Most of the criticism of Hillary Clinton on the email issue in recent months has focused on the presence of classified information in her account. | AP Photo
A federal judge said Tuesday he was disturbed by the State Department’s failure to meet a deadline he ordered to finish the public release of 54,000 pages of email messages Hillary Clinton sent or received during her four years as secretary of state.
“The government has put me between a rock and a hard place….which is a position I don’t like to be in,” U.S. District Court Judge Rudolph Contreras said during a half-hour-long hearing Tuesday.
Story Continued Below
Contreras signaled that he was not inclined to grant State’s request that the deadline for a release of all remaining pages of Clinton’s emails be extended until the end of this month. However, he did not immediately set a new deadline for State to complete its work on the Clinton messages.
“The department should expect to produce something on the 18th, if not sooner,” the judge said.
The prolonged disclosure process is helping to keep the issue of Clinton’s emails in the news as she tries to fend off a surprisingly strong challenge from Sen. Bernie Sanders (I-Vt.) for the Democratic presidential nomination.
Tuesday’s hearing took place as part of a Freedom of Information Act lawsuit filed by Vice News reporter Jason Leopold. His lawyers have argued that allowing State to drag out the release of the emails deprives voters in the Democratic primaries and caucuses of information they are entitled to have as they make up their minds.
Contreras said he agreed.
“To state the obvious, these documents have a lot of public interest and the timing is important for the reasons stated by the plaintiff,” said the judge, who was appointed by President Barack Obama.
Back in May of last year, Contreras ordered the State Department to make monthly releases of Clinton’s emails starting in June and concluding by Jan. 29. Last month, State told Contreras that it would be unable to meet the deadline because it overlooked more than 7,000 pages of emails that required interagency review but were never sent to those agencies or were only distributed to some of the relevant agencies. The diplomatic agency also said the blizzard that struck Washington last month delayed distribution of the messages once they were discovered.
All the messages come from a private account and server Clinton used while secretary, an arrangement which has drawn sharp criticism from Republicans and transparency advocates and has emerged as a significant political liability for Clinton in the presidential race. After her lawyers sifted the messages to exclude personal ones, she turned over the remaining roughly 30,000 emails to the State Department in December 2014 at its request.
At the beginning of Tuesday’s hearing, Contreras pressed Justice Department attorney Robert Prince about how many messages had already cleared the review process and how soon they could be posted.
Prince said about 570 emails were either done being reviewed or close to it.
“Let’s get those up by [next] Tuesday,” the judge proposed.
“Your honor, I don’t think that’s at all possible,” Prince replied. He said there were numerous logistical steps in preparing the emails for release on State’s website, including transferring them from a classified platform to an unclassified one. The government attorney also warned that starting to post some of the messages would divert personnel from the review process and potentially delay the remaining messages.
“What I’ve been told by my client is this is an involved process,” Prince said, saying that the posting process alone takes at least a week.
“That seems an unreasonably long period of time to just post or give access to something that’s already passed the clearance,” the judge said.
Leopold’s attorney Ryan James said his client would be opposed to an interim release and would prefer to see all 7,000 remaining pages out sooner than the new Feb. 29 deadline State proposed when it missed the one last month. James suggested moving up that date by a week or so, but Contreras said he didn’t think that would work because so many documents are still being reviewed at other agencies.
“That doesn’t sound feasible because they’re still waiting on the agencies to get back to them,” the judge said. He told State to report to the court by the end of business Wednesday on why emails that have already cleared the process could not be produced before Feb. 18.
Contreras also raised an idea which could be appealing to Vice and Leopold, but not to others in the press. The judge said that if State can’t get the emails onto its website quickly, he might order them to be turned over to Leopold in PDF form or on paper or even to set up a “screen” at the State Department where he could view the documents.
Leopold is presently on a media tour at Guantanamo. James couldn’t immediately say whether his client would be available to review records in person at the State Department, but the lawyer promised to get back to the court with an answer.
“I don’t want to force the government to do something that’s going to benefit no one,” the judge said.
There was little discussion Tuesday of the reasons for State’s failure to circulate more than 7,000 pages of the emails for interagency review. However, Contreras demanded that State file a detailed report by Friday on “how this problem arose, what caused it and why it wasn’t noticed until just recently.”
Last July, acting in response to an inspector general’s referral, the FBI opened an inquiry into Clinton’s email setup. The matter was referred to the FBI as a potential intelligence breach, not a potential crime, but it is unclear whether it remains simply a counterintelligence issue or has escalated to a full-scale criminal probe.
In a letter sent to the State Department earlier this month and released Monday, FBI General Counsel James Baker said “ongoing law enforcement efforts” were underway in connection with the probe, but he declined to elaborate on its “specific scope, focus or potential targets.”
Most of the criticism of Clinton on the email issue in recent months has focused on the presence of classified information in her account. She has said that none of the messages were marked classified at the time and she does not believe any of them contained classified information. However, State has deemed more than 1,600 of the emails classified.
Most are diplomatic exchanges that have been marked “Confidential,” the lowest tier of classified information, but several dozen have been deemed “Secret” or “Top Secret.” Those decisions have intensified the political storm over the messages. Clinton and her aides have reiterated their call for all the messages to be released. Her camp contends those designations represent overclassification “run amok” by intelligence agencies seeking to assert their authority to control information within the government.
The FOIA suit Leopold filed in 2014 sought virtually all State Department records pertaining to Clinton’s work as secretary. The request was later narrowed to include all of Clinton’s emails, as well as other records on more than a dozen different topics.