Benghazi and the Justice Department’s Lawyers

The Obama administration may need to do something about the lawyers working for Eric Holder at the U.S. Justice Department because — if we are to believe White House spokesman Jay Carney about the infamous Benghazi e-mail — they may have made a major error.

In an April 30 White House press briefing, Carney got into an argument with ABC News’s Jonathan Karl, who asked why this e-mail was not turned over to Congress.  Carney told Karl that the “document was not about Benghazi.”  When Karl remonstrated that it was prep for the appearance of Ambassador Susan Rice “for the Sunday shows” where she was talking about what had happened in Benghazi, Carney again asserted the “the document in question here, it is not about Benghazi, it is about the protests around the Muslim world outside of U.S. embassies and what we know about them and what we should say about them based on our policies.”

Yet the same e-mail was turned over to Judicial Watch as the result of a lawsuit filed in 2013 against the U.S. State Department after it had failed to respond to the organization’s Freedom of Information Act request. As outlined in the complaint, the FOIA request asked specifically for copies of any “updates and/or talking points given to Ambassador Rice by the White House or any federal agency concerning, regarding, or related to the September 11, 2012 attack on the U.S. consulate in Benghazi, Libya.” In other words, Judicial Watch wasn’t seeking records “about the protests around the Muslim world outside of U.S. embassies” to quote Jay Carney. Its lawsuit was limited to documents about one very specific incident: the September 11 attack in Benghazi.

The Federal Programs Branch of the Justice Department’s Civil Division represented the State Department in this lawsuit. Branch lawyers are the ones who turned over the “smoking gun” e-mail to Judicial Watch in response to a court order.

Which presents an interesting dilemma. If that e-mail from Benjamin Rhodes was really not about Benghazi, as Carney claims, then the Justice Department lawyers committed a grievous legal error and turned over a document that is not responsive to the Judicial Watch lawsuit. Alternatively, the lawyers involved actually knew what they were doing and turned over a document “concerning, regarding, or related to the September 11, 2012 attack on the U.S. consulate in Benghazi, Libya.” Hopefully the public will get the opportunity to find out who made the mistake, although I have my suspicions.

 - Hans A. von Spakovsky is a senior legal fellow at the Heritage Foundation.

About the Author

Hans A. von Spakovsky Manager, Election Law Reform Initiative and Senior Legal Fellow
Edwin Meese III Center for Legal and Judicial Studies

Originally appeared in National Review Online's "The Corner"