                                UNITED STATES DISTRICT COURT
                                FOR THE DISTRICT OF COLUMBIA



 JUDICIAL WATCH, INC.,

          Plaintiff,
                   v.                                          Civil Action No. 15-785 (JEB)
 REX W. TIILLERSON, in his official
 capacity as U.S. Secretary of State,

           Defendant.
 -------------------------------------------------------

 CAUSE OF ACTION INSTITUTE,

          Plaintiff,

                    v.

 REX W. TILLERSON, in his official                             Civil Action No. 15-1068 (JEB)
       capacity as U.S. Secretary of State,
       and
 DAVID S. FERRIERO, in his official
       capacity as U.S. Archivist,

           Defendants.


                                       MEMORANDUM OPINION

        The 2016 presidential election may have come and gone, but Plaintiffs Judicial Watch

and Cause of Action Institute’s quest for Hillary Clinton’s emails lives on. As most readers will

remember, Clinton used private email accounts during her tenure as Secretary of State,

embroiling the government in myriad Freedom of Information Act suits. In this case, however,

Plaintiffs have taken a different tack, alleging a violation of the Federal Records Act. That is,

they claim Defendants State Department and the National Archives and Records Administration

failed to maintain records of Clinton’s emails and must now seek the Department of Justice’s

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assistance in their recovery. Most broadly characterized, Plaintiffs’ suit pertains to tens of

thousands of communications. At this stage, however, the parties have largely zeroed in on a

sliver of that trove — to wit, emails sent by Clinton on two Blackberry accounts during her first

weeks in office.

       The present controversy is narrower still. To establish its good-faith recovery efforts, the

Government has submitted a declaration describing grand-jury subpoenas issued to Clinton’s

service providers. The catch? It offers the full version for in camera and ex parte review only.

Plaintiffs have responded with a Motion to Produce, arguing that to the extent this Court might

rely on the declaration, they must have unfiltered access. After reviewing the document in

camera, the Court concludes that it largely rehashes information already made public, thus

obviating any need for secrecy. The Court will therefore grant Plaintiffs’ Motion in large part

and, subject to a very limited exception, order that Defendants resubmit an unredacted version of

the declaration.

I.     Background

       Plaintiffs are two non-profit organizations, which describe themselves as dedicated to

promoting “transparency, accountability, and integrity in government.” JW Compl., ¶ 3; COA

Compl., ¶ 21. In the wake of reporting that former Secretary Clinton had used a personal email

account and server to “conduct official government business,” both organizations became

concerned that federal records had been unlawfully removed from the State Department. See JW

Compl., ¶ 5. Judicial Watch therefore filed suit on May 2015, and Cause of Action joined the

mix two months later. Both alleged violations of the Federal Records Act, 44 U.S.C. §§ 2101 et

seq., 2901 et seq., 3101 et seq., 3301 et seq., “a collection of statutes governing the creation,

management, and disposal of records by federal agencies.” Public Citizen v. Carlin, 184 F.3d



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900, 902 (D.C. Cir. 1999). Plaintiffs claimed principally that the State Department had failed to

retain and search agency records, such that the current Secretary of State must “initiate[] action

through the attorney general to recover the Clinton emails.” JW Compl., ¶¶ 7, 29; COA Compl.,

¶¶ 16-17, 68.

       This Court dismissed the suit as moot. See Judicial Watch, Inc. v. Kerry, 156 F. Supp. 3d

69, 73 (D.D.C. 2016). To proceed, it reasoned, Plaintiffs must allege an ongoing injury under

the FRA, but both NARA and State had already taken substantial steps to recover more than

55,000 pages of Clinton’s emails. Id. 76-78. The Court of Appeals reversed. See Judicial

Watch, Inc. v. Kerry, 844 F.3d 952, 953 (D.C. Cir. 2016). It allowed that “actions taken by the

Department and the FBI might have mooted appellants’ claims by securing custody of all emails

that the Attorney General could have recovered in an enforcement action.” Id. at 955 (emphasis

added). But although the tag-team efforts “bore some fruit,” the Court of Appeals believed that

“shaking the tree harder . . . might [] bear more still.” Id. Specifically, it highlighted that

Clinton had used a Blackberry account during her first weeks in office — from January 21, 2009,

to March 18, 2009 — and the record showed no effort by State or the FBI to recover those

emails. Id. at 955-56. The Court of Appeals then held that the case was not moot “[a]bsent a

showing that the requested enforcement action could not shake loose a few more emails.” Id. at

955. It noted, however, that Defendants might once again raise mootness on remand. Id. at 956-

57.

