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Biden’s Supreme Court Pick Shielded Top Clinton Aide Amid Email Scandal

• March 2, 2022 5:00 am

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President Joe Biden’s Supreme Court nominee shielded one of Hillary Clinton’s top State Department aides from scrutiny about his use of a personal email account to conduct official business.

Then-U.S. district judge Ketanji Brown Jackson in 2015 denied Gawker’s request for details about press aide Philippe Reines's stewardship of the account in the context of a Freedom of Information Act lawsuit, which sought emails Reines traded with 34 different media outlets. Jackson blocked Gawker’s request, calling it "extraordinary" and claiming there was no proof that Reines had acted in "bad faith" by using a personal email address.

Like Clinton, Reines often communicated with the press via a personal email account. That meant his communiqués were not preserved on State Department systems. When Gawker filed a FOIA request for Reines’s emails in September 2012, State Department officials were thus unable to turn up responsive records, prompting the lawsuit.

The State Department asked Reines to turn over whatever government records were in his possession around the time of the Gawker lawsuit, which he did via his lawyers in July 2015, two years after he left government service. Jackson therefore agreed to give the State Department additional time to sort through the "new" Reines records and turn them over to Gawker. Jackson supervised that process and lawyers for the parties kept her up to date on their progress via status hearings and reports.

Gawker put the screws to Reines, seeking affidavits that swore he had turned over all relevant documents and describing his methods for surrendering records to State.

"It is difficult to view the timeline of events surrounding the compilation of records responsive to Gawker’s FOIA request as anything short of a bureaucratic and managerial catastrophe," lawyers for Gawker wrote in a 2015 filing. "State has provided scant information regarding why it was not until 2015 that it finally sought to gather the records from Mr. Reines."

Jackson denied that request, calling it "extraordinary." She said that the State Department had no obligation under FOIA "to solicit or produce" documents in an ex-official’s sole possession. And there’s a crucial difference, she added, between producing requested documents—which is within the scope of FOIA—and the initial decision whether to retain said documents.

"An agency’s threshold determination regarding which records to retain in its files is entirely distinct from the agency’s subsequent search of maintained records pursuant to the FOIA—and these two duties should not be conflated," she wrote in an opinion denying Gawker’s request.

The decision was the only opinion Jackson handed down over the course of the dispute.

Jackson’s opinion parted ways with a colleague on the Washington federal trial court, U.S. District Judge Emmet Sullivan. In a separate lawsuit, Sullivan required Clinton herself and two of her top aides, Cheryl Mills and Huma Abedin, to submit affidavits along the lines Gawker sought. Gawker’s request mentioned Sullivan’s order and may have been based upon it.

Jackson said the Reines case was different because there was evidence that Clinton’s email system was designed to skirt FOIA altogether. In the Reines-Gawker fracas, she said there was a "total absence of any indicia of bad faith" on Reines’s part.

In fact, Reines explicitly wrote, "I want to avoid FOIA" on an email exchange from his personal account with John Heilemann and Mark Halperin in February 2009, around the time he joined the State Department. That indicia of bad faith was not in the record before Jackson so far as the Washington Free Beacon could tell.

Reines’s colorful if bizarre exchanges with the Free Beacon over his spat with Gawker helped cost him a job on Clinton’s 2016 presidential campaign. The clash ended when Gawker abandoned the case in 2017.