WASHINGTON (Legal Newsline) – Cheryl Mills, personal counsel to presidential candidate Hillary Clinton and former deputy counsel to President Bill Clinton, bore a judge’s blame for a bad search of email at the White House in 1998.
U.S. District Judge Royce Lamberth, who presided over an invasion of privacy suit against the Clintons, described the handling of the search as “loathsome.”
“Mills’s totally inadequate performance of duty directly led to all the adverse criticism the White House suffered in this document production fiasco,” Lamberth wrote.
He wrote that she failed miserably in following up.
This May, at a deposition for a suit that Judicial Watch filed over Secretary of State Clinton’s email, she testified that she didn’t recall his opinion.
On further questioning, she said she didn’t read it. She said it was hurtful.
“I come to government because I try to do my best, and this was obviously an opinion that was very critical of me personally,” Mills said at deposition.
“I recognize that I’m not perfect and I certainly wish I was.”
On the current topic of Clinton’s choice to set up private email, she said, “The knowledge that I have has come through my representation of her as counsel.”
Judicial Watch’s suit alleges that Clinton chose private email in order to thwart the Freedom of Information Act.
Judicial Watch deposed Mills because she led Secretary Clinton’s staff.
District Judge Emmit Sullivan, who presides over the suit, posted the deposition.
Mills’ previous brush with electronic mail trouble developed from a suit that started in President Clinton’s first term, when she worked as his deputy counsel.
In 1996, Congressional investigators found that the Federal Bureau of Investigation gave the White House a confidential file on a former White House employee.
The White House then revealed that in 1993 and 1994, it requested and received hundreds of FBI files on employees of Presidents Reagan and Bush.
Among other information, the files contained reports of extramarital affairs, crimes and medical matters.
News organizations called the situation “Filegate.”
Attorney General Janet Reno referred the case to Ken Starr, independent counsel on real estate transactions in Arkansas.
The White House identified personnel security chief Craig Livingstone as the one who requested and received the files.
When the House Government Reform and Oversight Committee summoned him to a hearing, he announced his resignation and denied any improper motive.
He and his assistant, Anthony Marceca, testified that they asked the Secret Service for a list of employees and the Secret Service gave them an outdated list.
Five former White House employees filed a Privacy Act suit against the FBI, the Office of the President, Livingstone, and Marceca.
Against private citizen Hillary Clinton, they alleged invasion of privacy.
The employees hired Judicial Watch founder Larry Klayman, who sought $90 million in damages on behalf of a class of former employees.
Republican presidential candidate Bob Dole tried to stir suspicion about Filegate, but the topic swayed few voters and Dole lost.
Starr’s investigation advanced slowly in 1997, and so did the privacy suit.
In 1998, White House computer specialist Daniel Barry noticed that his automated record management system failed to capture an incoming message.
Former intern Monica Lewinsky had sent the message in conversation with White House employee Ashley Raines.
Barry found that his system lost a few other messages from Lewinsky to Raines, but that it captured messages from both in hundreds of conversations.
He shared the mystery around his office, and he filed an incident report.
Later that year, a contractor training a new contractor found the same problem.
He traced it to a server that certain employees used, Mail2, and found that someone had wrongly coded the server as MAIL2.
A report reached administration director Ada Posey, who assigned general administration counsel Mark Lindsay to fix the problem.
He sent a report to the President’s assistant for management and administration, Virginia Apuzzo, and she sent a copy to Presidential counsel Charles Ruff.
Ruff met with Mills, his deputy, and placed her in charge.
Mills would later testify that she thought the problem related only to a subpoena that Starr served for his investigation of the President’s behavior with Lewinsky.
Ruff would testify that the Lewinsky matter was his preeminent concern.
Next, the White House asked Lindsay to retrieve all email between Lewinsky and four or five individuals in the White House.
Lindsay referred the request to a technician, who found no such messages.
The technician, recalling Barry’s mystery, took it on himself to retrieve hundreds of conversations between Raines and Lewinsky.
He printed them and gave them to Lindsay, who sent them to Mills.
She gave them to colleague Michelle Peterson, leader of the team working on the Lewinsky matter.
Peterson compared them to records the White House had previously produced to Starr on the Lewinsky matter, and found they matched.
She would testify that she felt relief, knowing the White House hadn’t kept any messages from Starr.
Peterson told Mills that Mail2 wasn’t an issue.
Mills told Ruff, and that settled it.
No one tried to find out whether the problem affected any other White House responses to information requests, from litigants or the public.
On Nov. 19, 1998, at a House judiciary committee hearing on impeachment of the President, Starr cleared him and Hillary of wrongdoing in Filegate.
Starr said he found no evidence that anyone used the files for improper purposes.
