In re Clinton

973 F.3d 106

IN RE: Hillary Rodham CLINTON and Cheryl Mills, Petitioners

No. 20-5056

United States Court of Appeals, District of Columbia Circuit.

Argued June 2, 2020

Decided August 31, 2020

Rehearing En Banc Denied October 28, 2020

David E. Kendall argued the cause for petitioners. With him on the petition for writ of mandamus and the reply were Katherine M. Turner, Stephen L. Wohlgemuth, Suraj Kumar, and Beth A. Wilkinson, Washington, DC.

Ramona R. Cotca argued the cause for respondent Judicial Watch, Inc. With her on the response to the petition for writ of mandamus were Lauren M. Burke and Paul J. Orfanedes. Michael Bekesha, Washington, DC, entered an appearance.

Mark R. Freeman, Attorney, U.S. Department of Justice, argued the cause for respondent United States Department of State. With him on the response to the petition for writ of mandamus were Hashim M. Mooppan, Deputy Assistant Attorney General, and Mark B. Stern, Attorney.

Before: Griffith, Pillard and Wilkins, Circuit Judges.

Wilkins, Circuit Judge:

This petition arises from a Freedom of Information Act ("FOIA") case brought by Judicial Watch, Inc. against the U.S. Department of State. See Judicial Watch, Inc. v. Dep't of State , No. 1:14-cv-1242 (D.D.C. filed July 21, 2014). Petitioners are former Secretary of State Hillary Rodham Clinton (a third-party intervenor in the case), and Secretary Clinton's former Chief of Staff, Cheryl Mills (a nonparty respondent in the case). On March 2, 2020, the District Court granted Judicial Watch's request to depose each Petitioner on a limited set of topics. On March 13, 2020, Secretary Clinton and Ms. Mills petitioned this Court for a writ of mandamus to prevent the ordered depositions. For the reasons detailed herein, we grant the petition in part and deny it in part – finding that although Secretary Clinton meets all three requirements for mandamus, Ms. Mills does not. See Cheney v. U.S. Dist. Court , 542 U.S. 367, 380, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004).

I.

On May 13, 2014, Judicial Watch submitted a FOIA request to the State Department for records in the Office of the Secretary regarding Ambassador Susan Rice's September 16, 2012 television appearances. The request sought:

Copies of any updates and/or talking points given to Ambassador Rice by the White House or any federal agency concerning, regarding, or related to the September 11, 2012 attack on the U.S. consulate in Benghazi, Libya.

Any and all records or communications concerning, regarding, or relating to talking points or updates on the Benghazi attack given to Ambassador Rice by the White House or any federal agency.

Complaint at 2 ¶ 5, No. 1:14-cv-1242, ECF No. 1 (July 21, 2014) (lettering omitted). After the State Department failed to timely respond, Judicial Watch filed suit in the United States District Court for the District of Columbia on July 21, 2014, and the case was assigned to Judge Lamberth. See id. at ¶¶ 5-9. The State Department produced four responsive documents to Judicial Watch in November 2014 and provided a draft Vaughn Index in December 2014, Pl.’s Mot. for Status Conf. at 4 ¶ 5, No. 1:14-cv-1242, ECF No. 12 (Mar. 16, 2015). Judicial Watch subsequently requested a declaration describing the Department's search. See Third Joint Status Rep. at 2 ¶ 3(c), No. 1:14-cv-1242, ECF No. 16 (May 1, 2015). In joint status reports filed on December 31, 2014 and February 2, 2015, the parties informed the court that they might be able to settle the case or narrow the issues before the court, but that the State Department would first conduct additional searches for responsive documents by April 2015. See Joint Status Rep., No. 1:14-cv-1242, ECF No. 10 (Dec. 31, 2014); Joint Status Rep., No. 1:14-cv-1242, ECF No. 11 (Feb. 2, 2015).

In early March 2015, Judicial Watch learned that Secretary Clinton had used a private email server to conduct official government business during her tenure as Secretary of State. See Emergency Mot. at 3 ¶ 3, No. 1:14-cv-1242, ECF No. 13 (Mar. 16, 2015). And on August 21, 2015, it moved for limited discovery related to the State Department's recordkeeping system during Secretary Clinton's tenure. See Mot. for Discovery at 6, No. 1:14-cv-1242, ECF No. 22 (Aug. 21, 2015). Contemporaneously, another district court judge, Judge Sullivan, was supervising a separate FOIA case between the same parties and considering similar discovery requests. Judicial Watch, Inc. v. Dep't of State , No. 1:13-cv-1363 (D.D.C. filed Sept. 10, 2013). In addition, the State Department's Inspector General, the FBI, and the House Select Committee on Benghazi were conducting independent investigations of Secretary Clinton's use of a private email server. As a result, Judge Lamberth delayed consideration of Judicial Watch's discovery request. Mem. and Order at 2-3, No. 1:14-cv-1242, ECF No. 39 (Mar. 29, 2016). Judge Sullivan ultimately granted Judicial Watch's request for discovery on the use of the private email server, ordered the disclosure of federal records from Ms. Mills and Huma Abedin (Secretary Clinton's former Deputy Chief of Staff), and authorized Judicial Watch to send interrogatories to Secretary Clinton and to depose Ms. Mills, among others. Mem. Order at 13-14, No. 13-cv-1363, ECF No. 73 (May 4, 2016).

