Clinton emails from Weiner probe are fair game for possible disclosure, judge says

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A federal judge said Monday that emails relating to Hillary Clinton's time as secretary of state that were found during an FBI investigation of former Rep. Anthony Weiner could be subject to public disclosure as part of a pending lawsuit.

U.S. District Judge James Boasberg, presiding over a hearing one day before the presidential election between Clinton and Republican Donald Trump, scheduled a Nov. 29 hearing to discuss whether the FBI had provided the records to the State Department.

FBI Director James Comey shook the presidential race on Oct. 28 when he informed Congress that agents had recovered the emails, found on a device used by Weiner, the disgraced New York Democrat married to top Clinton aide Huma Abedin and under investigation for an online relationship with a minor.

Photos from the scandal:

18 PHOTOS
Hillary Clinton, Huma Abedin and Anthony Weiner sexting scandal
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Hillary Clinton, Huma Abedin and Anthony Weiner sexting scandal
Democratic presidential candidate Hillary Clinton looks on as she was looking at a smartphone when she leaves a fundraiser at a private home in Southampton, N.Y., Sunday, Aug. 28, 2016. (AP Photo/Andrew Harnik)
Democratic presidential candidate Hillary Clinton, center, leaves a fundraiser at a private home in Southampton, N.Y., Sunday, Aug. 28, 2016. (AP Photo/Andrew Harnik)
Democratic presidential candidate Hillary Clinton looks at a smartphone as she leaves a fundraiser at a private home in Southampton, N.Y., Sunday, Aug. 28, 2016. (AP Photo/Andrew Harnik)
Huma Abedin, center, an aide to Democratic presidential candidate Hillary Clinton, poses for a photograph with members of the audience after Democratic presidential candidate Hillary Clinton accompanied by Sen. Tim Kaine, D-Va., speaks at a rally at Florida International University Panther Arena in Miami, Saturday, July 23, 2016. Clinton has chosen Kaine to be her running mate. (AP Photo/Andrew Harnik)
In this photo taken Aug. 28, 2016, Democratic presidential candidate Hillary Clinton's senior aid Huma Abedin, center, departs a fundraiser at a private home in Southampton, N.Y. Abedin says she is separating from husband Anthony Weiner after another sexting revelation involving the former congressman from New York. (AP Photo/Andrew Harnik)
Democratic presidential candidate Hillary Clinton, followed by aide Huma Abedin, right, walks on the tarmac as she arrives to board Air Force One at Andrews Air Force Base, Md., Tuesday, July 5, 2016. President Barack Obama and Clinton are traveling to Charlotte, N.C. to campaign together. ( AP Photo/Jose Luis Magana)
New York mayoral candidate Anthony Weiner, left, listens as his wife, Huma Abedin, speaks during a news conference at the Gay Men's Health Crisis headquarters, Tuesday, July 23, 2013, in New York. The former congressman says he's not dropping out of the New York City mayoral race in light of newly revealed explicit online correspondence with a young woman. (AP Photo/Kathy Willens)
Huma Abedin, aide to Democratic U.S. presidential candidate and former Secretary of State Hillary Clinton, points as Mrs. Clinton waves to attendees at the conclusion of the second official 2016 U.S. Democratic presidential candidates debate in Des Moines, Iowa, November 14, 2015. REUTERS/Jim Young
Democratic presidential candidate Hillary Clinton, center, accompanied by Mike Vlacich, New Hampshire state director, Hillary for America, and her aide Huma Abedin look to place their order Sunday, Feb. 7, 2016, at a Dunkin' Donuts in Manchester, N.H. (AP Photo/Matt Rourke)
Anthony Weiner, left, and Huma Abedin arrive at The Metropolitan Museum of Art Costume Institute Benefit Gala, celebrating the opening of "Manus x Machina: Fashion in an Age of Technology" on Monday, May 2, 2016, in New York. (Photo by Evan Agostini/Invision/AP)
Democratic presidential candidate Hillary Clinton, makes a selfie with customers as her aide Huma Abedin, right, speaks with a cashier Sunday, Feb. 7, 2016, at a Dunkin' Donuts in Manchester, N.H. (AP Photo/Matt Rourke)
Democratic presidential candidate Hillary Rodham Clinton, right, and her personal aide Huma Abedin offer to buy ice cream for reporters from Allison Porreca at Dairy Twirl, Friday, July 3, 2015, in Lebanon, N.H. (AP Photo/Elise Amendola)
Huma Abedin, left, an aide to Hillary Rodham Clinton, watches the Democratic presidential contender greet members of the audience following a speech at the David N. Dinkins Leadership and Public Policy Forum, Wednesday, April 29, 2015. in New York. David Dinkins is at center. (AP Photo/Mark Lennihan)
Huma Abedin, longtime aide to Democratic U.S. presidential candidate Hillary Clinton, attends a Clinton campaign rally in Charlotte, North Carolina, U.S., July 5, 2016. REUTERS/Brian Snyder/File Photo
In this photo taken Jan. 5, 2011, then-New York Rep. Anthony Weiner and his wife, Huma Abedin, an aide to then-Secretary of State Hillary Clinton, are pictured after a ceremonial swearing in of the 112th Congress on Capitol Hill in Washington. Democratic presidential candidate Hillary Clinton aide Huma Abedin says she is separating from husband Anthony Weiner after another sexting revelation involving the former congressman from New York. (AP Photo/Charles Dharapak)
Anthony Weiner and wife Huma Abedin attend the 12th Annual CFDA/Vogue Fashion Fund Awards at Spring Studios on Monday, Nov. 2, 2015, in New York. (Photo by Evan Agostini/Invision/AP)
Rep. Anthony Weiner, D-N.Y., and his wife, Huma Abedin, aide to Secretary of State Hillary Rodham Clinton, are pictured after a ceremonial swearing in of the 112th Congress on Capitol Hill in Washington, Wednesday, Jan. 5, 2011. (AP Photo/Charles Dharapak)
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Comey said Sunday that the FBI had reviewed the new content and that he would not change his controversial July recommendation against criminally charging Clinton with mishandling classified information while using a private and insecure private email server.

