Trump administration must release Clinton emails State Department tried to hide
© Getty Images

I have some good news and some bad news regarding the ongoing search for the truth concerning the 2012 Benghazi terrorist attack.

First the good news: Judicial Watch recently announced that on March 20, 2017, U.S. District Judge Amy Berman Jackson ordered the U.S. Department of State to release to Judicial Watch “eight identical paragraphs” of previously redacted material in two emails from former Secretary of State Hillary ClintonHillary Diane Rodham ClintonWoman behind pro-Trump Facebook page denies being influenced by Russians Trump: CNN, MSNBC 'got scammed' into covering Russian-organized rally Pennsylvania Democrats set to win big with new district map MORE’s unsecure email server dated Sept. 13, 2012. 

The emails detail phone calls made by President Obama to Egyptian and Libyan leaders immediately following the terrorist attack on the U.S. mission in Benghazi. The emails have the subject line “Quick Summary of POTUS Calls to Presidents of Libya and Egypt” and were among the emails stored on Clinton’s non-government email server. Judge Jackson reviewed the documents in-camera and rejected the government’s contention that the records had been properly withheld under the Freedom of Information Act (FOIA) B(5) “deliberative process” exemption.


Judge Jackson ruled, “The two records, even if just barely predecisional, are not deliberative. [The State Department] has pointed to very little to support its characterization of these two records as deliberative, and the Court’s in camera review of the documents reveals that they do not fall within that category.” 

The full emails may reveal what former Secretary of State Hillary Clinton and President Obama knew about the Sept. 11, 2012, terror attack on the U.S. mission in Benghazi – prior to Susan Rice’s contention that the Benghazi attack was a reaction to an anti-Muslim video on YouTube.

The bad news is that— following close upon the heels of Judge Jackson’s March 20 ruling – the State Department asked the court to reconsider. The State Department is arguing that, due to an internal “mistake,” it failed to claim that the emails were classified and, therefore, should be exempt from production under FOIA Exemption B(1), which is reserved information related to national security.

Not surprisingly, Judicial Watch’s legal team went back to court to oppose this maneuver. Judicial Watch’s brief argues that the failure was not a mistake, but instead was unquestionably part of a deliberate effort by the State Department to protect Clinton and the agency by avoiding identifying emails on Clinton’s unofficial, non-secure email server as classified.

Judicial Watch’s filing cites an interview of an FBI employee who told federal investigators that top State Department official Patrick Kennedy pressured the FBI to keep Clinton’s emails unclassified. The employee told the FBI he “believes STATE ha[d] an agenda which involves minimizing the classified nature of the CLINTON emails in order to protect STATE interests and those of CLINTON." 

Judicial Watch also cites an interview of a State Department employee who told the FBI that the State Department’s Office of Legal Counsel interfered with the FOIA processing of email from Clinton’s server, instructing reviewers to use Exemption B(5) (deliberative process exemption) instead of Exemption B(1) (national security exemption). According to the FBI interview, "The use of the B(5) exemption, which is usually used for executive privilege-related information, was incorrect as the information actually was classified and related to national security."

As we point out in our response, the "agency’s deliberate withholding of a FOIA claim, either to gain a tactical advantage or, as appears to be the case here, to protect the agency’s interests and those of its former head," is entirely inappropriate under the applicable law.

The emails in question were sent to then-top administration officials, including Clinton, Deputy Secretary of State William Burns, Under Secretary of State Wendy Sherman, Clinton Deputy Chief of Staff Jacob Sullivan, Special Assistant Robert Russo, and Deputy National Security Advisor Denis McDonoughDenis Richard McDonoughObama: Bannon, Breitbart shifted media narrative in 'powerful direction' DNC chairman to teach at Brown University Trump mocked Obama for three chiefs of staff in three years MORE.

If the Trump administration decides to maintain the State Department’s obfuscation, it is reasonable to be concerned that this potentially historic Benghazi material may never see the light of day. Does President Trump know his State and Justice Departments are still trying to provide cover for Hillary Clinton and Barack ObamaBarack Hussein ObamaOvernight Energy: Dems ask Pruitt to justify first-class travel | Obama EPA chief says reg rollback won't stand | Ex-adviser expects Trump to eventually rejoin Paris accord Overnight Regulation: Trump to take steps to ban bump stocks | Trump eases rules on insurance sold outside of ObamaCare | FCC to officially rescind net neutrality Thursday | Obama EPA chief: Reg rollback won't stand Ex-US ambassador: Mueller is the one who is tough on Russia MORE?

This may well be an example of the “deep state” trying to get away with a cover-up. If so, then the Trump administration must be called upon to intercede.

Judicial Watch fought many legal battles against the Obama administration in an effort to unearth the truth about Benghazi, and was certainly more successful than Congress in doing so. Let’s hope the Trump administration appointees cooperate with the court (and the Freedom of Information Act generally), put an end to this egregious waste of taxpayer dollars (legal battles are not cheap), and uphold the public’s right to know the truth.

Tom Fitton (@TomFitton) is the president of Judicial Watch.

The views expressed by contributors are their own and are not the views of The Hill.