end discovery before a complete record exists. If anything, the fact that Plaintiff is successfully uncovering additional, relevant evidence confirms that additional discovery is necessary.

Finally, this is the extraordinary case in which a former agency head’s testimony is necessary. At issue is the unprecedented use of a non-state.gov system by the Secretary of State and her deputy chief of staff to conduct official government business and communicate with fellow State Department employees and other federal government employees, including those at the White House, as well as foreign leaders and other interested individuals. Although the system was used exclusively by Secretary Clinton for four years, the public did not know about it until the State Department and Secretary Clinton acknowledged the system only when compelled to do so by a New York Times report in March 2015, two years after she had left office. As this Court has stated previously, “This is a very troubling case.” Transcript at pp. 63-64. In addition, Judge Lamberth has characterized Secretary Clinton’s use of the clintonemail.com system as “extraordinary.” Judicial Watch, Inc. v. U.S. Department of State, No. 124-cv-1242, 2016 U.S. Dist. LEXIS 41183 (D.D.C. Mar. 29, 2016). If there was ever an appropriate time for the deposition of a former agency head, this is it. Defendant provides no sufficient argument as towhy this is not the case.

About Clarence Finney:

Defendant’s entire argument as to why Mr. Finney should not be deposed boils down to nothing more than Plaintiff should have sought to depose Mr. Finney at the outset. Def. Opp. at 19-22. However, in March, Plaintiff did not know Mr. Finney’s significance to this case. Only when Plaintiff received Defendant’s responses to Plaintiff’s interrogatories did Plaintiff learn that Mr. Finney had the day-to-day responsibility for records management and research, including conducting and coordinating searches in response to FOIA requests.

About John Bentel:

Defendant asserts that Plaintiff has not “pointed to any evidence suggesting that Mr. Bentel would know whether or not Secretary Clinton or the State Department used clintonemail.com to deliberately thwart FOIA.” Def. Opp. at 22. This assertion is incorrect. Plaintiff pointed to the evidence in the May 2016 OIG report, which Defendant, tellingly, fails to address. According to the State Department’s Inspector General, an employee who reported to Mr. Bentel “raised concerns that information sent and received on Secretary Clinton’s account could contain Federal records that needed to be preserved in order to satisfy Federal recordkeeping requirements.” OIG Report at 40. In response, Mr. Bentel stated “that the Secretary’s personal system had been reviewed and approved by Department legal staff and that the matter was not to be discussed any further.” Id. Similarly, the May 2016 OIG Report states that another one of Mr. Bentel’s employees “raised concerns about the server and that Mr. Bentel, in response, “stated that the mission of S/ES-IRM is to support the Secretary and instructed the staff never to speak of the Secretary’s personal email system again.” Id. This evidence suggests that the State Department, through Mr. Bentel, may have attempted to conceal the existence of the clintonemail.com system from officials responsible for managing the secretary’s records systems. Plaintiff, at a minimum, should be allowed to question Mr. Bentel about these assertions.

In conclusion, at the moment we don't care about those extra emails Comey found:

Whether the FBI at some time in the future will provide the State Department with additional records is irrelevant.

These records are just another subset of a larger set of records. Until the Court resolves whether Defendant’s search in response to Judicial Watch’s FOIA request was reasonable, any discussion of remedies is premature. The Court should rule upon the motion currently before the Court. Doing so will move this case closer towards a final resolution. Delaying adjudication will only prejudice Plaintiff. It has now been more than three years since Plaintiff submitted its FOIA request. Plaintiff still has a right to a sufficient search, and Plaintiff cannot and will not receive one until the Court receives answers to “questions surrounding the creation, purpose and use of the clintonemail.com server” so that it “can decide, as a matter of law, whether the Government has conducted an adequate search in response to Judicial Watch’s FOIA request.”

PLAINTIFF’S REPLY TO NON-PARTY
HILLARY RODHAM CLINTON’S OPPOSITION (16 pages)

While other entities have inquired about Secretary Clinton’s unprecedented use of the clintonemail.com system to conduct official government business, only Judicial Watch, through court approved discovery, has focused on whether the creation and use of the system was intended to deliberately thwart FOIA or otherwise prevented the State Department from complying with its FOIA and federal recordkeeping obligations. The Benghazi Select Committee was authorized and directed to conduct an investigation about events surrounding the 2012 Terrorist Attack in Benghazi Libya. See http://benghazi.house.gov/about. It did not have the authority nor was it directed to conduct an investigation about the purpose for the clintonemail.com system. Similarly, during his testimony before the House Oversight and Government Reform Committee, FBI Director Comey twice explicitly stated that the FBI did not investigate and could not conclude whether the clintonemail.com system was an attempt by Secretary Clinton and the State Department to avoid compliance with FOIA or other federal recordkeeping statutes. See http://www.c-span.org/video/?c4609578/scope-clinton-investigation (“Was there any evidence of Hillary Clinton attempting to avoid compliance with the Freedom of Information Act? Th[at] was not the subject of our criminal investigation, so I can't answer that sitting here.”); see also Exhibit C to Clinton Opp. (“[L]et me ask you that, was the reason she set up her own private server in your judgment was because she wanted to shield communications from Congress and the public?” I can't say that.”).

