Judicial Watch Wins Appeal: Court Rules State Department Can Be Required To Ask Attorney General to Recover Clinton Emails
DECEMBER 27, 2016
(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.