WASHINGTON—A federal appeals court has ordered lawsuits by Judicial Watch and Cause of Action seeking to force the federal government to recover Hillary Clinton’s missing emails to move forward, reversing a lower court’s dismissal.
When Secretary of State John Kerry refused to take all lawful measures mandated by federal law to recover Clinton’s emails, Judicial Watch and Cause of Action brought separate lawsuits seeking to force Attorney General Loretta Lynch to launch a Justice Department investigation, a request that federal law says should have originated from Kerry or from the national archivist. A federal trial judge on the U.S. District Court for the District of Columbia dismissed these lawsuits, holding they were moot and no longer appropriate for judicial action.
On Dec. 27, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit reversed, ordering the lower court to restart proceedings on the lawsuit. The panel included both liberal and conservative judges.
“The Federal Records Act governs the creation, management and disposal of federal records,” Senior Judge Stephen Williams wrote for the court, quoting a previous case. “Due to the importance of maintaining federal records (which are generally accessible to the public through the Freedom of Information Act), the act strictly limits the circumstances under which records can be removed from federal custody or destroyed.”
When a Cabinet officer becomes aware that the removal or destruction of federal records has happened or is imminent, he must notify the head of the National Archives, and then “initiate action through the Attorney General” to recover those records. Despite the Federal Records Act’s clear and unambiguous language, Kerry never did so.
D.C. Circuit precedent holds that the Federal Records Act commands Cabinet secretaries and the Archivist to pursue claims of missing or destroyed records, and does not allow any discretion on whether to do so. Another law—the Administrative Procedure Act (APA)—allows a person to sue over nonperformance of a federal agency action that federal law requires the agency to take. Judicial Watch and Cause of Action brought their suits under the authority of the APA.
Although the State Department’s requesting that Clinton please turn over emails produced some results, the D.C.-based appeals court noted that “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.”
“In terms of assuring government recovery of emails, appellants have not been given everything they asked for,” the court concluded. “Absent a showing that the requested enforcement action could not shake loose a few more emails, the case is not moot.”
The D.C. Circuit therefore sent the case back down to the district court for additional proceedings. The watchdog groups’ lawyers can now seek a ruling on the merits of their case and a court order to Kerry (or his successor) asking the Justice Department to begin law enforcement actions to recover Clinton’s emails.
The appeals are consolidated under the name Judicial Watch v. Kerry, D.C. Circuit docket nos. 16-5015, 16-5060, 16-5061, and 16-5077.
Ken Klukowski is senior legal editor for Breitbart News. Follow him on Twitter @kenklukowski.
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