Former U.S. Attorney: ‘Hillary Clinton Is Going to Have to Testify in a Federal Court’

Experts say Clinton knowingly circumvented the law at State Department

Hillary Clinton / AP

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Hillary Clinton knowingly acted to circumvent the Freedom of Information Act by creating a private email server, according to legal experts.

Speaking at a panel hosted by government watchdog group Judicial Watch, experts in the field of government accountability agreed that Clinton’s decision to create her own email server was a deliberate attempt to avoid transparency laws.

Daniel Metcalfe, who was the founding director of the Justice Department’s office of information and privacy, said that the regime created by Clinton at the State Department was a "prescription for blatant circumvention of FOIA."

FOIA agents responding to the multiple requests made regarding Clinton’s emails had "nothing to search through," explained Metcalfe.

Metcalfe, who added that he is a registered Democrat and plans to vote for Clinton if she is the party’s presidential nominee, also stated that his first-hand experience suggests that Clinton and her lawyer, Cheryl Mills, knew what they were doing.

"I know enough to know that Clinton indeed had knowledge of how the FOIA worked," said Metcalfe. "I worked with members of the White House, including Cheryl Mills, and based on first-hand experience, she knew exactly what she was doing."

Metcalfe added that Clinton’s actions amounted to a "flouting, if not an outright violation" of the Federal Records Act.

"By not having an official account at all, she acted utterly contrary to the FRA," said Metcalfe.

Also on the panel was Joseph diGenova, a former former U.S. Attorney who said that the "incident has stopped the clock on accountability" and that "the basic facts cry out for a formal investigation by the Justice Department."

"Clinton is going to have to testify in a federal court," said diGenova. "She has admitted that she has destroyed, theoretically, government documents under subpoena by the House of Representatives and under subpoena in civil litigation."

"There are going to have to be affidavits filed under oath" by a wide range of government officials, including Clinton, said diGenova.

DiGenova added that the gravity of Clinton’s actions in an office as important as hers could not be overstated.

"This is the secretary of state," said diGenova. "This is not somebody over at EPA, who is working in a bureau, trying to figure out carbon dioxide problems."

"This is the secretary state, a historical figure in terms of the operations of the U.S. government," he said. "For anybody that cares about government—whether you are a Democrat or a Republican—she destroyed history with no supervision, no accountability, no supervision."

DiGenova also indicated his belief that Clinton was treated differently than other secretaries of state would have been, and that this special treatment is at the root of the entire controversy.

"Whatever the duties were of a whole bunch of people at the state department, they didn’t perform them," said diGenova. "At a certain point, the information management people know that she is not using an official email account … it doesn’t take a lot for somebody to start asking questions."

DiGenova said that the prevailing attitude at the State Department was that "you don’t get [Clinton] angry at you by asking tough questions."

DiGenova also stated that he believes that the State Department knew about the private server from the beginning and was involved in setting it up at her Chappaqua, N.Y. home.

Judicial Watch’s leading attorney, Paul Orfanedes, said that the organization has filed 17 new FOIA requests since the scandal emerged, including requests to both the State Department and Secret Service regarding involvement with the initial setup of the server.

Orfanedes also stated that Judicial Watch is going back to pinpoint past instances in which the State Department had said it that it had looked through Clinton’s emails without disclosing that there was nothing to look through.

Tom Fitton, president of Judicial Watch, stated his hope that Clinton’s coming announcement that she is running for president does not turn this into a political story.

"The media will try to move on and make it all about politics as she announces her run for the presidency, but running for the presidency doesn’t make you immune from any serious accountability under law," said Fitton.

Brent Scher   Email Brent | Full Bio | RSS
Brent Scher is a staff writer for the Washington Free Beacon. He graduated from the University of Virginia, where he studied foreign affairs and politics.