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Politico    Nine months after the presidential election was decided, a federal judge is ordering the State Department to try again to find emails Hillary Clinton wrote about the Benghazi attack.

U.S. District Court Judge Amit Mehta ruled that the State Department had not done enough to try to track down messages Clinton may have sent about the assault on the U.S. diplomatic compound on Sept. 11, 2012 — an attack that killed four Americans, including the U.S. ambassador to Libya.

In response to Freedom of Information Act requests, State searched the roughly 30,000 messages Clinton turned over to her former agency at its request in December 2014 after officials searching for Benghazi-related records realized she had used a personal email account during her four-year tenure as secretary.  The State Department later searched tens of thousands of emails handed over to the agency by three former top aides to Clinton: Huma Abedin, Cheryl Mills and Jake Sullivan. Finally, State searched a collection of emails the FBI assembled when it was investigating Clinton’s use of the private account and server.

In all, the State Department found 348 Benghazi-related messages or documents that were sent to or from Clinton in a period of nearly five months after the attack. However, the conservative watchdog group Judicial Watch argued that the search wasn’t good enough because the State Department State never tried to search its own systems for relevant messages in the official email accounts of Clinton’s top aides.

In a 10-page ruling issued Tuesday, Mehta — an Obama appointee — agreed.

“To date, the State Department has searched only data compilations originating from outside sources — Secretary Clinton, her former aides, and the FBI. … It has not, however, searched the one records system over which it has always had control and that is almost certain to contain some responsive records: the state.gov e-mail server,” Mehta wrote.

“If Secretary Clinton sent an e-mail about Benghazi to Abedin, Mills, or Sullivan at his or her state.gov e-mail address, or if one of them sent an e-mail to Secretary Clinton using his or her state.gov account, then State’s server presumably would have captured and stored such an e-mail. Therefore, State has an obligation to search its own server for responsive records.”

Justice Department lawyers representing the State Department argued that making them search other employees’ accounts for Clinton’s emails would set a bad precedent that would belabor other FOIA searches. But Mehta said the circumstances surrounding Clinton’s email represented “a specific fact pattern unlikely to arise in the future.” A central premise of Mehta’s ruling is that the State Department’s servers archived emails from Clinton’s top aides. What’s not clear is if that happened regularly or reliably.

State Department officials have said there was no routine, automated archiving of official email during Clinton’s tenure. Some officials did copy their mailboxes from time to time and put archived message folders on desktop computers or servers, so there may still be messages from the aides, but the FBI may already have acquired some during its inquiry.

A State Department spokesperson declined to comment on the judge’s decision. A Justice Department spokesman said: “We are reviewing the judge’s opinion and order.”

 

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