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Judicial Watch Denied Whitewater Drafts

WASHINGTON (CN) — A federal judge Tuesday denied Judicial Watch's attempt to pry loose drafts of a proposed criminal indictment of Hillary Clinton that federal prosecutors never issued during the 1990s Whitewater investigation.

U.S. District Judge Reggie Walton ruled that Clinton's right to privacy outweighs public interest in disclosing the records, and that a court rule protects grand jury secrecy.

"Mrs. Clinton has a significant privacy interest in not re-visiting past criminal investigations, particularly when the investigation resulted in an indictment never being filed against her," Walton wrote in a 30-page ruling.

Judicial Watch is a conservative activist group founded by attorney Larry Klayman in 1994. Klayman later split from the group, filed dozens of lawsuits against President Bill Clinton, and has been gnawing at Hillary Clinton for her use of a private email server. The group claims that Hillary Clinton's standing as a former first lady, senator, secretary of state and now the Democratic presidential nominee, should outweigh privacy concerns.

Walton, a George W. Bush appointee, rejected that argument. Walton conceded that Hillary Clinton's privacy interest is somewhat diminished, but said she has not surrendered her full right to privacy. Nor did he agree that because there is a massive amount of public information available about the Whitewater investigation, that extinguishes her right to privacy in that.

"The fact that information about the independent counsel's investigation and potential indictment of Mrs. Clinton is readily available to the public does not extinguish Mrs. Clinton's privacy interest, as the plaintiff asserts," Walton wrote.

"Here, the plaintiff has not shown that the information contained in the drafts of the proposed indictment are widely available to the public, let alone to the extent that the privacy interest Mrs. Clinton has in the drafts is extinguished."

Hillary Clinton gave sworn testimony about her representation of Madison Guaranty, a savings and loan association that partnered with the Whitewater Development Corporation, and which became the subject of the Whitewater probe and the Clintons' real estate investments.

The independent counsel investigated whether she "had committed perjury, made false statements, or obstructed justice during those investigations," Walton wrote, but determined it could not prove beyond a reasonable doubt that Clinton committed a federal crime.

Judicial Watch sued the National Archives and Records Administration in October 2015, claiming there is a public interest in understanding the activities of the Office of the Independent Counsel and how it conducted its investigation.

But Walton said the group failed to raise the possibility of misconduct by the now defunct independent prosecutor. As such, the indictment drafts would reveal information only about Clinton and her character, rather than illuminate anything informative about the conduct of the independent counsel.

"While Mrs. Clinton was first lady of the United States at the time of the investigation, she was neither part of a government agency nor a government official when the events that were the subject of the independent counsel's investigation occurred, which led to the drafting of the proposed indictments," Walton wrote.

He said that "while the public interest cannot be based purely on gathering information about an individual, there is a cognizable public interest in knowing how a government agency goes about investigating high-ranking officials."

However, Walton added: "The plaintiff, in this case, has not established that the information contained in the drafts of the proposed indictment would yield information about what the government 'is up to.'"

The judge wrote that while in its FOIA complaint, Judicial Watch said it sought information about how the government operates, it seems more interested in Hillary Clinton, who was not a government official in the 1990s.

"More importantly, although the plaintiff seeks to cloak the public interest in this case with the veil of seeking to know 'what the government is up to,' or at least 'was up to' during her tenure in multiple federal offices [and] 'may be up to' should Mrs. Clinton be elected president, the Court finds that the proper characterization of this public interest is an attempt to obtain information that 'bears on Mrs. Clinton's honesty, credibility, and trustworthiness.' Thus, disclosure of the drafts of the proposed indictment would not shed light on any agency's performance of its statutory duties, but potentially shed light solely on the character of Mrs. Clinton, independent to her position as a public official, which is not the objective of the FOIA." (Citations to Judicial Watch filings omitted.)

Walton also found that disclosure of the drafts at issue would reveal the identities of people who testified before the grand jury as potential witnesses, and the "inner workings" of the grand jury process, which are protected from disclosure.

He granted the National Archives and Records Administration motion for summary judgment, and denied Judicial Watch's cross-motion for summary judgment.

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