The Volokh Conspiracy
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Today the U.S. Court of Appeals for the D.C. Circuit granted former Secretary of State Hillary Clinton a writ of mandamus to prevent a court-ordered deposition concerning her infamous private email server. Cheryl Mills, her former Chief of Staff at the State Department, was not so lucky.
This decision is the latest development in Judicial Watch's ongoing Freedom of Information Act litigation concerning the Obama Administration's response to the attack on the U.S. consulate in Benghazi, Libya. In March, the district court ordered Secretary Clinton and Ms. Mills to sit for depositions concerning Clinton's reasons for using a private e-mail server, her knowledge of applicable State Department records-management practices, and communications related to the Benghazi attack. This prompted Clinton and Mills to seek a writ of mandamus blocking their depositions.
In an opinion today, the D.C. Circuit granted the writ with respect to Secretary Clinton, but not with regard to Mills. From Judge Wilkins' opinion for the court:
The common-law writ of mandamus, codified at 28 U.S.C. § 1651(a), is one of "the most potent weapons in the judicial arsenal," see Will v. United States, 389 U.S. 90, 107 (1967), and mandamus against a lower court is a "drastic" remedy reserved for "extraordinary causes," Ex parte Fahey, 332 U.S. 258, 259-60 (1947). Mandamus lies only where the familiar tripartite standard is met: (1) the petitioner has "no other adequate means to attain the relief"; (2) the petitioner has demonstrated a "clear and indisputable" right to issuance of the writ; and (3) the Court finds, "in the exercise of its discretion," that issuance of the writ is "appropriate under the circumstances." Cheney, 542 U.S. at 380-81. Although these hurdles are demanding, they are "not insuperable," id. at 381, and a "clear abuse of discretion" by a lower court can certainly justify mandamus, Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 383 (1953).
Applying this standard, we find the petition as to Secretary Clinton satisfies all three prongs, while the petition as to Ms. Mills fails to satisfy the first. Since the "three threshold requirements are jurisdictional," regardless of Ms. Mills' petition's merit on the other two inquiries, we are bound to deny the writ and dismiss her petition for lack of jurisdiction. Am. Hosp. Ass'n v. Burwell, 812 F.3d 183, 189 (D.C. Cir. 2016).
One alternative means to obtain relief in cases likes this is to refuse to comply with the court-ordered deposition, and then challenge any resulting finding of contempt. As Judge Wilkins notes, this is understood as an adequate alternative means to obtain a remedy for a nonparty respondent, such as Ms. Mills, but not for a party-litigant, such as Secretary Clinton.
As for the other prongs, the court was none too impressed with Judicial Watch's need to depose Secretary Clinton.
The circumstances under which this particular discovery order arises only buttress our finding of the appropriateness of mandamus. Judicial Watch does not in fact want for the information it purports to seek and has already been afforded extensive discovery related to the proposed deposition topics. In this FOIA case alone, it has taken eighteen depositions and propounded more than four times the presumptive maximum number of interrogatories. . . . In its parallel FOIA case before Judge Sullivan, Judicial Watch received sworn interrogatories from Secretary Clinton herself as well as a lengthy deposition of Ms. Mills and seven other witnesses, traversing the proposed deposition topics and resulting in the identification of no additional records responsive to the instant FOIA request. . . . As discovery progressed, Judge Sullivan invited Judicial Watch to seek leave to serve even more interrogatories if there were "follow up questions" it had been "unable to anticipate," . . . an avenue Judicial Watch did not pursue.