The FBI said on Wednesday that it will consider whether the bureau can release two letters it sent to the State Department about its investigation into Hillary Clinton's email server. Additionally, the bureau said it will turn over several thousand deleted emails it recovered to the State Department, which the FBI wants to make the final decision whether those communications can be publicly released.
In court documents filed in US District Court in Washington, DC late Wednesday [pdf at the end of this story] in response to a Freedom of Information Act (FOIA) lawsuit filed by VICE News earlier this year, government lawyers said the FBI would no longer rely upon an exemption to the FOIA the bureau used to justify the withholding of deleted emails and other records related to its probe into Clinton's email server.
"To date, the FBI has withheld two categories of documents that are responsive to [VICE News'] FOIA request," the court filing said. "The first category consists of materials retrieved from any server equipment and related devices obtained from former Secretary of State Hillary Clinton for the investigation. These materials may include agency records of the State Department. Therefore, in accordance with its policies and procedures, the FBI will be providing the retrieved materials to the State Department for review and determination as to whether they constitute agency records of the State Department under the Federal Records Act, and for subsequent FOIA processing as appropriate."
The government intends to submit a status report to the court on July 22, "setting forth its proposal for further proceedings in this case."
Ryan James, VICE News' attorney in the FOIA case, said he wants the government to better explain whether, by deferring to State, the FBI is attempting to get out of releasing the emails.
"I have also sought information critical to moving this case forward and ensuring the public sees these records before the election, including the volume of retrieved records at issue, the date they will be provided to the State Department, and the format in which they will be provided to State Department, which will, of course, impact how long it will take State to process them under FOIA," James said.
On Wednesday, State Department spokesman Mark Toner said during a press briefing that the deleted Clinton emails the FBI recovered will eventually be released by State.
"Just as we processed the material turned over to the department by former Secretary Clinton, we will appropriately and with due diligence process any additional material that we do receive from the FBI to identify work-related records and make them available to the public, and that's consistent with our legal obligations," Toner said.
The State Department released more than 30,000 of Clinton's emails over the course of 10 months under a court order in response to a separate FOIA lawsuit filed by VICE News in January 2015.The deleted emails the FBI recovered would also be responsive to VICE News' FOIA request.
VICE News filed a FOIA lawsuit against the FBI seeking Clinton's deleted emails and any documents retrieved from her server, thumb drives, and any other electronic equipment that has not been publicly disclosed; any correspondence and other documents between the FBI and Clinton or her representatives; and correspondence between the FBI and the State Department about Clinton's server.
At the time, the FBI said it could not turn over any records it obtained because disclosure would jeopardize the integrity of its investigation into Clinton's exclusive use of a private email server by "prematurely revealing its scope and focus." Over the past six months, the government filed court documents, as well as two secret declarations, explaining to US District Court Judge Randolph Moss, who is presiding over our FOIA case, how the public release of any records could harm the FBI's investigation and why responsive documents need to be withheld. Those secret declarations may also be publicly released, Wednesday's court filing said.
Last month, the FBI's FOIA chief, David Hardy, disclosed in a public declaration filed in federal court in VICE News' FOIA case that the bureau cannot even disclose the "to, from, dates, and their contents [in] two pieces of correspondence from the FBI to the Department of State," nor could the FBI reveal the "total volume of responsive information" about Clinton's server without compromising the FBI's probe.
Hardy said some of the documents at issue concern "server equipment and related devices obtained from former Secretary Clinton." The documents "consist of memoranda from the FBI to the Department of State regarding evidence. The purpose of these communications with the Department of State was to solicit assistance in furtherance of the FBI's investigation."
In Wednesday's court filing, government attorneys now say the FBI is "currently processing" the memoranda FBI sent to State " to determine whether any other exemptions apply to information contained in them" and should be withheld or publicly released.
Last week, in an extraordinary and unprecedented public statement announcing an end to the bureau's yearlong probe of Clinton's use of a private email server to conduct official business while she served as Secretary of State, FBI Director James Comey said several thousand emails were recovered that Clinton did not turn over to the State Department, even though she signed a statement declaring she turned over all of her work-related emails to the State Department.
Clinton's exclusive use of private email to conduct official business was revealed a year ago by the New York Times. Clinton has insisted she never sent or received any emails that contained classified information. Comey, however, said that's not true.
"From the group of 30,000 e-mails returned to the State Department, 110 e-mails in 52 e-mail chains have been determined by the owning agency to contain classified information at the time they were sent or received. Eight of those chains contained information that was Top Secret at the time they were sent; 36 chains contained Secret information at the time; and eight contained Confidential information, which is the lowest level of classification. Separate from those, about 2,000 additional e-mails were 'up-classified' to make them Confidential; the information in those had not been classified at the time the e-mails were sent," Comey said in his remarks, July 6, in announcing that the FBI's probe had ended.
In court documents, government attorneys said the FBI launched the probe into Clinton's email server last year after receiving a "security referral" made for "counterintelligence purposes" from the inspectors general of the Intelligence Community and the Department of State.
Follow Jason Leopold on Twitter: @JasonLeopold