At the Monday hearing, Justice Department attorney Lisa Olson said she had no personal knowledge of the contents of the emails, but she assumed they would have to be reviewed for possible disclosure if the FBI delivers them to the State Department.

Olson said the State Department believes it has a standing request to the FBI that it turn over additional Clinton-related documents that it has discovered but said that the Weiner device emails have not yet been supplied.

The judge said he could not force the FBI to give the emails to the State Department, which is the target of Freedom of Information Act lawsuits from conservative transparency group Judicial Watch, but scheduled the hearing to assess progress anyhow.

Before the development involving Weiner, the Judicial Watch case was focused on disclosure of work-related Clinton emails and documents that she did not provide for archiving but that were found by the FBI during its investigation of Clinton's email use.

Chris Fedeli, an attorney for the group, told U.S. News after the hearing it's possible Judicial Watch would pursue FOIA litigation targeting the FBI if the bureau does not give the records to the State Department. But he says he expects the FBI will provide them and expressed satisfaction with Boasberg's apparent eagerness to move the case along.

Boasberg, discussing the existing set of documents subject to the lawsuit, calculated that it may take five years for the State Department to process all documents for public disclosure if the work is performed at the currently ordered rate.

"I'm not satisfied saying, 'Fine, go ahead and take five years,'" he told Olson, scheduling a status hearing in March to revisit the pace, pegging that hearing to occur after a hearing on a FOIA lawsuit from Vice journalist Jason Leopold.

There are several unknowns in the current case. It's unclear, for example, exactly how many of the recently discovered emails are duplicates or essentially duplicates, or how many pages actually are included in the files, which could affect the speed of processing.

Olson convinced the judge to bump the follow-up hearing on the Abedin-Weiner device one day to allow for additional preparation following the Thanksgiving holiday.

Boasberg resisted initially, asking if he was overestimating the complexity of saying whether or not the records had been procured.

"One never knows," Olson said.

"That's a fair statement in this case," the judge said, consenting to an extra day.

RELATED: Clinton addresses the FBI over her emails:

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Hillary Clinton addresses FBI email probe
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Hillary Clinton addresses FBI email probe

Democratic presidential candidate Hillary Clinton speaks at a news conference at Theodore Roosevelt High School in Des Moines, Iowa, Friday, Oct. 28, 2016. The FBI dropped what amounts to a political bomb on the Clinton campaign on Friday when it announced it was investigating whether new emails involving the Democratic presidential nominee contain classified information.

(AP Photo/Andrew Harnik)

Democratic presidential candidate Hillary Clinton, right, accompanied by campaign manager Robby Mook, second from right, and traveling press secretary Nick Merrill, second from left, departs after speaking at a news conference at Theodore Roosevelt High School in Des Moines, Iowa, Friday, Oct. 28, 2016. Clinton is calling on the FBI to release more information about its review of emails that may be related to its investigation into her private server.

(AP Photo/Andrew Harnik)

DES MOINES, IA - OCTOBER 28: Democratic presidential nominee former Secretary of State Hillary Clinton speaks to reporters following a campaign rally at Roosevelt High School on October 28, 2016 in Des Moines, Iowa. With less than two weeks to go until election day, Hillary Clinton is campaigning in Iowa.

(Photo by Justin Sullivan/Getty Images)

Democratic presidential candidate Hillary Clinton, center, accompanied by traveling press secretary Nick Merrill, left, arrives to speak at a news conference at Theodore Roosevelt High School in Des Moines, Iowa, Friday, Oct. 28, 2016. The FBI dropped what amounts to a political bomb on the Clinton campaign on Friday when it announced it was investigating whether new emails involving the Democratic presidential nominee contain classified information.

(AP Photo/Andrew Harnik)

U.S. Democratic presidential nominee Hillary Clinton holds an unscheduled news conference to talk about FBI inquiries into her emails after a campaign rally in Des Moines, Iowa, U.S. October 28, 2016.

(REUTERS/Brian Snyder)

U.S. Democratic presidential nominee Hillary Clinton leaves after an unscheduled news conference on FBI inquiries about her emails after a campaign rally in Des Moines, Iowa, U.S. October 28, 2016.

(REUTERS/Brian Snyder)

US Democratic presidential nominee Hillary Clinton answers a question during a press conference about the FBI's reopening of a probe into her use of a private email server while secretary of State, in Des Moines, Iowa, on October 28, 2016. The FBI dealt Hillary Clinton's seemingly unstoppable White House campaign a stunning blow Friday by reopening a probe into her use of a private email server while secretary of state. / AFP / JEWEL SAMAD

(JEWEL SAMAD/AFP/Getty Images)

Democratic presidential candidate Hillary Clinton, left, accompanied by traveling press secretary Nick Merrill, center, departs after speaking at a news conference at Theodore Roosevelt High School in Des Moines, Iowa, Friday, Oct. 28, 2016. Clinton is calling on the FBI to release more information about its review of emails that may be related to its investigation into her private server.

(AP Photo/Andrew Harnik)

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