On the same day Hillary Clinton swore to a judge that she believed all of her State Department emails had been turned over in a federal lawsuit, her private attorney wrote to the presidential candidate’s inner circle acknowledging the possible existence of additional messages that had not yet been produced, according to a leaked email.
The Aug. 8, 2015 late-night email from attorney David Kendall could have implications in a federal open records lawsuit that is still pending.
Link to WikiLeaks, Huma Abedin
It could also impact the campaign, where Clinton’s credibility has suffered in recent days after revelations the FBI revived a criminal case involving her email account.
The Kendall email in question was found in one of same email accounts discovered this month by the FBI on top Clinton aide Huma Abedin’s personal computer, as well as among thousands of campaign emails leaked on the government transparency group WikiLeak’s web site.
The timing of the Kendall email
The Kendall email was written just hours after Clinton signed a carefully worded sworn declaration that the thousands of State Department-related emails she turned over in late 2014 from her personal email account.
Those emails covering the period March 18, 2009 through Feb. 1, 2013 were produced to the court overseeing a FOIA case brought by the conservative group Judicial Watch.
Clinton declaration signed Aug. 8, 2015 and submitted two days later in U.S. District Court in Washington, D.C.:
“While I do not know what information may be responsive for purposes of this lawsuit, I have directed that all my emails on clintonemail.com in my custody that were, or potentially were, federal records be provided to the Department of State, and on information and belief, this has been done.”
See Clinton’s declaration above, or you can read the full declaration here.
Acknowledging earlier emails
It wasn’t until 2016 when a State Department inspector general report and an FBI investigative report were released that the public formally learned there were relevant work emails on her private account prior to March 18, 2009 that had been recovered.
But at 10:24 p.m. on Aug. 8, 2015, Kendall sent an email to her campaign chairman John Podesta, as well as close aides Abedin, Cheryl Mills, Heather Samuelson, Jen Palmieri and Brian Fallon.
Read the full David Kendall email, as released by WikiLeaks, here.
Kendall warned the campaign leadership that using the March 18, 2009 date in a public statement about Clinton’s compliance with the lawsuit was a potential “gotcha” because they were aware of emails that existed prior to the date on her private email server accounts.
“I would prefer not to use the ‘March 18, 2009’ date, because we know there were other emails… prior to that date.”
— David Kendall
‘Make it more vague’
“Could we make this more vague, like ‘early in her term as SOS’? Or would this change provide a ‘gotcha’ target–if so, not worth it, since this is the date of the earliest email in the PST of her emails, as I understand it,” he added.
Neither Kendall nor any representatives of the Clinton campaign returned phone calls or emails Wednesday seeking comment.
New ammo for critics
With just days to go before Tuesday’s election, Kendall’s email will likely hand Clinton critics new ammunition to make the political argument that she and her team “slow walk” the truth during scandals from Beghazi to emails rather than come clean to the public about all they know.
But the documents could also cause repercussions in the federal case, congressional investigations and the FBI probe focused on Clinton’s handling of emails.
Potential legal ramifications
For instance, the FBI reported in June that Clinton and her legal team never turned over emails prior to March 18, 2009. But agents used forensic techniques to recover many emails from tha t period.
While Clinton’s sworn statement to the court was narrowly worded to declare she turned over emails in her possession — meaning those found in her inbox — the judge could raise concerns that Clinton’s team had an obligation to disclose the existence of other emails, Judicial Watch told Circa.
“I’ll tell you Congress was told something even broader where Mrs. Clinton said almost without a doubt that all emails were turned over, there were no caveats where she said as far as I knew,” Tom Fitton the head of Judicial Watch said in an interview.
“He (Kendall) may have had an obligation, certainly Clinton had an obligation if she knew all government emails weren’t turned over.”
— Tom Fitton
Questioning Clinton’s testimony
“So this email raises questions about Clinton’s testimony to the courts and to Congress, both of which were under penalty of perjury under oath, and then whether or not her lawyer was aware that there were missing government emails or emails that hadn’t been turned over to the government. And whether he told the court and other investigative authorities the truth about that,” Fitton said.
The Kendall email could also prove tricky for him. Some of the emails recovered prior to March 18, 2009 from Clinton’s account involved emails with former CIA Director David Petraeus, who resigned because he leaked government secrets.
Potentially tricky situation for Kendall
Kendall represented both Clinton in the email case and Petraeus in the classified leaks case, opening the door to questions about whether his knowledge of the earlier 2009 emails came from his representation of Petraeus or from some other unrelated source.
Whatever the case, the State Department continued to say months after Kendall’s note that emails might not be recoverable from Clinton’s tenure before March 18, 2009.
Patrick Kennedy letter
For instance, top State Department official Patrick Kennedy wrote a letter Nov. 6, 2015 to the National Archives and Records Administration, the government’s official custodian of records, that Clinton “does not have custody of emails sent or received during the first few weeks of her tenure.”
The question for the FBI, the courts and the public will likely become: What did her team know about the other emails and how did they handle the situation both in public and private.