The three-judge panel of the District of Columbia Circuit Court of Appeals ruled unanimously today that an Obama appointee to a lower court had erred when he threw out a pair of lawsuits that had sought to force the State Department and the National Archives to refer thousands of Hillary Clinton’s hidden emails to the Department of Justice. Judicial Watch and Cause of Action both filed separate lawsuits in 2015 that called on Secretary of State John Kerry and National Archivist David Ferriero to require that they refer Clinton’s emails for a possible civil suit.
The issue of Clinton’s private email server and the thousands of emails she has yet to submit for scrutiny dogged her throughout her unsuccessful presidential campaign. Donald Trump said during one of their several debates that he would demand a criminal investigation of her tenure at the State Department.
Writing for the federal appeals court, D.C. Circuit Judge Stephen Williams stated that the State Department’s multiple requests to Clinton and the Federal Bureau of Investigation for copies of Clinton's emails were not necessarily enough to fulfill the department's obligation to seek missing messages. "Even though those efforts bore some fruit, the Department has not explained why shaking the tree harder — e.g., by following the statutory mandate to seek action by the Attorney General — might not bear more still. It is therefore abundantly clear that, in terms of assuring government recovery of emails, appellants have not 'been given everything [they] asked for,'" Williams wrote. He was joined by Judges Brett Kavanaugh and Robert Wilkins. "Absent a showing that the requested enforcement action could not shake loose a few more emails, the case is not moot." Williams was appointed by Ronald Reagan, while Kavanaugh and Wilkins were appointed by George W. Bush and President Barack Obama, respectively.
While Clinton surrendered more than 54,000 pages of messages at the request of the State Department in 2014, she also told her aides to erase an equal number of emails she claimed were personal. During the midst of the campaign in August, Clinton’s attorneys provided thumb drives containing copies of other work-related messages to the Justice Department.
"Appellants sought the only relief provided by the Federal Records Act—an enforcement action through the Attorney General. But nothing the Department did (either before or after those complaints were filed) gave appellants what they wanted. Instead of proceeding through the Attorney General, the Department asked the former Secretary to return her emails voluntarily and similarly requested that the FBI share any records it obtained. Even though those efforts bore some fruit, the Department has not explained why shaking the tree harder—e.g., by following the statutory mandate to seek action by the Attorney General—might not bear more still. It is therefore abundantly clear that, in terms of assuring government recovery of emails, appellants have not “been given everything [they] asked for.” Absent a showing that the requested enforcement action could not shake loose a few more emails, the case is not moot."
The Department of Justice, which represents the National Archives and the State Department in the litigation called for by Cause for Action and Judicial Watch has not commented.
Judge Williams did not mention the emails that were found on the laptop belonging to former U.S. Rep. Anthony Weiner, which was surrendered as part of a separate investigation. Weiner is the estranged husband of Clinton’s confidante, Huma Abedin. However, the judge appears to believe that more emails may await discovery and that the record does not prove what the State Department has done to recover emails Clinton exchanged on a separate BlackBerry-based account during the first weeks of her job as Secretary of State. "While the case might well ... be moot if a referral were pointless (e.g., because no imaginable enforcement action by the Attorney General could lead to recovery of the missing emails), the record here provides no factual support for finding mootness on that basis," Williams wrote.
The appeals ruling does not order the district court to force State to refer the issue to the Justice Department. Therefore, the cases may still be dismissed on other grounds before the referral on the basis of the Federal Records Act is made. The judges did not rule as to whether Attorney General Loretta Lynch would be required to sue if given a referral on the issue.
Judge James Boasberg, who issued the initial decision that said the two cases were moot, was appointed by President Obama.
Tom Fitton, president of Judicial Watch, released a statement today about the finding. "The courts seem to be fed up with the Obama administration’s refusal to enforce the rule of law on the Clinton emails. Today’s appeals court ruling rejects the Obama State Department’s excuses justifying its failure to ask the attorney general, as the law requires, to pursue the recovery of the Clinton emails. This ruling means that the Trump Justice Department will have to decide if it wants to finally enforce the rule of law and try to retrieve all the emails Clinton and her aides unlawfully took with them when they left the State Department."