       Now back for round two, Defendants have accepted the invitation and renew their Motion

to Dismiss on mootness grounds. See ECF No. 33. To that end, they have explained their efforts

to track down the remaining Clinton emails, including those recovered by the FBI during its

investigations. See, e.g., id., Exhs. 1-4. Before the parties finish briefing, however, the Court



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must pause to resolve a narrower controversy: whether Defendants can submit one document —

the Second Declaration of FBI Special Agent E.W. Priestap — in camera and ex parte in support

of their Motion. Priestap previously submitted an unredacted declaration (his “First

Declaration”) and there tipped off Plaintiffs that the FBI had issued grand-jury subpoenas to

third-party providers. See Def. MTD, Exh. 1 (Declaration of E.W. Priestap), ¶ 4. Defendants

then followed up with Preiestap’s Second Declaration, but this time redacted large portions of

the public version. See Def. Opp. to Mot. to Produce at 4 n.1; see also ECF 43-3, Exh. 3. The

Court discusses the disputed Second Declaration in more detail below, but for now, suffice it to

say that it offers (a few) more specifics about the grand-jury subpoenas.

II.    Legal Standard

       Federal Rule of Criminal Procedure 6(e) bars the disclosure of matters occurring before a

grand jury. See Fed. R. Crim. P. 6(e)(2)(B). This is not to say, however, that Rule 6(e) draws “a

veil of secrecy . . . over all matters occurring in the world that happen to be investigated by a

grand jury.” SEC v. Dresser Indus., Inc., 628 F.2d 1368, 1382 (D.C. Cir. 1980) (en banc). On

the contrary, “[t]here is no per se rule against disclosure of any and all information which has

reached the grand jury chambers.” Senate of Puerto Rico v. DOJ, 823 F.2d 574, 582 (D.C. Cir.

1987). Indeed, Rule 6(e) includes a carve-out, which allows a court to authorize disclosure of “a

grand jury matter . . . in connection with a judicial proceeding” “at a time, in a manner, and

subject to any conditions that it directs.” Fed. R. Crim. P. 6(e)(3)(E)(i).

       To trigger that provision, a party must show that the sought-after information “[1] is

needed to avoid a possible injustice in another judicial proceeding, [2] that the need for

disclosure is greater than the need for continued secrecy, and [3] that their request is structured to

cover only material so needed.” Douglas Oil Co. of Cal. v. Petrol Stops Nw., 441 U.S. 211, 222



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(1979). This standard is “a highly flexible one . . . and sensitive to the fact that the requirements

of secrecy are greater in some situations than in others.” United States v. Sells Eng’g, 463 U.S.

418, 445 (1983). Although the party seeking disclosure must show “with particularity” why it

needs the information, see United States v. Procter & Gamble Co., 356 U.S. 677, 682 (1958), it

will face a “lesser burden” as “the considerations justifying secrecy become less relevant.”

Douglas Oil, 441 U.S. at 223.

III.   Analysis

       This case largely comes down to a simple balancing act between “the need for

disclosure” and “the need for continued secrecy.” Douglas Oil, 441 U.S. at 222. On the one

hand, Plaintiffs argue that disclosure is crucial, as they must access any facts that Defendants use

to support their Motion to Dismiss. See Mot. to Produce at 7. To refresh, that Motion turns on

whether Defendants have already exhausted all avenues for email recovery, such that any action

under the FRA would be — to adopt the D.C. Circuit’s metaphor — fruitless. As a result, they

submitted the Second Declaration, averring that the FBI “undertook all reasonable and

comprehensive efforts” to recover relevant emails and providing supporting evidence. See

Second Decl., ¶ 11. Not surprisingly, Plaintiffs are loath to take the Government’s word for it.

