Politico – by Josh Gerstein
The National Archives is fighting a lawsuit trying to force disclosure of several draft indictments of Hillary Clinton prepared by a Whitewater prosecutor in the 1990s.
In a brief filed late Tuesday, Justice Department lawyers and the Archives argue that disclosure of the draft indictments would lead to an unwarranted invasion of Clinton’s privacy and violate a court rule protecting grand jury secrecy.
“Despite the role that Mrs. Clinton occupied as the First Lady during President Clinton’s administration, Mrs. Clinton maintains a strong privacy interest in not having information about her from the files of the Independent Counsel disclosed,” wrote Martha Wagner Murphy, chief of the Archives “special access” branch that stores records of former independent counsels. “As an uncharged person, Hillary Rodham Clinton retains a significant interest in her personal privacy despite any status as a public figure.”
The conservative group Judicial Watch, which filed suit for the records in October under the Freedom of Information Act, is arguing that Clinton’s ongoing bid for the presidency reinforces the public interest in records about her alleged misconduct.
“She’s one of the most well-known women in the world, seeking the office of the presidency and her privacy interests outweigh the public interest in knowing what’s in that indictment? It’s absurd and it’s shameful that the administration is proposing this,” Judicial Watch President Tom Fitton said in an interview. “This is a political decision to protect her candidacy—because it is laughable, legally.”
The Archives and Justice Department were dismissive about the impact of Clinton’s presidential bid on public access to the records.
“While there may be a scintilla of public interest in these documents since Mrs. Clinton is presently a Democratic presidential candidate, that fact alone is not a cognizable public interest alone under FOIA, as disclosure of the draft indictments would not shed light on what the government is up to,” Murphy wrote.
“Her interest in avoiding disclosure of the drafts is not diminished by the fact that she is a former public official who is running for President,” Justice Department lawyers added in their brief.
Law enforcement records about living people who did not face charges in criminal investigations normally are not released under FOIA, or the names are sanitized from the records before they’re published. However, sometimes judges have ordered the release of such records in cases involving public officials.
Despite the usual practice, though, the Archives has released fairly detailed information about the independent counsel’s focus on Hillary Clinton. Just last week, Judicial Watch announced it had received 246 pages of records describing the crimes some prosecutors believed were committed in connection with the Whitewater land deal and related matters. Some of the memos are from the “HRC Team” in the counsel’s office—apparently a team focused on Clinton. One discusses the jury appeal or lack thereof of a case based solely on circumstantial evidence. One prosecutor put the chance of a conviction for Clinton at 10 percent.
It’s not clear from the government’s court filings why the draft indictments would be more sensitive than that kind of analysis, but the new submissions do argue that the drafts are covered by grand jury secrecy. In its initial response to Judicial Watch, the Archives relied solely on Clinton’s privacy (and that of others) and did not mention the grand jury secrecy issue. But the brief filed Tuesday contends the drafts would provide insight into the grand jury’s activities by revealing the identities of witnesses and that they quote from grand jury testimony.
Fitton said that “if Mrs. Clinton was being truly transparent,” she would provide a privacy waiver that could ease release of the records.
Spokesmen for the Clinton campaign did not respond to a request for comment on the legal filings.
Josh Gerstein is a senior reporter for POLITICO.