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A judge’s decision whether or not to allow Washington watchdog Judicial Watch to question Democratic presidential candidate Hillary Clinton under oath about her private email system that already has caused so much controversy is casting a shadow over her campaign.

At a hearing this week on the Judicial Watch request for permission to depose Clinton, U.S. District Judge Emmet Sullivan would not rule out the possibility. Nor would he immediately grant permission. He also noted he might be open to ordering her to answer the questions from Judicial Watch in writing but not in a deposition.

The Freedom of Information Act case was launched by Judicial Watch several years ago because Clinton aide Huma Abedin was given a “special government employee” status, which permitted her to collect a government paycheck as well as income outside the government.

The case was shut down before it was revealed that Hillary Clinton had been operating as secretary of state with a private email system, so a judge ordered it reopened to review the newly discovered evidence.

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Judicial Watch already has taken testimony from several of Clinton’s aides. But it told Sullivan at his hearing this week that the one and only person who can answer why the system was set up and continued to be used despite warnings that it violated State Department policy is Clinton.

Lawyers for the government as well as Clinton argued that her statements on the issue already are public, so she should be exempted from the requirement to testify. They argued the “elephant in the room” was the fact that Clinton is pursuing a presidential campaign.

Judicial Watch explained the dispute: “As you will recall, U.S. District Court Judge Emmet G. Sullivan had granted ‘discovery’ to Judicial Watch into former Secretary of State Hillary Clinton’s email system. Sullivan had noted at the time that ‘based on information learned during discovery, the deposition of Mrs. Clinton may be necessary.'”

At the hearing, Judicial Watch lawyer Michael Bekesha explained the focus now: “Prior to Mrs. Clinton becoming secretary of state, she never had FOIA obligations or federal record-keeping obligations when she was a senator, so that changed. Her legal obligations changed. And the question is: When those legal obligations changed, why did she not recognize those obligations and then change her normal course of business because of these new legal obligations that applied when she became secretary of state?”

That question, Judicial Watch said, is the one that hasn’t been answered and probably can’t be answered, except by Clinton under oath.

He continued: “Why – at one point we have the email where Mrs. Clinton said – she said, ‘This isn’t a good system.’ And then later on she said, ‘I don’t want the personal being accessible.’ And the questions: What does that mean? Did she decide not to use a State Department BlackBerry, a State Department email account, because she didn’t want the personal accessible? Now, you could read it one way, that she didn’t want personal emails accessible, but the question then is, as Mrs. Clinton would know, personal emails are not subject to FOIA requests, so her – even if she used the State Department system, she would not – her personal email would not be turned over to the public, and so that doesn’t really seem to be a concern.

“Another way you could read that email is that she didn’t want the personal system to be accessible. And so the question then is: What was she hiding on the system?”

Further, her public statements on the issue were not made under oath, the lawyer said.

Clinton’s own lawyer at the hearing admitted as much, pointing to her statements on her website on the subject.

“But the plaintiffs argue that they haven’t heard from her under oath,” the judge noted.

At one point, Clinton’s lawyer noted that he has listened to all of her discussions about the email scandal, and he could “make representations,” to which the judge said, “Can I swear you in?”

The lawyer declined.

The judge later wondered whether it would be all right “to at least allow the plaintiffs to propound a few interrogatories that can be answered at her leisure? Is that the standard, the fact that there’s not been anything heretofore discovered of any evidence that might tend to show or demonstrate that there was an effort to thwart FOIA?”

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When questioned by the judge whether Clinton “would have unique firsthand knowledge about the reasons why” the private email system was set up and maintained, the lawyer agreed.

Sullivan continued, “At the end of the day, I might agree with you, but then – but then, you know, persuade me why answers to a few questions that fundamentally get back to question 1, ‘why was this set up,’ would not be – would be inappropriate, especially since she had that unique firsthand knowledge?”

Judicial Watch argued that while Clinton has talked about the issue in some settings, “those aren’t statements under oath, and so we believe it’s necessary to ask those limited questions, to have an opportunity to ask her, directly under oath, a few questions about what she was thinking, why she made that decision and then why she made the decision each step of the way.”

The judge took the request under advisement and said a ruling would be coming soon.

While Clinton’s aides mostly have been interviewed already, the request for Clinton’s testimony follows on the judge’s earlier ruling in the case that her testimony might be required.

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The FBI, after a months-long investigation, recommended that while she was extremely careless in her handling of secret information on her private email system, she should not be charged. Attorney General Loretta Lynch accepted the recommendation days after she had a private meeting with former President Bill Clinton.

Judicial Watch first began probing Abedin’s special arrangement in September 2013. The organization agreed to dismiss the lawsuit in March 2014 after the State Department said it had given the group all the documentation.

But by March 12, 2015, Judicial Watch learned that Clinton and her aides had used private email accounts, so the organization asked that the lawsuit be reopened.

Sullivan’s priority throughout the case has been the right of the American public to know what government officials are doing.

 

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