Ordinarily, they argue, in camera and ex parte review is appropriate only “when a party seeks to

prevent use of the materials in the litigation,” such as by asserting an evidentiary privilege.

Abourezk v. Reagan, 785 F.2d 1043, 1061 (D.C. Cir. 1986). In that instance, a court may

properly inspect the evidence “alone for the limited purpose of determining whether the asserted

privilege is genuinely applicable.” Id. This case assumes a different posture: The Government

hopes it can rely on its grand-jury subpoenas while still shielding their contents from Plaintiffs




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and the public. “Only in the most extraordinary circumstances,” however, “does [] precedent

countenance court reliance upon ex parte evidence to decide the merits of a dispute.” Id.

       On the other hand, the Government seeks to preserve the secrecy of grand-jury

proceedings, an interest that would typically weigh heavily in its favor. As an initial matter,

though, the Second Declaration largely steers clear of Rule 6(e)’s bread and butter: “the

identities of witnesses or jurors, the substance of testimony as well as actual transcripts, the

strategy or direction of the investigation, the deliberations or questions of jurors, and the like.”

In re Motions of Dow Jones & Co., Inc., 142 F.3d 496, 500 (D.C. Cir. 1998) (internal quotation

marks omitted). Rather, it recounts one agent’s description of grand-jury subpoenas. The D.C.

Circuit “has recognized that the term ‘grand jury subpoena’ is in some respects a misnomer,

because the grand jury itself does not decide whether to issue the subpoena; the prosecuting

attorney does.” Lopez v. DOJ, 393 F.3d 1345, 1349 (D.C. Cir. 2005) (quoting Doe v. DiGenova,

779 F.2d 74, 80 & n.11 (D.C. Cir. 1985)). Although such a subpoena likely falls under Rule

6(e)’s purview — for instance, when it betrays “the direction of the relevant investigation,” id. at

1350 — the Government’s broad summary of its generic subpoenas starts with a somewhat more

tenuous claim to secrecy.

       More importantly, the D.C. Circuit’s case law “reflects the common-sense proposition

that secrecy is no longer ‘necessary’ when the contents of grand jury matters have become

public.” In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1138, 1140 (D.C. Cir. 2006). In

this case, the Government has already revealed that it issued grand-jury subpoenas to Clinton’s

service providers. See First Decl., ¶ 4. That information, then, “is sufficiently widely known

[such] that it has lost its character as Rule 6(e) material.” In re North, 16 F.3d 1234, 1245 (D.C.




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Cir. 1994). After reviewing the Second Declaration in camera, the Court confirms that

disclosure thereof would imperil little other secret information.

       The Second Declaration consists of 12 paragraphs, six of which are redacted. See Second

Decl., ¶¶ 1-11. The first three redacted paragraphs (mistakenly labeled Paragraphs 5, 5, and 6)

largely confirm what the Government had “discussed in [the] first declaration” — namely, that

Clinton used two Blackberry email accounts between January 21, 2009, and March 18, 2009.

Cf. First Decl., ¶ 4 (describing her use of hr15@mycingular.blackberry.net and

hr15@att.blackberry.net during that time period). It then overviews, as the First Declaration did,

the agency’s efforts to recover those emails, including by grand-jury subpoenas. Cf. id., ¶¶ 4, 10.

       Paragraph 7 lists the identities of subpoena recipients. Here, Defendants make their first

(and only) case for confidentiality: they ask the Court to shield those identities, as “secrecy is

critical to maintaining positive working relationships with [the providers] and other similarly

situated companies.” Def. Opp. at 5. This argument might have more force had Defendants not

already made public that 1) the FBI issued grand-jury subpoenas to “providers,” and 2) Clinton

used a “BlackBerry device with service initially from Cingular Wireless and later AT&T

wireless.” First Decl., ¶ 4. It’s not hard to connect the dots. See Josh Gerstein, FBI Confirms

Grand Jury Subpoenas Used in Clinton Email Probe, Politco (Apr. 27, 2017),

http://www.politico.com/blogs/under-the-radar/2017/04/27/hillary-clinton-emails-subpoenas-fbi-

237712 (“Priestap did not provide details about the subpoenas, although he suggested they were

served on AT&T Wireless and a firm it acquired, Cingular.”). There is thus little value in

redacting those identities, with one exception: the Second Declaration states that the FBI also

subpoenaed Clinton’s e-mail service provider. The agency has never previously disclosed the

identity of that company and thus maintains an interest in its secrecy. For Plaintiffs, it should



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suffice to know that the FBI subpoenaed a third party (and not, as they suggest, “Clinton’s staff

or attorneys”). See Reply at 4. Defendants may therefore continue to redact the email provider’s

name.

