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When the entire inevitable first female president train flew off the tracks in spectacular fashion last November there seemed to be a sense that the related stories of potential criminal investigations into Hillary Clintons handling of classified documents was going away as well. After all, hadnt the FBI concluded that it was pretty much a done deal? (At least a couple of times as I recall.) It had become more of a campaign talking point than anything else, and with defeat having been snatched from the jaws of victory, couldnt you all just let the poor woman be?

In the months since then it feels as if nobody has even been talking about it, with the exception of the occasional Tweet from the President when he wanted to criticize Jeff Sessions. But under the covers there was still a slow, grinding investigation taking place. Tens of thousands of documents had been turned over by the State Department and more of them kept popping up in unexpected places. As the Washington Times reported this weekend, the final chapter has yet to be written in this saga and additional classified material may still be coming to light.

The Hillary Clinton email fiasco isnt ending anytime soon, with State Department officials saying they have no idea when they will finish sorting though and releasing the previously hidden messages.

More classified documents that the former secretary of state improperly handled keep coming to light.

The Trump administration doesnt even know if it has hunted down every trace of the emails that Mrs. Clinton a former first lady, U.S. senator, top diplomat and Democratic presidential nominee sent from a secret email server stashed in her home

This June, the FBI provided approximately 7,000 additional documents recovered from the laptop computer shared by top Clinton aide Huma Abedin and her husband, Anthony Weiner, whose habitual sexting cost him a seat in Congress, the mayoral election in New York and ultimately his marriage to Ms. Abedin.

We have not yet determined how many of these documents are State Department records as opposed to personal emails, nor have we determined how many documents are duplicative of material already in our possession, said the official.

So its been almost two months since all of the Carlos Danger material was turned over. A fair question is being raised here as to why its taking so long to go through everything. While the campaign was still going on there was a much greater sense of urgency (or so it seemed) and they processed considerably larger volumes last summer in a shorter period of time. Did they simply assign fewer people and resources to it once the election was over and the spotlight had moved elsewhere?

I suppose thats one possibility. But heres another thought to ponder. That entire Loretta Lynch story has been blowing up all over again this summer and its raised additional questions about how James Comey was handling the email investigation from the beginning. Now there are fresh sets of eyes at State, the DoJ and the FBI. Is it conceivable that they arent in quite as much of a hurry to put the entire story to rest as the Obama administration was?

That remains unknown for the time being. One thing we can count on, though, is that defenders of Clinton will label this an unnecessary distraction, a vindictive political witch hunt and everything else you would expect. But is it? If the questions about the former First Ladys handling of classified material were valid in terms of criminal culpability last summer, are they any less so now that shes exited the public stage? (For the most part, anyway.) The only thing we can probably count on for sure is that Clinton will be unlikely to get a presidential pardon any time soon if charges are still possible.

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I bet you thought the Hillary Clinton email scandal was over - Hot Air

Dear John: You recently criticized the FBI for its investigation of Hillary Clintons e-mails.

I am a retired FBI agent and extremely proud of my career and service. I feel compelled to write. Former FBI Director James Comeys statements, testimony and behavior are truly abhorrent.

Comey admitted under oath before Congress that the bureau did not utilize a federal grand jury in the Hillary e-mail investigation.

Furthermore, he testified that in his experience, when dealing with attorneys, you can obtain information easier and faster than via a federal grand jury.

Never, I repeat never, in my 25-year career have I or any FBI agent known to me investigated a criminal case without the use of a federal grand jury, federal grand jury subpoenas, search warrants, etc.

Search warrants and/or subpoenas should have been executed at Clintons residences in Chappaqua and Washington and at Platte River Networks.

In fact, Comey frequently cites his vast experience. Well, I am certain that in every case with which he was involved (except this one, conveniently) he employed the use of a federal grand jury and all of the authority that encompasses.

Comeys parsing of words to justify his cowardly decision was awkward and juvenile. These circumstances are indicia of Hillarys intent (which, as we both are aware, is not a necessary element to satisfy the federal espionage statute) on which Comey placed so much emphasis.

Comeys cowardice and lack of integrity is further exemplified in his surreptitious disclosure of confidential information through an intermediary to the New York Times.

Comey has created a disgraceful legacy. P.B.

Dear P.B.: I changed your initials and some other details because Id like to speak with you and dont want anyone to guess your identity.

My sources say Comey and three others made the decision on Hillary. The rest of the investigating agents werent consulted, and many were shocked by the decision not to pursue charges.

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Comey botched the Hillary Clinton email investigation - New York Post

Former Attorney General Loretta Lynch set aside ethical norms and good judgment to take her secret, election-year meeting with former Present Bill Clinton at an Arizona airport. Her agency was investigating Clinton's wife, Hillary, and pondering the permutations of prosecuting her as she ran for president.