...And State only addressed issues of whether it did what it should regarding FOIA as opposed to whether or not we should depose Clinton.

In support of its request to depose Secretary Clinton, Plaintiff identified at least six issue areas in which Secretary Clinton is the only one that can complete the record. Secretary Clinton does not assert that she does not have information about the six issue areas. Nor does she assert that she does not have any additional information relevant to this matter. She merely argues that they are either complete or irrelevant. This argument is without merit.

1. The purpose for the clintonemail.com system.

To Plaintiff’s knowledge, Secretary Clinton has never testified under oath why she created and used the clintonemail.com system to conduct official government business. Her only public statements on the issue are unsworn. The only sworn testimony on the issue is hearsay referencing those unsworn statements.

The evidence also suggests a possible discrepancy with the FBI’s findings about the creation of the system. Clinton Opp. at 8. The domain name “clintonemail.com” was registered on January 21, 2009. The email address “hdr22@clintonemail.com” was created shortly thereafter. Neither the domain name nor the email address existed on President Clinton’s system. Ms. Mills testified that “President Clinton’s office originally hosted its office staff email on an Apple server, and that in 2009, their email was migrated to a newer server that was acquired from excess equipment available from Secretary Clinton’s 2008 presidential campaign.”

The following is a particularly interesting tidbit since Clinton has persistently claimed that it did not matter that her own email was on a separate server since she was writing to State Dept employees and the emails would then be captured from their accounts - that has always seemed unnecessarily cumbersome to me (and I'm no expert):

Ms. Lang, the State Department’s 30(b)(6) witness, testified that the State Department could not reasonably search for records responsive to FOIA requests for Secretary Clinton’s emails based on her practice because “in order to search, for example, for Secretary Clinton’s emails, if they were stored in other custodians’ electronic archives, it would not be possible to do that except by searching individual custodian by individual custodian, would not be reasonably possible” because “the department has 70,000 employees possible.”

...which leads to:

Second, as noted in Plaintiff’s motion, Ms. Mills, Secretary Clinton’s chief of staff, always was fully aware that the proper method to respond to a FOIA request is to search an employee’s email account for her records.

and:

Third, there is no dispute that Secretary Clinton at times abandoned her own practice and corresponded with State Department employees, such as Ms. Abedin, on only their non-state.gov email accounts. This demonstrates that, at a minimum, even following her own practice, Secretary Clinton had ample opportunity to shield some of her emails from the public.

Loose ends abound:

Fourth, the fact that Under Secretary Kennedy, Executive Secretary Mull, and Deputy Executive Secretary Lukens all testified that they did not have or were not aware of any concerns about Secretary Clinton’s email not being subject to FOIA only raises additional questions. (SNIP) Evidence that senior agency officials responsible for records management did not follow up on such issues or raise any such concerns suggests that, at a minimum, the State Department condoned Secretary Clinton’s use of the clinonemail.com system.

Secretary Clinton’s opposition also ignores the striking evidence that Clarence Finney, the State Department official responsible for the day-to-day management of the secretary’s records, including FOIA responses for those records, had no knowledge about her use of the clintonemail.com system. Lang Deposition at 165:19 – 166:1. Nor did he apparently know about her alleged practice of corresponding with State Department officials on their State Department email accounts. Lang Deposition at 97:12 – 98:4. This raises serious questions because, as Ms. Mills testified, Secretary Clinton was in contact with Mr. Finney every day.

And as to that assertion that Secretary Clinton used a private server because that's the way she'd done it before when she was in the Senate:

Moreover, no witness has provided any testimony as to why Secretary Clinton continued her email practice even though her legal obligations concerning her records changed. As a U.S. Senator, Secretary Clinton was not subject to FOIA. As Secretary of State, her records conducting State Department business undisputedly were subject to FOIA and other federal recordkeeping statutes. The evidence so far does not reveal what Secretary Clinton was thinking when she decided to continue her practice of using an unofficial email address in light of her new position as a cabinet secretary. Notably, Secretary Clinton does not address this issue in her opposition.

The fundamental question about why Secretary Clinton created and used the clintonemail.com system remains unanswered. All admissible evidence shows that only Secretary Clinton can answer the question. Her testimony is essential.

2. Secretary Clinton’s continued use of the system.
Convenience, right?

Secretary Clinton asserts that she continued to use the clintonemail.com system, even though it appeared to have suffered multiple and repeated technical problems over the four years that she was secretary, because the State Department system also had problems. This makes little sense as Secretary Clinton has asserted repeatedly that she created the system for “convenience.” On the other hand, had Secretary Clinton used a state.gov email account, the State Department would not have had to cope with significant issues such as the ability of emails transmitted through Secretary Clinton’s email account to reach State Department officials and employees using their state.gov email accounts. Use of a state.gov account also would have enabled Secretary Clinton to utilize the extensive State Department resources intended to ensure that her communication systems functioned properly

3. Secretary Clinton’s claim over her emails.

Numerous times in thoughtful pieces about who, technically, owns Clinton's emails, I've seen it postulated that State technically should own not just Clinton's work emails but also the private emails since they are co-mingled. Clinton's attorneys have argued otherwise for the first time in their opposition brief. I have not found a good definition of 'Claim of Right' to understand the concept well.