        Moving to Paragraphs 8 and 9, the Declaration states that no service providers retained

any data from Clinton’s accounts, and thus none could recover any relevant emails. The First

Declaration already said as much. Cf. First Decl., ¶ 4. Those paragraphs then add a few more

particulars, such as that the FBI complied with its statutory obligations by requesting only

“transaction information,” like subject lines and e-mail addresses, from the service providers.

Any observer could likely so surmise based on 18 U.S.C. § 2703, which limits the scope of

electronically stored information available with a grand-jury subpoena. The declaration also

reveals that the FBI reissued subpoenas to providers to double check that no data would be

available. Again, the bottom line is the same as the FBI’s public disclosures: its subpoenas

“produced no responsive materials, as the requested data was outside the retention time utilized

by those providers.” First Decl., ¶ 4. The Government asserts no interest in keeping those

details secret, and the Court detects no overriding reason to do so.

        That leaves Paragraph 10. This Paragraph, at least ostensibly, adds new information

about the scope of subpoenas: when the FBI discovered that Clinton had potentially transmitted

classified information to private third-party e-mail accounts, it sought “additional legal process.”

The paragraph might be read to suggest that the Bureau subpoenaed the provider information of

third parties, such as Clinton’s staff. But it provides no information on 1) which third parties had

classified information, 2) which providers, if any, were subpoenaed, and 3) the returns on any

subpoenas. And it is hardly news that the FBI used “legal process” to recover classified

information relayed to Clinton’s staffers. Most infamously, many a news outlet reported that the



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FBI obtained a search warrant for Clinton aide Huma Abedin’s emails. See, e.g., Matt Apuzzo et

al., Justice Department Obtains Warrant to Review Clinton Aide’s Emails, N.Y. Times (Oct. 30,

2016). The First Declaration alludes to the same incident. See First Decl., ¶ 14. Paragraph 10

— like the much of what came before it — thus reveals little to no secret information. The scale

therefore tips once again towards Plaintiffs’ need for disclosure.

       Finally, Defendants note that even if “this Court does grant [Plaintiffs’] motion . . . ,

[they] must then proceed to the court which empaneled the grand jury at issue,” to allow that

court to make a final determination about disclosure. See Def. Opp. at 6. Not so. It is true, as

Defendants say, that when the court that empaneled the grand jury differs from the court

considering a Rule 6(e) request, the two courts may cooperate. The latter, for instance, might

certify the question of disclosure to the grand-jury court. See, e.g., United States v. Alston, 491

F. Supp. 215, 216-217 (D.D.C. 1980). But as the Supreme Court has made clear, “[T]here will

be cases in which the court to whom the Rule 6(e) request is directed will be able intelligently

. . . to decide that disclosure plainly is inappropriate or that justice requires immediate disclosure

to the requesting party, without reference of the matter to any other court.” Douglas Oil, 441

U.S. at 231. This is such a case. While the grand-jury court may typically be better positioned

to evaluate the need for secrecy, the Defendants here have already let the grand-jury cat out of

the bag. For the reasons discussed above, there is little remaining information to keep secret, and

this Court can therefore appropriately order disclosure.

IV.    Conclusion

       For the foregoing reasons, the Court will substantially grant Plaintiffs’ Motion to Produce

and order that if the Government intends to rely on the Second Priestap Declaration, it must




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resubmit an unredacted version (except as to the identity of Clinton’s email provider). A

contemporaneous Order to that effect will issue this day.


                                                    /s/ James E. Boasberg
                                                    JAMES E. BOASBERG
                                                    United States District Judge

Date: August 31, 2017




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