A federal judge has ordered four current or former top officials at the Department of Homeland Security, including Secretary Jeh Johnson, to preserve emails in their private accounts that may be responsive to a Freedom of Information Act lawsuit.
U.S. District Court Judge Randolph Moss issued the order Wednesday morning to Johnson, former Deputy Secretary Alejandro Mayorkas, former chief of staff Christian Marrone, and former General Counsel Stevan Bunnell, telling them to copy relevant messages to thumb drives.
Moss said the Justice Department indicated that all four men agreed to preserve any responsive messages that might be in their private accounts, but he still granted the preservation order sought by the conservative group Judicial Watch, which said it feared the government might lose easy access to the records as Obama appointees ship out.
“Given the Department’s representation, the Court has no reason to doubt that the four individuals have agreed to comply fully with their obligations to preserve any potentially responsive emails and that they have every intention of doing so,” wrote Moss, an appointee of President Barack Obama.
“Nonetheless, out of the abundance of caution, the Court will order an additional preservation step to minimize the risk of any inadvertent loss of potentially responsive emails. Specifically, the Court will order the individuals to copy any emails from the relevant time period in any private email accounts that might contain responsive materials onto portable thumb drives, to be kept in the individuals’ personal possessions,” the judge added. “Copying the emails to a physical drive will minimize the risk that any responsive email might be inadvertently deleted.”
Moss acted in a FOIA suit Judicial Watch filed seeking all private-account emails the four officials handled during a two-year period from 2013 to 2015. While most DHS employees were barred from accessing email on official computers, the four officials and others had exemptions that permitted such access.
In a separate Judicial Watch case before another judge, the Justice Department indicated Wednesday that one of its top officials has no record of an email he apparently sent to a top Clinton campaign official in May 2015 previewing an upcoming congressional hearing and an expected DOJ filing in a court case related to Clinton’s emails.
Assistant Attorney General for Legislative Affairs Peter Kadzik sent the message with the subject line “Heads Up” to Clinton campaign chairman John Podesta. Clinton campaign aides said the communication was routine, but Donald Trump’s campaign has alleged it showed improper collusion between Justice and the Clinton camp. The contact is one focus of a Justice inspector general investigation announced last week.
The message from Kadzik to Podesta was one of tens of thousands of messages that were hacked from Podesta’s account and posted online by WikiLeaks during the campaign in an effort U.S. intelligence agencies have concluded was part of a Russian government-led drive to influence the U.S. presidential election and bolster Trump’s chances.
Justice Department attorneys said Kadzik did an exhaustive search for that email and could not find it.
“Mr. Kadzik reported that: he had searched for agency records on his personal Gmail account, peterkadzik@gmail.com, and found none, nor did he find any potential agency records (including the email described [above]); he did not use any other personal email account during the timeframe of Plaintiff’s FOIA requests; and he understood his obligations under the Federal Records Act, including his obligation to return any agency records in his possession to the DOJ before his departure from federal employment on January 19, 2017,” DOJ lawyers wrote in a court submission.
Kadzik also conducted “follow-up searches [that] included several searches designed to locate the email described in paragraph five of the Complaint,” but neither that email nor any others responsive to Judicial Watch’s broad requests were found, the DOJ filing says.
U.S. District Court Judge Emmet Sullivan issued a preservation order Wednesday at Judicial Watch’s request and instructed the government to report by this morning on its efforts to comply.
The conservative watchdog group complained Wednesday that the Justice Department has not done all it can to find work-related emails Kadzik might have sent or received on his private Gmail account.
“Defendant’s submission raises questions about what happened to the one known, potential agency record. Was it intentionally or unintentionally destroyed? Also, are there other potential agency records that may have been intentionally or unintentionally destroyed?” Judicial Watch attorney Michael Bekesha asked in a court filing. “It appears as though Defendant has not taken all necessary and reasonable steps it could take to ensure the preservation of all potential agency records. … Defendant does not identify how Assistant Attorney General Kadzik conducted his search. Defendant instead seeks to litigate the search at a later date, well after Mr. Kadzik leaves office.”
Sullivan, an appointee of President Bill Clinton, said Wednesday afternoon he thinks the steps Justice has taken on Kadzik’s emails are adequate.
“In view of the defendant’s representation that it ‘instructed Mr. Kadzik to preserve potential agency records in his Gmail account, should any exist, and Mr. Kadzik agreed to do so until instructed otherwise’ and that it notified Mr. Kadzik of ‘the Courts language regarding construing broadly the definition of an “agency record” for purposes of preservation,’ the Court is not persuaded of the need for an additional order,” he wrote.
A Justice Department spokeswoman declined to comment for this post, citing the ongoing litigation.
Tom Williams 