US Appeals Court Revives Hillary Clinton Email Suit

A US court rules two Federal Agencies failed to follow mandated enforcement action to recover emails from Hillary Clinton’s private server.

Judicial Watch Wins Appeal To Force State Department to Make the Attorney General Recover Clinton Emails.

Judicial Watch Wins Appeal To Force State Department to Make the Attorney General Recover Clinton Emails.

Judge Stephen Williams, of the U.S. Court of Appeals for the District of Columbia Circuit, issued ruling today on behalf of a three judge panel in the matter of “Judicial Watch vs. Kerry” which found that the U.S State Department and the National Archives failed to follow statutory mandates to recover emails from Hillary Clinton after she failed to provide all emails from her personal email server system to U.S. officials investigating the matter.

The ruling overturned a lower court ruling from January which originally found the agencies had made a sustained effort to recover and preserve Hillary Clinton’s email when she provided 55,000 emails to the State Department but deleted another 30,000 that were subject to a Congressional subpoena, claiming the emails not turned over were personal and not work related.

In the ruling, Williams found both the State Department and the National Archives should have done more to recover the emails not turned over by Hillary Clinton  and that both agencies were required to to follow legal mandates to seek assistance from the U.S. Attorney General to take enforcement actions to force Hillary Clinton to turn over the 30,000 emails withheld.

Since the January ruling emails obtained by the FBI in related investigations, as well as emails from both the DNC leaks and the Podesta leaks, revealed some of the emails from Hillary Clinton’s private server system that were not turned over were not turned over in the original investigation were in fact not personal and some of those emails contained classified information.

“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,” Williams wrote, “Absent a showing that the requested enforcement action could not shake loose a few more emails, the case is not moot.”

Williams added, “Because the complaints sought recovery of emails from all of the former Secretary’s accounts, the FBI’s recovery of a server that hosted only one account does not moot the suits.”

The ruling stems from litigation originally filed in 2015 by two conservative groups, Judicial Watch and Cause of Action, which sought to force then Secretary of State John Kerry to seek enforcement action from the Attorney General to recover more emails from Hillary Clinton’s private server system.

In a statement on today’s decision, Judicial Watch President Tom Fitton stated the ruling would force US President-elect Donald Trump’s administration to make a choice to ask the Attorney General to seek enforcement action against Hillary Clinton or risk facing similar lawsuits from the Judicial Watch to force his administration to seek recovery of the missing emails.

“The courts seem to be fed up with the Obama administration’s refusal to enforce the rule of law on the Clinton emails,” Fitton wrote in a Judicial Watch press release issued today.

“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,” the release stated.

Hillary Clinton’s email system consisted of at least 13 mobile and related devices and hosted multiple accounts for Hillary Clinton and her staff on at least two servers for which backups are said to be available on commercial cloud hosting accounts. Additionally, some staffers used commercial email accounts from non-government email accounts using providers such as Yahoo, Google and Microsoft which the may also be forced to turn over emails related to the investigation.

The ruling made it clear that then Secretary of State John Kerry refused to seek enforcement from the Attorney General as required by federal law requires to recover emails from these systems.  Instead the Podesta Leaks published by Wikileaks revealed that Kerry allowed Hillary Clinton lawyers and staff to pick and choose in private negotiations with State Department officials which emails would be released to the public and which would be withheld.

The three-judge panel, which included Brett Kavanaugh and Robert Leon Wilkens along with Judge Williams, ruled the Federal Records Act, “requires the agency head and Archivist to take enforcement action through the Attorney General if [their own collection] efforts are unsuccessful.”

The judges ruled “nothing the (State) 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.”

Here’s the full press release from Judicial Watch:

Judicial Watch Wins Appeal: Court Rules State Department Can Be Required To Ask Attorney General to Recover Clinton Emails

(Washington DC) – Judicial Watch President Tom Fitton made the following statement regarding today’s ruling by the U.S. Court of Appeals for the District of Columbia Circuit in a case that would require Secretary of State John Kerry to seek the help of the attorney general in recovering additional Hillary Clinton emails:

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.

The appellate ruling reverses a decision in which the District Court declared “moot” a Judicial Watch’s lawsuit challenging the failure of Secretary of State John Kerry to comply with the Federal Records Act (FRA) in seeking to recover the emails of former Secretary of State Hillary Clinton and other high level State Department officials who used non-“state.gov” email accounts to conduct official business (Judicial Watch, Inc. v. John F. Kerry (No. 16-5015)). According to the FRA, if an agency head becomes aware of “any actual, impending, or threatened unlawful removal . . . or destruction of [agency] records,” he or she “shall notify the Archivist . . . and with the assistance of the Archivist shall initiate action through the Attorney General for the recovery of [those] records.”

An appellate panel found:

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.

In May 2015 Judicial Watch filed the lawsuit after the State Department failed to take action following a letter to Kerry “notifying him of the unlawful removal of the Clinton emails and requesting that he initiate enforcement action pursuant to the FRA,” including working through the Attorney General to recover the emails.  Judicial Watch’s lawsuit subsequently was consolidated with a later lawsuit by Cause of Action Institute.  This ruling reverses a January 2016 decision by the U.S. District Court for the District of Columbia dismissing the case and remands it.

 

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