On December 6, 2018, after the parties substantially completed discovery before Judge Sullivan and the government investigations had concluded, Judge Lamberth ordered additional discovery in this case. Mem. Op. at 1, 4-5, 9, No. 1:14-cv-1242, ECF No. 54 (Dec. 6, 2018). Although discovery in FOIA cases is rare, Judge Lamberth ordered the parties to develop a discovery plan regarding whether Secretary Clinton's "use of a private email [server] while Secretary of State was an intentional attempt to evade FOIA," "whether the State Department's attempts to settle this case in late 2014 and early 2015 amounted to bad faith," and "whether State ha[d] adequately searched for records responsive to Judicial Watch's request." Order, No. 1:14-cv-1242, ECF No. 55 (Dec. 6, 2018). On January 15, 2019, the District Court entered a discovery plan permitting Judicial Watch to: depose "the State Department," several former government officials and employees, and a former Clinton Foundation employee; serve interrogatories on several other government officials; obtain via interrogatories the identities of individuals who conducted the search of the records; and discover unredacted copies of various relevant documents and any records related to the State Department's conclusion about the need to continue searching for responsive records. Mem. Op. and Order, No. 1:14-cv-1242, ECF No. 65 (Jan. 15, 2019). The District Court reserved a decision on whether to permit Judicial Watch to depose Petitioners, id. at 2, and Secretary Clinton subsequently intervened, Mot. to Intervene, No. 1:14-cv-1242, ECF No. 128 (Aug. 20, 2019); see also Order, No. 1:14-cv-1242, ECF No. 129 (Aug. 21, 2019) (granting the unopposed motion to intervene).

On March 2, 2020, after the January 15, 2019 round of discovery was substantially complete, the District Court authorized yet another round of discovery, including the depositions of Petitioners. See Mem. Order, No. 1:14-cv-1242, ECF No. 161 (Mar. 2, 2020). Although Judicial Watch had proposed a broader inquiry, see Status Rep. at 13-15, No. 1:14-cv-1242, ECF No. 131 (Aug. 21, 2019), the court limited the scope of Secretary Clinton's deposition to her reasons for using a private server and her understanding of the State Department's records-management obligations, Mem. Order at 6-10, ECF No. 161. The court also limited the scope of questions regarding the 2012 attack in Benghazi to both Petitioners’ knowledge of the existence of any emails, documents, or text messages related to the attack. Id. at 10-11.

On March 13, 2020, Secretary Clinton and Ms. Mills filed a petition for writ of mandamus in this Court, requesting an order "directing the district court to deny Judicial Watch's request to depose" them. Pet. at 4. Pursuant to this Court's order, Judicial Watch and the State Department each filed responses.¹

II.

The common-law writ of mandamus, codified at 28 U.S.C. § 1651(a), is one of "the most potent weapons in the judicial arsenal," see Will v. United States , 389 U.S. 90, 107, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967), and mandamus against a lower court is a "drastic" remedy reserved for "extraordinary causes," Ex parte Fahey, 332 U.S. 258, 259-60, 67 S.Ct. 1558, 91 L.Ed. 2041 (1947). Mandamus lies only where the familiar tripartite standard is met: (1) the petitioner has "no other adequate means to attain the relief"; (2) the petitioner has demonstrated a "clear and indisputable" right to issuance of the writ; and (3) the Court finds, "in the exercise of its discretion," that issuance of the writ is "appropriate under the circumstances." Cheney , 542 U.S. at 380-81, 124 S.Ct. 2576. Although these hurdles are demanding, they are "not insuperable," id. at 381, 124 S.Ct. 2576, and a "clear abuse of discretion" by a lower court can certainly justify mandamus, Bankers Life & Cas. Co. v. Holland , 346 U.S. 379, 383, 74 S.Ct. 145, 98 L.Ed. 106 (1953).

Applying this standard, we find the petition as to Secretary Clinton satisfies all three prongs, while the petition as to Ms. Mills fails to satisfy the first. Since the "three conditions must be satisfied before [mandamus] may issue," regardless of Ms. Mills’ petition's merit on the other two inquiries, we are bound to deny the writ and dismiss her petition. See Cheney , 542 U.S. at 380, 124 S.Ct. 2576 (citing Kerr v. U.S. Dist. Court for N. Dist. of Cal. , 426 U.S. 394, 403, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976) ).

A.

Under the first prong of Cheney , Secretary Clinton and Ms. Mills must each have "no other adequate means to attain the relief" they request on mandamus. 542 U.S. at 380, 124 S.Ct. 2576. Judicial Watch argues that the appropriate way for both Petitioners to garner review of the...