December 29, 2016
Law ‘strictly limits circumstances under which records can be removed from federal custody’
A federal appeals court has ruled that Donald Trump’s U.S. attorney general, which will be Sen. Jeff Sessions, R-Ala., will be required by law to intervene in the case of Hillary Clinton’s use of an unsecured, private computer server in her home for classified information.
The decision from the U.S. Court of Appeals for the District of Columbia states clearly that the law requires it, rejecting the Obama State Department’s excuses for failing to ask the attorney general, as the law requires, to pursue the recovery of the Clinton emails.
The conclusion came in a lawsuit brought by Judicial Watch, operating with the slogan “nobody is above the law”, that is seeking to retrieve Clinton emails that were not released to the public.
Judicial Watch President Tom Fitton said 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,” he said. “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.”
A lower court had said the dispute was moot, even though the current secretary of state, John Kerry, failed to comply with the Federal Records Act in trying to recover the Clinton emails.
Judicial Watch explained that according to the law, “If an agency head becomes aware of ‘any actual, impending, or threatened unlawful removal … or destruction of 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 records.‘”
The appeals court ruled: “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.”
Judicial Watch brought the case in May 2015 when the State Department refused to take action after Kerry was notified of the “unlawful” removal of the Clinton emails.
The appeals court decision reverses a lower court’s decision to dismiss the case and sends it back for further work.
The Daily Caller pointed out that the decision is “offering President-elect Donald Trump an opportunity to intervene in the controversial case.”
“The court provides a new opening to Trump and his attorney general designate, Alabama Republican Sen. Jeff Sessions. A congressional vote confirming Sessions could occur as early as Jan. 10, but Senate Democrats indicated they will put up a stiff fight to defeat the nomination.”
Kerry had simply refused to refer the case to the attorney general “as federal law requires,” the report said.
“Instead, he allowed State Department officials to pick and choose which emails could be withheld and released to the public.”
After suggesting during the presidential debates that Clinton would end up in jail over her behavior, Trump stated that prosecuting her for the email scandal was not a priority.
However, he didn’t rule out legal steps that would be recommended by the Department of Justice.
The three judges on the appeals court panel were Robert Wilkens, Stephen Williams and Brett Kavanaugh.
It was also reported only weeks ago that Judicial Watch was asking a court to rule that the State Department should release a number of emails it specifically has withheld because they pertain to government “misconduct.”
There are about 30 known emails being withheld for various reasons, including “deliberative process” and “work product,” which are exemptions to requirements that public records be available.
Judicial Watch argues the emails should be released because “Clinton’s email practices at the State Department constitute misconduct.”
The original FBI investigation into Clinton’s email scandal concluded in July without charges, even though FBI chief James Comey said Clinton had been “extremely careless,” sending national security information through an unsecured private email server.
A little more than one week before the election, emails were found on a laptop computer to which both Hillary Clinton aide Huma Abedin and her estranged husband, former Rep. Anthony Weiner, who was being investigated in a sexting case, had access.
Comey informed Republican members of Congress he needed to time review the new information, but two days before Election Day he announced the conclusion he reached in July had not changed.