Judges question public interest served by releasing drafts of unfiled Clinton indictment

Hillary Clinton holds her book "It Takes A Village" as she sits on stage at the Warner Theatre in Washington, Monday, Sept. 18, 2017, during a book tour event for her new book "What Happened" hosted by the Politics and Prose Bookstore. (AP Photo/Carolyn Kaster)

A skeptical panel of appellate judges questioned why drafts of an unfiled indictment against Hillary Clinton should be made public Friday, more than 20 years after prosecutors opted not to pursue charges against the then-first lady.

At issue are drafts of an indictment prepared by the Office of the Independent Counsel investigating Hillary and President Bill Clinton’s role in events surrounding the Whitewater Development Corporation in Arkansas in the 1980s. Publicly released reports establish that prosecutors believed Hillary Clinton's answers under oath to questions regarding her involvement were false and that charges were considered.

Judicial Watch, a government watchdog organization that has previously sought and obtained many documents relating to Clinton's tenure as first lady and as secretary of state, maintains that the drafts would provide a greater understanding of the prosecutors’ investigation and Clinton’s conduct.

Justice Department lawyers representing the National Archives argue, however, that the fact that no indictment was ever filed would make releasing the drafts a violation of Clinton's privacy.

Both sides made their case to a three-judge panel at the U.S. Court of Appeals in D.C. on Friday morning. Judges David Tatel, Judith Rogers, and Laurence Silberman repeatedly pressed Judicial Watch Director of Litigation Paul Orfanedes to explain why there is an extraordinary public interest in seeing the documents that supersedes Clinton's rights.

Orfanedes argued there is a "weighty interest" in assessing how close to a real indictment the drafts got.

"We're interested in seeing how final of a document it was," he said.

In 2015, Judicial Watch sought copies of at least three drafts of indictments prepared against Clinton in the mid-1990s. According to the group's filings, the indictments involve allegations that Clinton lied and withheld evidence from federal investigators regarding her representation of Madison Guaranty Savings & Loan while working at Rose Law Firm in Little Rock, Arkansas.

Clinton's billing records turned up in the White House after a relevant statute of limitations expired, timing critics have long considered highly suspicious.

In 1999, Deputy Independent Counsel Hickman Ewing testified that he prepared an indictment for obstruction of justice and perjury, but it was ultimately abandoned.

According to the final report of the investigation, the special counsel determined “a trier of fact would not conclude, beyond a reasonable doubt, that Mrs. Clinton’s recollection was knowingly false.”

The National Archives refused to release the documents, stating it must protect grand jury secrecy and Clinton's privacy. Judicial Watch claims the 2001 release of the independent counsel's final report and a summary of evidence already eliminated any privacy or secrecy in the case. A district court ruled against the organization last fall.

In court Friday, Orfanedes suggested the documents would help the public determine whether prosecutors "pulled their punches because it was the president's wife."

Judge Silberman questioned whether it would be "grotesquely unfair" to Clinton to publicize allegations that were never formally made, but Orfanedes said the reports already released make clear that prosecutors believed her statements were untrue.

U.S. Attorney Nicolas Riley acknowledged circumstances might exist where the release of a draft indictment is justified, but he insisted this is not such a case.

"There is a public interest," he said. "It is outweighed by the privacy interest."

According to Judicial Watch President Tom Fitton, though, this is exactly the kind of exceptional case that necessitates releasing the documents.

“Mrs. Clinton was the spouse of a president, a top government official, a senator, a two-time presidential candidate, she’s still in politics,” he said in an interview. “What special counsels do, what independent counsels do is still of great public interest. How top government officials engage and how they are treated by prosecutors is of great public interest.”

The Judicial Watch position rests primarily on the voluminous evidence from the Whitewater investigation that has already been made public, including names of dozens of grand jury witnesses and the substance of their testimony. In Orfanedes' view, the details of Clinton's alleged misconduct are already widely known, so there is no privacy interest left to violate.

"There's a mountain of evidence available," he told the judges.

Judge Tatel countered that the vast amount of public information about the case may reduce the value of the knowledge that could be gleaned from the drafts.

