Why would the FBI need to make a declaration secret in a civil FOIA action? In fact, why would it need to make two? Late last night, the Department of Justice requested permission for the FBI to enter a secret declaration that the agency could not find records responsive to a FOIA demand from Vice’s Jason Leopold on Hillary Clinton’s e-mail server. If granted, it would make the second secret filing with the court in this particular FOIA case:
The FBI has asked a federal court judge for permission to file a second secret declaration detailing its probe into Hillary Clinton’s private email server.
In the request, which came as part of a Freedom of Information Act (FOIA) lawsuit, the Justice Department offered for the FBI to provide “additional details” about how it “conducted a reasonable search for records” as part of the open records case and “determined that there were no records responsive.”
“These details supplement defendant’s showing that it conducted a reasonable search, but cannot be disclosed on the public record without compromising information that the FBI seeks to protect,” the department said in a filing late on Monday evening.
At the same time, The Hill’s Julian Hattem reports, the DoJ attempted to defend itself against a motion for summary judgment in favor of Leopold by claiming that it does not have to detail the basis for the FBI’s investigation into the server. In that motion, Justice argues that the FBI isn’t just doing a “security review,” but is in fact collecting records for the purpose of enforcing the law, which allows the FBI and the DoJ to withhold them from a FOIA demand:
Because the FBI’s principal function is law enforcement, the FBI’s claimed purpose for the withheld records is entitled to deference here. See id. at 421. Under the more deferential standard, the FBI must show, first, that the “activities that give rise to the documents sought [are] related to the enforcement of federal laws or to the maintenance of national security.” …
The FBI met both parts of the deferential standard here. The FBI has publicly stated that it is working on a referral from the Inspectors General of the Intelligence Community and the Department of State in connection with former Secretary of State Hillary Clinton’s use of a private e-mail server. … The referral was “a security referral made for counterintelligence purposes.” … Records responsive to plaintiff’s FOIA request were obtained or created by the FBI in furtherance of a pending investigation being conducted as a result of this referral. First Hardy Decl. ¶¶ 16, 21. Finally, the investigation is “being conducted under the FBI’s assigned law enforcement authorities and in accordance therewith.”
Thus, the FBI identified a particular incident in connection with the investigation, not merely “a general monitoring of private individuals’ activities.” Pratt , 673 F.2d at 420. And the referral from the Inspectors General to the FBI provided a rational nexus between the pending investigation and the FBI’s law enforcement duties.
This argument appears to refute Hillary’s oft-repeated argument that the FBI was only conducting a “security review.” Nor does this case involve a mere monitoring of private activities, according to the Justice filing. The Inspector General referral — from discovering the classified information on her server that Hillary claims never existed — and the State Department’s follow-up relate specifically to law enforcement, which is why the DoJ argues it shouldn’t have to produce the documents sought by Leopold or suffer a summary judgment for failing to produce them.
The DoJ acknowledges here that the FBI is conducting a law-enforcement action as well as a counterintelligence assessment. That seems significant, especially since Hillary has also insisted that there were no national-security implications from the use of her unauthorized and unsecured e-mail server. If that was the case, the FBI would have certainly ascertained that by now, and would have no need to withhold the documents from the court hearing the FOIA case — and wouldn’t need to justify it with a second secret filing.
Update: It’s going to be very awkward indeed if the FBI investigation returns a criminal referral and the DoJ declines to pursue it after these declarations, no?