In doing so, she paved the way for then-FBI Director James Comey to take unprecedented decision-making power in the investigation of Hillary Clinton's emails.

She also plunged her department and the White House into a panic when a local reporter got wind of the meeting. We finally know a bit more about it, thanks to a Freedom of Information Act lawsuit pursued by the American Center for Law and Justice.

After an unjustifiable 12 months of resisting compliance with the Freedom of Information Act, the Justice Department has finally handed over correspondence between the FBI, the Justice Department, and White House officials about how they should handle the fallout from Lynch's meeting. Among the findings was the fact that Lynch used a pseudonymous email address.

This is not the first recent case of federal officials doing so, nor of FOIA requests being unnecessarily delayed and litigated to cover up political wrongdoing, nor, most importantly, of documents being redacted for no reason other than to avoid embarrassment.

The bottom line is that government transparency is becoming a joke, and the joke is on all of us.

Recall that Hillary Clinton used a private email account and failed contemporaneously to hand over government records she thus created. This allowed her to thwart valid FOIA requests for years, and to stonewall a congressional inquiry. In a case similar to Lynch's, former EPA Administrator Lisa Jackson went by the alias "Richard Windsor." Although both Jackson and Lynch claim that FOIA compliance officers in their agencies were aware of their aliases, was every one of them really aware of it? There is room for doubt. Was there any way to guarantee that future FOIA officers would have this information so they could respond within the law when their records were searched in the future?

Problems with FOIA go beyond efforts by senior officials to hide their identity or their correspondence from public scrutiny. It is equally if not more concerning that the Justice Department, as often occurs with politically sensitive FOIA requests, improperly dragged its feet to thwart the ACLJ's valid request for the emails about Lynch's meeting with Clinton.

Not only did the department force the matter into unnecessary litigation that has lasted nearly a year but also imposed ridiculous and unjustified redactions that exceed permitted exemptions to the Freedom of Information Act.

Talking points that DOJ wrote and sent to the White House Office of Political Affairs were completely blacked out on the basis of a b(5) exemption, which is designed to protect "inter-agency or intraagency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency."

According to DOJ's guidance on FOIA's b(5) exemption, courts have interpreted this to "exempt those documents, and only those documents that are normally privileged in the civil discovery context." It is absurd to suggest that draft media talking points, written in a panic and sent to the White House to facilitate political damage control, would qualify as exempt from discovery in a civil court case. But the b(5) exemption has been so badly abused in other contexts that it is casually referred to as "the withhold-it-because-you-want-to exemption." This indicates a much bigger problem.

President Obama famously failed to keep his promise that his administration would presume in favor of disclosure wherever there was doubt. Instead he ran an administration that set new records for non-compliance with FOIA. As a result, Congress stepped in last year with a reform bill, which Obama did at least sign, to create a statutory presumption of disclosure. But even this has failed to change officials' habits, which always seek to conceal embarrassing details as long as possible.

Congress needs to fix FOIA, because it has become a sick and ironic joke. If bureaucrats refuse to preserve and deliver requested documents in a timely fashion as the law requires, perhaps all of their communications should by default be made available online after 30 days, with exemptions applied for on a case-by-case basis and subject to court challenge. The federal bureaucracy's obstinate non-compliance with valid requests justifies extreme measures. This is the entrenched civil service acting against the public interest and the law to shield itself and its political masters from detection in wrongdoing.

We hope that Lynch's case, with all the others over the years, helps convince Congress to go back to the drawing board on FOIA. Add tougher penalties, place stricter limits on exemptions, tighten regulations for government use of email. Do whatever is necessary. But make clear that no one is above the law, and make the federal government truly transparent to the public it exists to serve.

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Bureaucrats can't run but they can hide, and it's time to stop them - Washington Examiner

Macomb County's clerk/register of deeds Karen Spranger has had a controversial start. Tanya Wildt/Detroit Free Press

Macomb County Clerk/Register of Deeds Karen Spranger in Macomb County Circuit Court on a motion in a lawsuit she filed against the county on Aug. 14, 2017.(Photo: Christina Hall, Detroit Free Press)Buy Photo

A Macomb County Circuit Court judge today recused herself from a civil lawsuit that the county clerk/register of deeds has filed against the county and its officials.

Judge Kathryn Viviano cited numerous reasons to recuse herself from Clerk/Register of Deeds Karen Spranger's lawsuit against the county, including avoiding any appearance of impropriety and that she personally has been involved in the court's e-filing project.