His successor, Robert Ray, would later clear Livingstone and Marceca.
In the privacy suit, Klayman pressed for email and more email.
Klayman learned of the Mail2 problem in 2000, and moved for an evidentiary hearing.
He sought sanctions, alleging deliberate obstruction.
Lamberth held a hearing that ran for months, and Filegate made headlines again.
Ruff testified that when he met with Mills, he wasn’t aware of any email request from Judicial Watch.
He admitted he was mistaken in his understanding of the impact of the problem on prior document productions.
He took responsibility for the failure of his office to understand the true nature of the problem.
“If there had been any sense on my part or the part of any of the members of my staff that in fact there was a problem that persisted or that infected our prior productions, we would have done something about it,” Ruff said.
Mills testified that Ruff told her certain emails might or might not have been captured with respect to the Lewinsky investigation.
She said Ruff didn’t show her the report Lindsay sent to Apuzzo.
She said she assumed Lindsay would communicate to the office of administration whatever steps it needed to take to ensure that it located any missing email.
Lamberth took it under advisement in January 2001.
In March, Klayman moved for a hearing on the evidentiary hearing. He didn’t get it, and in September he moved for a status conference. Lamberth granted it a year later, and held it in October 2002.
He granted a hearing on the evidentiary hearing in 2003, but he set no date.
Klayman left Judicial Watch in November 2013, and the group lost interest. So did Lamberth, who didn’t issue an opinion until 2008.
He ruled that the White House had complied with all orders regarding email.
“Millions of emails that were erroneously not captured by the automated record management system were restored into a searchable format,” he wrote.
Lamberth found that neither the White House nor its counsel engaged in any obstruction or acted in bad faith to abuse the court’s processes.
He found that the Mail2 problem resulted from a contractor’s error and not from any calculated act on the White House’s part.
He wrote that essential errors in Ruff’s office were caused by lack of familiarity with computer language.
Lamberth wrote that when Mills assumed that Lindsay would communicate the steps that needed to be taken, “This was the most critical error made in this entire fiasco.”
“Ruff properly followed up by turning the problem over to his deputy to handle. Mills’s actions were totally inadequate to address the problem,” he wrote.
“Her failure was only compounded when Lindsay never raised a follow up question about what Ruff was doing and how the issue was being addressed and the problem solved.
“Lindsay’s actions were those of the perfect bureaucrat – hand off the problem to someone else and then wash your hands of it.
“While the court finds the actions of both Lindsay and Mills to be loathsome, there is simply no evidence that they were motivated by an intent to engage in a conspiracy or to obstruct justice.”
Lamberth granted summary judgment to defendants in 2009, and appellate court judges affirmed him in 2010.
This May, at her deposition, Mills didn’t recall testifying before Lamberth.
“I don’t believe I’ve had occasion to meet judge Lamberth, but that might be just inaccurate,” she said.
Cotca told her that he called her conduct loathsome.
Mills said, “Loathsome?”
Cotca asked if she read his opinion.
Mills said, “I have not had occasion to read the opinion.”
Cotca asked her why Clinton chose not to have a government email account.
Mills said, “I don’t know that I can speak for her. I think she has spoken for this herself and said that part of what she was seeking was obviously the convenience of being able to use a common device, and so that’s what she did.”
Cotca asked if she discussed with anybody the Secretary’s email being subject to the Freedom of Information Act.
Mills said, “It was my impression that when she emailed, because it was her practice to email people on their State accounts when she was doing State business, that any of those communications would be captured and maintained by the State Department system.”
Cotca asked about communications with others outside the department.
Mills said, “I don’t know what would have been their process for how they would have captured that.”
She said, “It would have been smarter for her to have had, or better for her to have had, an account and if she had it to do over again, she would.”
Cotca asked if it occurred to her that communications relating to State business weren’t available in response to freedom of information requests.
Mills said, “I wish it had, but no is the answer.”
Cotca asked if she was aware of Clinton deleting federal records on her email account when she was Secretary.
Mills said, “I don’t know if she did or she didn’t.”
As time ran out, Cotca asked again if she remembered Lambreth’s opinion.
Mills said, “I have not read the opinion, so to remember something I haven’t read is a little bit different.”
She said she saw media reports about the opinion and comments he made.
Cotca said, “Did that at all impact you with respect to perhaps being more sensitive with respect to making sure that records are preserved and appropriate steps are taken while conducting searches and responses to document requests during litigation?”
Mills said, “Whenever the public or a judge or anyone thinks that you haven’t done what they would have liked to have seen you done, or done your best, that’s something that has an impact.”
Mills has asked Sullivan to suppress video of her deposition. He has temporarily withheld video of all depositions.