"The record is not complete of what the prosecutor did" without these documents, Orfanedes said. He also noted that Judicial Watch has no objection to redacting truly sensitive information about the grand jury proceedings.

According to government’s appellate brief, there are “roughly a dozen indictment drafts” that vary from three pages to 40 in length, and it is impossible to segregate some portions for public release without disclosing grand jury information.

In its filings, the government disputes the proposition that the many details of the case that have been made public eliminate the need to protect the information that has not.

“The prior disclosures largely address different material than do the drafts and, even to the extent that they contain any overlapping material, disclosing the drafts would still reveal new information by singling out which evidence was actually presented to the grand jury,” the brief states.

Fitton insisted there is valuable insight that can only be learned from reviewing the drafts.

“Were they serious about prosecuting her and they pulled back at the last minute?” he said. “If the draft indictment looks like a bunch of gobbledygook and evidently was never going to go anywhere, that will be interesting, but if it’s a final product or near-final product, you have to ask additional questions as to why they ultimately didn’t file it.”

The release of a draft of an unfiled indictment would be highly unusual. Orfanedes was unable to cite any cases in which that has occurred, and the judges expressed concern that doing so would undermine the secrecy of the grand jury process.

Fitton rejected the notion that unsealing the Clinton drafts would create a dangerous precedent for violating the privacy of other investigative subjects who are not charged in future cases.

“This is an extraordinary circumstance in the sense that the grand jury material is already out there in so many ways,” he said. “Everyone knows Mrs. Clinton was investigated, everyone knows what prosecutors were concerned about. Typically speaking, if someone is investigated and not charged, that sort of information is not publicly disclosed.”

Although the judges worried that the release of the drafts would be misinterpreted on the internet as an official accusation, Orfanedes suggested after the hearing that that ship has already sailed.

“It’s Mrs. Clinton,” he said. “Some people will see whatever they want. She was not indicted, that’s a historical fact. We are interested in seeing how close.”

Alex Howard, deputy director of the Sunlight Foundation, said the documents could have value in shedding light on the history of the Clinton administration, but the case raises questions about what information should be subject to disclosure and when.

“It’s really important to think through the broader issues that are outside of Clinton specifically,” he said.

Disclosure of grand jury information could have an impact on how future prosecutors and grand juries operate, how attorneys advise their clients, and create potential Fifth Amendment issues. According to Howard, there is a risk of allowing what he described as “an individual case and an ideologically-motivated suit” to establish a precedent that could cascade through the legal system.

That said, Freedom of Information statutes typically impose a 25-year limit on keeping material confidential. In a case like this, Howard suggested, Congress might determine documents should be sealed longer due to the potential implications. Even if the court concludes the drafts cannot be released now, though, there may very well come a time when they can be.

“Something isn’t secret forever,” he said.

Although the Office of the Independent Counsel that drove the Whitewater investigation has been abolished, Orfanedes stated in court that questions about the operation of a special counsel are "more timely now than ever" with former FBI Director Robert Mueller conducting an independent investigation involving President Trump.

"The actors involved in that situation are still around. They're giving book tours around the country," he added, referring to Clinton’s tour promoting “What Happened,” her memoir of the 2016 campaign.

Fitton described the Justice Department’s continued opposition to his request as “disappointing,” given that the attorneys are now answerable to President Donald Trump, Clinton’s general election opponent who frequently denounced her as “crooked” and called for her imprisonment.

“I think the initial decision to keep this information away from us is as much about politics as it is about the law," he said, "and the Trump appointees now running the Justice Department, you would think would have just corrected that really improper legal stance but they’re doubling down on it.”

Fitton said it could be months before the judges reach their decision. Despite the organization’s request that documents be released regarding Clinton that normally would not be, he denied that Judicial Watch is asking the court to treat Clinton differently from other figures.

“We’re asking the law be applied to Mrs. Clinton’s interests the way they would to any other U.S. citizen, which is you do a balancing test,” he said. “Does she have a privacy interest that outweighs the public interest in this information? I don’t think she does. And I don’t think anyone reasonably could suggest she does.”

close video ad
Unmutetoggle ad audio on off