DC Appeals Court: Law Required Kerry to Ask AG to ‘Initiate Enforcement Proceedings’ to Retrieve Clinton Emails

By Barbara Hollingsworth | December 30, 2016 | 12:42pm EST
Former Secretary of State Hillary Clinton answers questions from reporters at a March 10, 2015 press conference at the United Nations headquarters in New York. (YouTube)


(CNSNews.com) –A federal appeals court judge ruled on Tuesday that under the Federal Records Act (FRA), Secretary of State John Kerry was required by law to ask Attorney General Loretta Lynch to “initiate enforcement proceedings” to help him and U.S. Archivist David Ferriero recover emails that his predecessor, Hillary Clinton, kept on her private accounts.

The ruling by Senior Circuit Judge Stephen Williams for the D.C. Court of Appeals for the District of Columbia pointed out that not only does the FRA “strictly limit the circumstances under which records can be removed from federal custody or destroyed,” the statute also gives agency heads “no discretion to determine which cases to pursue.”

The decision was the result of a lawsuit filed by Judicial Watch in May 2015 that sought to compel Kerry’s compliance with the FRA after he refused to ask Lynch to help him retrieve tens of thousands of emails sent by Clinton and her top aides while she was secretary of state that had not been turned over to the State Department.

“Secretary of State Clinton used private email accounts during her time at the State Department. As a result, some emails were not preserved in government recordkeeping systems,” according to Judge Williams’ December 27 ruling

“Although the current Secretary (with the help of the National Archivist) has made efforts to recover those emails, neither the Secretary nor the Archivist has asked the Attorney General to initiate enforcement proceedings, as provided for in the (FRA),” the judge wrote.

The law states: “The head of each Federal agency shall notify the Archivist of any actual, impending, or threatened unlawful removal, defacing, alteration, corruption, deletion, erasure, or other destruction of records in the custody of the agency, and with the assistance of the Archivist shall initiate action through the Attorney General for the recovery of records the head of the Federal agency knows or has reason to believe have been unlawfully removed from that agency…”

Although Clinton eventually handed over about 55,000 pages of emails from her private server to the State Department, she admitted at a press conference in March 2015 that she had deleted some 30,000 other emails she claimed were personal – “emails about planning Chelsea’s wedding or my mother’s funeral arrangements, condolence notes to friends as well as yoga routines, family vacations, the other things you typically find in inboxes.”

Williams noted in his ruling that the statute “rest[s] on a belief that marshalling the law enforcement authority of the United States was a key weapon in assuring record preservation and recovery.”

However,“instead of proceeding through the Attorney General, the [State] 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."

Williams overturned a lower court decision in January by U.S. District Court Judge James Boasberg that dismissed Judicial Watch’s lawsuit, which was consolidated with a similar one filed by the Cause of Action (CoA) Institute, on the grounds that it was “moot” because the State Department and National Archives had already retrieved a large number of Clinton’s emails.

“Taken together, all of the recovery efforts initiated by both agencies up to the present day cannot in any way be described as a dereliction of duty. In light of this, plaintiffs cannot establish an ongoing injury actionable under the FRA; as such, their cases are moot,” Boasberg ruled.

But in reversing Boasberg’s decision, Judge Williams pointed out that while the agencies turned over many of Clinton’s email records, “it is… abundantly clear that, in terms of assuring government recovery of emails, appellants have not ‘been given everything [they] asked for’.”

They therefore “sought the only relief provided by the Federal Records Act – an enforcement action through the Attorney General…. Absent a showing that the requested enforcement action could not shake loose a few more emails, the case is not moot,” Williams wrote, remanding the case back to the lower court.

 “The D.C. Circuit has reinforced the lesson that the government is bound to follow the law and that measures short of what the law requires to recover government documents cannot be substituted as ‘good enough’,” CoA Institute vice president John Vecchione said in a statement.

The appellate 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,” Judicial Watch president Tom Fitton also said.

 “This ruling means that the Trump administration will have to decide if it wants to finally enforce the rule of law and try to retrieve all of the emails Clinton and her aides unlawfully took when they left the State Department.”

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