Deleted Clinton emails might remain secret until after election

None of Hillary Clinton’s work-related emails discovered by the FBI after being deleted from her private server have been released, raising questions about whether any will be seen in public before Election Day.

The FBI says it found “several thousand” work-related emails Clinton deleted, but the State Department has not committed to a schedule for their release, and it will be up to a federal judge to determine when they could be made public.

{mosads}“As we have just received this material from the FBI we are still assessing what our process will look like,” State spokeswoman Elizabeth Trudeau said in a statement to The Hill on Tuesday.

Multiple Freedom of Information Act (FOIA) requests and lawsuits have been filed to recover the emails. Litigants include conservative watchdog group Judicial Watch and Vice News journalist Jason Leopold.

The FBI recovered an unspecific number of the 30,000 deleted emails during the course of its yearlong investigation into Clinton’s email setup, which ultimately failed to produce an indictment against Clinton.

Clinton, now the Democratic nominee for president, handed over a similarly sized batch of 30,000 emails to the State Department for safekeeping in late 2014.

FBI Director James Comey said last month that among those recovered emails were “several thousand” work-related messages and three that contained classified information. Comey cautioned at the time that the FBI did not uncover evidence that Clinton intentionally tried to thwart transparency laws, instead suggesting it was extreme sloppiness on the part of the former secretary of State and her aides.

Last Friday, the FBI sent the final batch of emails it had recovered to the State Department, which is responsible for going through them to redact any information that is classified or otherwise exempt from public disclosure.

“Just as we appropriately processed the material turned over to the Department by former Secretary Clinton, we will appropriately and with due diligence process any additional material we receive from the FBI to identify work-related agency records and make them available to the public consistent with our legal obligations,” Trudeau said.

The ongoing delay complicates the odds that Clinton’s deleted emails are made public before the election in November.

“It’s hard to say,” Steven Aftergood, who directs the Federation of American Scientists’ project on government secrecy, said in an email. 

“I’m not sure where the line will ultimately be drawn.”

A delay until after the election could lead to allegations of a cover-up. GOP nominee Donald Trump has already warned that the election might be “rigged” against him, and he would likely use an email holdup as evidence.

“All things being equal, they should be released by the election,” predicted Tom Fitton, the president of Judicial Watch and a longtime Clinton antagonist. “But if the State Department once again plays campaign defense counsel for Mrs. Clinton, who knows?

“I just can’t imagine that untoward delays will be tolerated.”

A release in the weeks ahead of Nov. 8 might also be damaging for Clinton, however, by reigniting the public furor over a politically potent issue that the Democratic nominee’s presidential campaign has desperately been trying to put behind it.

Ultimately, most of the responsibility for deciding when the emails are released falls to a few federal judges in Washington, who are overseeing FOIA cases concerning Clinton’s emails. The judges are expected to order schedules for production in coming weeks.

“The decision is not entirely up to the State Department,” said Aftergood.

While judges have previously prodded the department not to dawdle with releases of Clinton’s emails, the State Department has routinely complained that FOIA lawsuits have overwhelmed its resources and has quoted review times that can seem comical. In June, the department claimed that it would need 75 years to process emails for top aides to Clinton in response to a lawsuit from the Republican National Committee.

The first opportunity for a judge to weigh in on the deleted emails is Aug. 22, when Judge James Boasberg is scheduled to oversee a hearing as part of a Judicial Watch case.

In a filing as part of a separate FOIA case, Obama administration lawyers this week indicated that all other decisions about processing the deleted Clinton emails should be delayed until after that hearing.

“[I]t would be in the best interests of judicial economy for a processing schedule to be entered in that case, given that any federal records in the retrieved materials are likely to be State Department records, and given that the State Department is a party to the Judicial Watch case,” government lawyers claimed.

That would leave just two and a half months to release the thousands of emails by Nov. 8.

Additionally, some of the cases concerning the deleted emails differ in minor ways, meaning that a ruling in the Judicial Watch suit might not apply to all emails being sought in other cases. Those discrepancies could further drag out the time necessary to review the emails and make them public.

“Should the State Department prevail in that argument or otherwise obtain delays beyond Election Day in Plaintiff’s and in other similar cases, it would leave Plaintiff and the public without information guaranteed to them under the FOIA,” Leopold, the journalist, argued in a Monday evening court filing.

It’s unclear whether the deleted emails will be released through the State Department’s website, as the 30,000 Clinton messages that she handed to the department in 2014 were, or directly to litigants such as Leopold. Pursuant to a court order, which would seem not to apply to the deleted messages, the previously disclosed emails were released on a monthly basis over the course of the last year, generating a stream of negative headlines for Clinton and her campaign.

Litigants suing for Clinton’s emails have been eager to make the messages they receive public, however.