A federal appeals court has breathed new life into a pair of cases seeking to force the Justice Department to sue former Secretary of State Hillary Clinton to recover more emails from her private server.
The U.S. Court of Appeals for the District of Columbia on Tuesday reversed a lower court’s ruling that the State Department’s review of Clinton’s emails was sufficient — and that no intervention by the Justice Department was needed.
Watchdog groups Judicial Watch and Cause of Action filed separate suits in 2015 seeking to force Secretary of State John Kerry and U.S. Archivist David Ferriero to refer the email issue to the Department of Justice to file a federal records suit to recover the emails.
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U.S. District Judge James Boasberg had previously ruled that state’s efforts to recover the documents — tens of thousands of which Clinton turned over voluntarily in 2014 — were sufficient and threw out the cases.
But the three-judge appeals court panel on Tuesday said that State had not done enough.
“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,” D.C. Circuit Judge Stephen Williams, a Ronald Reagan appointee, wrote in the court’s opinion. “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 panel heard arguments in the case in early November, shortly after FBI Director James Comey roiled the presidential election with a letter informing Congress that investigators had discovered more emails potentially “pertinent” to its then-completed investigation into Clinton’s server.
Comey ultimately said that the emails did not change the bureau’s conclusion that no criminal charges against Clinton for mishandling classified information were appropriate.
Tuesday’s ruling does not order the State Department to make the referral to the Justice Department — nor does it obligate Justice to sue Clinton if presented with a referral.
But the language of the ruling does appear to suggest that the court considers the possibility that the Justice Department’s involvement could uncover more emails.
“While the case might well also 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.
Clinton deleted 30,000 emails in 2014 that she said were of a personal nature. The FBI recovered 15,000 work-related emails that Clinton did not turn over in the set of 30,000 that she returned to the State Department in 2014.
Judicial Watch applauded the decision, arguing that it opens the door for the incoming Donald Trump administration to pursue legal action against Clinton.
“The courts seem to be fed up with the Obama administration’s refusal to enforce the rule of law on the Clinton emails,” Judicial Watch President Tom Fitton said in a statement.
“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.”
Trump campaigned in part on the promise to pursue legal action against Clinton — often encouraging “lock her up” chants during his rallies — over the use of the server, but following the election has said that he will not go after the former secretary of State.