Richard Pollock, DCNF
A federal court ruled Tuesday the U.S. attorney general can still get involved in supervising the release of former Secretary of State Hillary Clinton’s emails, offering President-elect Donald Trump an opportunity to intervene in the controversial case.
In fact, the law requires it, according to the ruling by the U.S. Court of Appeals for the District of Columbia. It reversed a lower court decision that the Department of State’s review of Clinton’s emails was sufficient, and any appeal for intervention by the attorney general was “moot.”
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.
Tuesday’s decision in “Judicial Watch vs. Kerry” affects emails the former secretary and her aides sent and received using private email addresses and a homebrew server in Clinton’s New York mansion to conduct official business. About half of the 55,000 pages of emails from the server were voluntarily handed over to the State Department by Clinton’s lawyers.
Current Secretary of State John Kerry refused to refer the matter to the attorney general as federal law requires. Instead, he allowed State Department officials to pick and choose which emails could be withheld and released to the public.
But the three-judge appeals court panel ruled that the Federal Records Act, “requires the agency head and Archivist to take enforcement action through the Attorney General if those (search) efforts are unsuccessful.”
The judges stated that “nothing the (State) 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.
“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. Absent a showing that the requested enforcement action could not shake loose a few more emails, the case is not moot.”
Judicial Watch President Tom Fitton said in a statement that it shows the courts seem ”fed up with the Obama administration’s refusal to enforce the rule of law on Clinton’s emails.”
Fitton added that, “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.”
The Department of Justice early in 2017 will have to decide if it wants to get involved in the email saga and set out to retrieve all the emails given to the State Department by Clinton and her aides.
Trump has said that prosecuting Clinton over the email scandal was not a priority, but he did not rule out legal measures recommended by his Justice Department.
The panel’s judges included Brett Kavanaugh, Robert Leon Wilkens and Stephen Williams.
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