A federal judge issued a rare order Tuesday requiring the Justice Department to secure emails that may be in the personal Gmail account of a top department official who’s about to depart his post with the change in administration.
U.S. District Court Judge Emmet Sullivan instructed Justice to preserve any emails that Assistant Attorney General for Legislative Affairs Peter Kadzik has in private accounts that could be responsive to Freedom of Information Act requests filed by the conservative group Judicial Watch.
“Defendant shall take all necessary and reasonable steps to ensure the preservation of all agency records and potential agency records between the dates of December 1, 2014 and November 7, 2016 in any personal email account of Assistant Attorney General for Legislative Affairs Peter Kadzik. Any question about whether a record is an agency record shall be resolved in favor of it being an agency record,” Sullivan wrote Tuesday afternoon.
The judge, an appointee of President Bill Clinton, also ordered Justice Department lawyers to report back by 9 a.m. Wednesday on the steps taken to preserve the records.
Portions of Judicial Watch’s FOIA requests were broad, seeking all correspondence between Kadzik and representatives of Hillary Clinton’s presidential campaign over a period of nearly two years and all messages Kadzik handled on his Gmail account that involved official business during most of 2016.
However, in a court filing earlier Tuesday, Justice Department lawyers indicated that Kadzik had no such records—or, perhaps, that they didn’t qualify as the kind of government “agency records” subject to FOIA.
“It is the government’s understanding that Mr. Kadzik has located no agency records or potential agency records in his Gmail account and that, therefore, there are no such documents to preserve. Nevertheless, out of an abundance of caution and consistent with the preservation order that Judicial Watch seeks, the government has instructed Mr. Kadzik to preserve any potential agency records in his Gmail account, should any exist, and Mr. Kadzik has agreed to do so,” the Justice Department filing said.
The phrase “agency records” appears to have caught Sullivan’s eye, prompting the stern order Tuesday, which the government opposed.
Justice Department attorneys also said in their filing that Kadzik—a political appointee—plans to leave the agency on Thursday. A Justice spokeswoman declined to comment on Sullivan’s order Tuesday night.
Judicial Watch’s FOIA requests and their lawsuit to enforce them were prompted by disclosures from in hacked emails published by WikiLeaks that Kadzik advised Clinton campaign chairman John Podesta about an upcoming hearing in a Freedom of Information Act case. U.S. intelligence agencies have concluded that the leaks were the product of a Russian government-backed effort to disrupt the U.S. presidential election and tilt the playing field toward Republican presidential nominee Donald Trump. The Russian government has denied any such effort.
Another federal judge in Washington is considering a Judicial Watch request to preserve emails in private accounts belonging to top Department of Homeland Security officials, including Secretary Jeh Johnson.
In December, yet another federal judge issued an order requiring the top White House science official to preserve all his emails in a private account as litigation over the messages continues.