"In this county, there is a high level, which everyone knows,of dispute between the clerk and the county offices, including the court. There are substantial arguments and disputes going on and they have been escalating," Viviano said.

Related:

Karen Spranger: Agent of change or simply unqualified to hold Macomb clerk's job?

Macomb Co. clerk Karen Spranger invokes 5th Amendment in perjury complaint

Viviano said she can be fair and that she struggled with the decision, adding "this is a close call."

The county has filed a motion to file a counter-complaint in Spranger's lawsuit, seeking to disqualify her from office over her not living at a house in Warren that she said was her residence on an affidavit to run for office. That motion was not heard today because Viviano recused herself.

Viviano said this is"significant leave that is being requested" of the court. She said thedecision to remove someone from office is important not only for the litigants, but also for public and she said the appearance of impropriety needs to be avoided in all cases.

"I believe the judge made a very good decision," Spranger said after the hearing.

County Corporation Counsel said the case now will go to the chief judge who has denied several of Spranger's recommended appointees to the vacant deputy clerk position for reassignment. He said that could take a few days or maybe a week to reassign.

"I think it was very cautious," Schapka said of Viviano's ruling, but added that "it's a Macomb County case. This is the proper venue for the case."

Spranger has been controversial since she came into office in January, including a backlog in e-filing and a rise inemployee grievances about a hostile work environment.Spranger was fined for a county ethics violation, firedtwo deputies who are now suing her in federal court and is under investigation for lying about her residency in Warren on her affidavit of identify to run for office last year.

She invoked the Fifth Amendment and is not interviewing with sheriff's authorities investigating perjury in the residency question.

Spranger's attorney, Frank Cusumano, who on Friday asked for a change of venue in Spranger's lawsuitand the disqualification of all of the Macomb circuit judges, also believes Viviano made the correct decision to recuse herself.

Macomb County Circuit Court Judge Kathryn Viviano talks with lawyers regarding the lawsuit that county Clerk/Register of Deeds Karen Spranger filed against the county during a hearing Aug. 14, 2017.(Photo: Christina Hall, Detroit Free Press)

Viviano said that she didn't see that she had any authority to recuse the entire bench of judges, adding "I have to deny that straight up."

When asked if Spranger was qualified for the job, Cusumano said: "The voters have decided she's qualified." Spranger declined comment when she was asked the same question.

Among his arguments, Cusumano said the court is seeking to take over several efiling positions of the clerk and has petitioned to county commissioners for a change in the budget.

County commissioners soon will receive the county's proposed 2018 budget. As of last week, Spranger had not submitted proposed budgets for her offices. She is to appear before commissioners to discuss her budget Aug. 28.

Contact Christina Hall: chall@freepress.com. Follow her on Twitter: @challreporter.

Macomb County Clerk/Register of Deeds Karen Spranger and her attorney, Frank Cusumano, address the media after a hearing Aug. 14, 2017 on a lawsuit she has filed against the county.(Photo: Christina Hall, Detroit Free Press)

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Judge recuses herself from Karen Spranger's lawsuit against Macomb County - Detroit Free Press

Challenging the Transgender Ban

The Trump administration's recent rollback of Obama-era sexual orientation and transgender policies has led to litigation claiming violations of due process and equal protection rights.

By Anjali Patel

Monday, August 14, 2017

Five transgender servicemembers recently filed suit following President Trump's July 26 tweets announcing that transgender individuals will not be allowed to openly serve in the Armed Forces. Jane Doe 1, et al, v. Trump, No. 1:17-cv-01597, complaint filed for declaratory and injunctive relief (D.D.C. 08/09/17).

This policy shift reverses existing guidelines that began allowing transgender individuals to serve openly in the military on June 30, 2016. The ban will impact at least three Department of Defense policy documents, along with any division-specific policies. DOD, Military Service of Transgender Service Members (June 2016); DOD, Transgender Service in the U.S. Military: An Implementation Handbook (September 2016); DOD, Transgender and Gender Transition Commanding Officer's Toolkit (November 2016).

The complaint alleges Trump failed to consult with the Joint Chiefs of Staff and the Department of Defense before "the White House [allowed] a plan to end the active service of transgender servicemembers to be transmitted to the Department of Defense for implementation."

The complaint argues that the ban on transgender servicemembers:

Violates the equal protection component of the Fifth Amendment's due process clause, "lacks a rational basis, is arbitrary, and cannot be justified by sufficient federal interests." Violates the Fifth Amendment's due process clause by taking "arbitrary and capricious" action to reverse the 2016 policy allowing transgender people to openly serve. The 2016 policy created a protected interest in being able to openly serve as transgender servicemembers, and the reversal of that policy deprived the plaintiffs of those interests without due process of law, and impermissibly burdened their fundamental rights to autonomy and privacy, the complaint said.

