U.S. Justice Department in Washington. Credit: Mike Scarcella/ NLJ

The Trump administration has declined to back Hillary Clinton as she tries to block a rare court order requiring the former high-ranking cabinet official to sit for a deposition in a public-records lawsuit that confronts her email practices during her time as the U.S. secretary of state.

Clinton, represented by a team from Williams & Connolly, and former aide Cheryl Mills last month appealed a Washington trial judge's order to the U.S. Court of Appeals for the D.C. Circuit. Their case tests the high bar that plaintiffs must hurdle to secure a deposition involving a current or former cabinet secretary. Mills is represented by lawyers from the litigation boutique Wilkinson Walsh.

The U.S. State Department, represented by the Justice Department, said in a recent filing at the D.C. Circuit that the government "does not support the extraordinary relief of mandamus due to the unique circumstances of this case." The Justice Department historically has resisted efforts by plaintiffs to depose high-ranking officials; the government's legal team in the Clinton case argued that the dispute over Clinton's email practices falls outside the realm in which the United States might otherwise have fought efforts to depose her.

"This is the rare situation in which discovery of a former cabinet secretary was not authorized for the impermissible purpose of probing internal government decisionmaking regarding official policy, but rather to focus on the impact on FOIA compliance of a former official's unusual decision to use a private email server to systematically conduct large volumes of official business," Mark Freeman, a Justice Department appellate lawyer, wrote in the April 3 filing.

Clinton's lawyers, including Williams & Connolly partner David Kendall, on Friday questioned the Justice Department's position and its assertions in the D.C. Circuit. Clinton's lawyers argued that the Justice Department, in the trial court, had opposed efforts by the plaintiff, Judicial Watch, to obtain more "discovery" in the lawsuit involving Clinton's email practices.

"This case presents the extraordinary circumstance of a district court ordering depositions of a former secretary of state and her chief of staff under the further extraordinary circumstance of FOIA discovery, which should only be granted in 'rare' cases," Kendall wrote in Clinton's latest court filing.

Clinton's lawyers also pointed to a dispute in 2018 in New Jersey in which the Justice Department, embracing the 1941 Supreme Court's decision in the case United States v. Morgan, argued that the plaintiffs should not be allowed to depose a former director of the U.S. Customs and Immigration Enforcement agency.

"The Supreme Court has held that high-ranking government officials are generally not required to sit for a deposition," an assistant U.S. attorney wrote in the New Jersey filing. The government argued in the case that the "Morgan doctrine" protects former high-ranking officials from being deposed.

Kendall questioned the Justice Department statement that Judicial Watch's effort to depose Clinton doesn't touch "internal government decisionmaking regarding official policy." The Justice Department earlier had argued in Washington's federal trial court, in an unrelated case, that Clinton's email communications were within "the scope of her office as secretary of state."

Judicial Watch filed the suit in 2014 in U.S. District Court for the District of Columbia seeking State Department communication, including Clinton-related emails, about the 2012 terror attack at the U.S. government mission in Benghazi, Libya. Ambassador J. Christopher Stevens was among four Americans killed in the attack.

Lawyers for Mills contend there is nothing more Judicial Watch can obtain from her, having been already deposed once before. Clinton has already provided written answers in a related suit about her emails, her lawyers have argued. Lawyers for Mills and Clinton contend Judicial Watch hasn't met the "extraordinary circumstances" threshold for a deposition.

U.S. District Judge Royce Lamberth in Washington. Credit: Diego M. Radzinschi / The NLJ

Clinton and Mills are challenging a March order from U.S. District Judge Royce Lamberth. Clinton's written answers about her email practices as secretary of state "were either incomplete, unhelpful, or cursory at best. Simply put, her responses left many more questions than answers," Lamberth said in his order.

"The court has considered the numerous times in which Secretary Clinton said she could not recall or remember certain details in her prior interrogatory answers," Lamberth wrote. "In a deposition, it is more likely that plaintiff's counsel could use documents and other testimony to attempt to refresh her recollection." Lamberth added: "The court agrees with Judicial Watch—it is time to hear directly from Secretary Clinton."

Tom Fitton, president of Judicial Watch, said in a recent statement that Clinton's effort to stop a deposition was "even too much for her defenders at the State and Justice Department." Fitton has called Clinton's appeal an effort to "delay truth and accountability for her email conduct and how it impacted the people's 'right to know' under FOIA."

Lawyers for Clinton and Mills contend Judicial Watch has not show that the information it seeks is not otherwise "present in the large, existing record, which includes interrogatory responses from Secretary Clinton, other testimony, and the FBI's summaries of its interviews of Secretary Clinton and Ms. Mills."

The D.C. Circuit has not said whether it will hold any argument in the case. The court has been ruling on the briefs in other cases, or holding arguments telephonically, amid the coronavirus crisis.

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