The most startling argument in Secretary Clinton’s opposition is her claim that “the 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.” It appears that Secretary Clinton is now arguing that she personally possessed a claim of right to the approximately 30,000 emails that she belatedly returned to the State Department as well as the thousands of other official government emails that she never did return to the State Department. This assertion is directly contrary to previous
representations made by both the State Department and Secretary Clinton indicating the State Department’s right to and control over the emails. (SNIP) What exactly she means by this new assertion is highly relevant to the issue before this Court and only Secretary Clinton can provide such evidence. In addition, this new claim highlights the fact that other critical questions remain unanswered. These questions include whether the system was “allowed,” whether the State Department authorized the system’s use, and whether the State Department maintained constructive control or, conversely, ceded control over the emails on the system.

Throughout, Clinton has claimed that her use of her server was 'allowed,' so what gives?

Still unanswered is the basic question of whether Secretary Clinton’s use of the clintonemail.com system was authorized by the State Department. Secretary Clinton continues to suggest that the use of the system was “allowed.” Clinton Opp. at 8-9. The State Department correctly points out, however, that “[d]iscovery has produced no evidence that Secretary Clinton’s use of a personal email account was approved by State.”

There is an open question of whether State would be required to search on a private server for information requested through FOIA, so with respect to precedent:

The pertinent point is what the D.C. Circuit believes are the relevant factors as to when an agency is required to search a private email account controlled by an agency head.

Perhaps Clinton believes FOIA only applies to little people - Judicial Watch would like to know:

...there is no evidence in the record about whether Secretary Clinton thought FOIA applied to the emails relating to State Department business on the clintonemail.com system (SNIP) (Clinton) has not answered the question of whether she understood that her emails conducting State Department business through the clintonemail.com system were subject
to FOIA.

The emails could only be inventoried if (Clinton) permitted it. In addition, everyone who was at the meeting with Finney and was responsible for inventorying Secretary Clinton’s records knew about the use of the clintonemail.com system to conduct official government business, yet not one shared this information with Mr. Finney.

5. Secretary Clinton’s choice of type of email system.

The type of email system Secretary Clinton used is significant because the type of system she selected did not allow for archiving. Plf.’s Mot. at 11. Director Comey suggested that if she had used a state.gov email account or even a commercially available email system, her emails would have been archived in the normal course.

6. Mr. Pagliano’s role in creating and operating the system.

Ah, yes - still a mystery. What, actually, did the FBI get in exchange for granting immunity?

Notably absent from Secretary Clinton’s opposition is any discussion about the lack of evidence concerning the information technology services that Mr. Pagliano provided to Secretary Clinton while she was employed by the State Department. (snip) Because Mr. Pagliano invoked his Fifth Amendment right against selfincrimination, and no other witness could provide meaningful testimony about the work he may have performed on the clintonemail.com system, either for the State Department or for Secretary Clinton, Plaintiff has been unable to obtain evidence from this important source.

Secretary Clinton’s deposition is appropriate under the circumstances.

While rare, Secretary Clinton does not dispute that a court can require a former top official to appear for a deposition in “extraordinary circumstances.” This is the extraordinary case. At issue is the unprecedented use of an unofficial system by the Secretary of State and her deputy chief of staff to conduct official government business and communicate with fellow State Department employees and other federal government employees, including those at the White House, as well as foreign leaders and other interested individuals. Although the system was used exclusively by Secretary Clinton for four years, the public did not know about it until the State Department and Secretary Clinton only acknowledged the system when compelled to do so by a New York Times report in March 2015, two years after she had left office. As this Court has stated previously, “This is a very troubling case.” In addition, Judge Lamberth has characterized Secretary Clinton’s use of the clintonemail.com system as “extraordinary.”

Bam! Judicial Watch pushes back on the Clinton attorneys:

Finally, the deposition of Secretary Clinton will not be futile.

and

Secretary Clinton’s desire to re-argue claims that have already been rejected is not an adequate justification for reconsideration. She offers no change in law, fact or other reason that this Court should revisit its previous analysis of Kissinger, other than the startling assertion that she has a “claim of right” to all emails in which she conducted official government business. (SNIP) The Court already has found that Kissinger does not apply to the unprecedented situation currently before the Court. There is no reason to revisit this ruling in light of the law of the case doctrine, which provides that “[w]here issues have been resolved at a prior state in the litigation, based upon principles of judicial economy, courts generally decline to revisit [them].

And at the very tippy tail of the brief, it says they want to get the three depositions done WITHIN FOUR WEEKS. But WAIT! We only have ONE WEEK before the nomination! Yikes!

Anyone know how to look up odds in Vegas on whether or not the court will grant the deposition request?

See y'all on the flip side...

UPDATE: Hat Tip to CroneWit for posting the first reporting about the hearing today (which only comments on a very narrow slice of what transpired): http://thehill.com/policy/national-security/288190-fbi-to-begin-transfer...