Rescinds the rights, benefits, and privileges promised to the plaintiffs who relied on the 2016 policy, notified their commanding officers that they were transgender, and received ongoing support for their continued service as openly transgender. However, now that they have already identified themselves as transgender, they no longer have "the stability and certainty they had in their careers and benefits, including post-military and retirement benefits that depend on the length of their service." Since coming out, the plaintiffs have served "honorably and successfully" and their transgender status "has not had any detrimental effect on their ability to serve or fulfill their duties," the complaint states. Consequently, the U.S. government should be prevented from "rescinding the rights, benefits, and protections promised to Plaintiffs."

As relief for the ban, the plaintiffs said the court should find the president's directive unconstitutional and issue a preliminary injunction, along with a permanent injunction, prohibiting the categorical exclusion of transgender people from military service.

Sexual orientation

On the same day as the president's tweets -- July 26 -- the Department of Justice argued that Title VII does not cover sexual orientation discrimination, taking the opposite position of the Equal Employment Opportunity Commission in an amicus brief submitted to the 2d U.S. Circuit Court of Appeals. Zarda v. Altitude Express, Inc., 117 LRP 30114 , No. 15-3775 (2d Cir. 04/18/17); EEOC amicus curiae brief filed (2d Cir. 06/23/17); DOJ amicus curiae brief filed (2d Cir. 07/26/17).

Shannon Farmer, a partner at Ballard Spahr, told cyberFEDS that Zarda will have limited impact for federal employees, who can choose to pursue a sexual orientation claim through the administrative process, which follows the EEOC's holding that Title VII does encompass sexual orientation claims. Baldwin v. Department of Transportation, 115 LRP 31813 (EEOC OFO 2015).

Nonetheless, "it will be interesting to see what if anything the court will do with the DOJ and EEOC having split views because they don't have to address it all and could just leave that issue on the side."

Regardless of the 2d Circuit's ruling, ultimately this will be addressed either through legislation or the Supreme Court, she added.

Right now, the EEOC is aligned with the 7th Circuit, while the DOJ is aligned with the 11th Circuit.

"The EEOC is also going to trial as a plaintiff in a 3d Circuit sexual orientation case, which will bring another court into the issue," Farmer said.

During a Town Hall conversation at the 32nd Annual FDR Training, the EEOC's Robbie Dix, associate director of the Appellate Review Program, said the EEOC has been clear that Title VII prohibits agencies from discriminating against or harassing employees based on their sexual orientation and gender identity.

"Agencies should process these cases using 1614 procedures," Dix said. "If they decide to reject these cases relying on the DOJ stance, we will send them back to be processed in a New York second."

Farmer warned, however, that once Trump's nominees for the EEOC are confirmed, new leadership could take a different position than the current EEOC.

If the EEOC's position remains the same, the Supreme Court could be in the "rare -- although not unheard of -- position" of hearing agencies in the same administration arguing as amici for opposing parties, she noted.

However, "it's hard to imagine that the administration would not try to get the EEOC and DOJ aligned on this issue -- which involves the interpretation of a key federal statute -- before going to the Supreme Court," Farmer said.

Sex stereotyping

Agencies also should "keep in mind that there has been a line of cases, for both federal and nonfederal employees, finding that sex stereotyping is sex discrimination protected by Title VII" under the Supreme Court's decision in Price Waterhouse v. Hopkins, 89 FEOR 9001 (U.S. 1989), Farmer said.

If the facts allow, usually complainants allege sex stereotyping instead of sexual orientation discrimination, such as "because I am gay, I don't fit the masculine stereotypes, and therefore I was discriminated against under Title VII," she said.

However, these cases can get somewhat "messy" because courts must make highly subjective calls on whether the person was perceived as "effeminate enough or butch enough" to fall within sex stereotyping, she added.

Additionally, not every case will have facts fitting a sex stereotyping claim. And "from a judicial perspective, it's far cleaner to have a firm line than a rule that asks how much sex stereotyping do you need to have," Farmer explained.

That said, if the Supreme Court ultimately includes sexual orientation under Title VII, plaintiffs would not have to try fitting the facts into a sex stereotyping framework, she added.

Although many believe including sexual orientation under Title VII expands the statute, "as a practical matter, it is not that much of an expansion because litigants can plead enough facts to be recognized as a sex stereotyping case," she said. However, the standard of proof would change and require showing sexual orientation, rather than sex stereotyping, she added.

Anjali Patel is cyberFEDS Legal Editor Washington Bureau. Send questions or comments about this story to hreletters@lrp.com.

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Challenging the Transgender Ban - Human Resource Executive Online