Tuesday, December 27, 2016
The D.C. Circuit ruled today that a civil case involving the recovery of some unknown number of apparently not-yet-released Hillary Clinton e-mails is not moot. But the ruling carefully says nothing about the merits and other barriers to moving forward, so it's not yet clear that the ruling will result in any further investigation. It just means that the district court can move to the next steps.
The case arose when Judicial Watch sought a court order compelling Secretary of State Kerry to refer the effort to recover certain e-mails to the Attorney General. Judicial Watch relied on the Administrative Procedure Act and a portion of the Federal Records Act. That Act requires the relevant agency head (in mandatory, non-discretionary language), when he or she becomes aware of "any actual, impending, or threatened unlawful removal . . . or  destruction of [agency] records," to "notify the Archivist . . . and with the assistance of the Archivist [to] initiate action through the Attorney General."
The district court tossed the case on mootness grounds, ruling that Secretary Kerry and the Archivist had made a "sustained effort" to recover the e-mails, yielding "a very substantial harvest," even if they failed to refer the effort to the AG.
The D.C. Circuit reversed. The court ruled that there may still be some un-recovered e-mails out there that the Secretary's and Archivist's efforts haven't revealed--and that therefore require referral to the AG, under the Records Act. In particular, the court said that Clinton used yet different e-mail accounts (other than her private server account) during part of her tenure as Secretary, and that e-mails on these accounts haven't been recovered.
If appellants had only sought emails from the server account, a mootness argument based on the recovery of hte server might well succeed. But the server and the emails it housed do not tell the full story; Secretary Clinton used two nongovernmental email accounts during her tenure at the State Department. . . .
The complaints here sought to ensure recovery [of] all of the former Secretary's work emails, including [on these other accounts]. Because the complaints sought recovery of emails from all of the former Secretary's accounts, the FBI's recover of a server that hosted only one account does not moot the suits.
The ruling sends the case back to the district court. But that doesn't necessarily mean that the court will, or can, order Secretary Kerry to refer the matter to the AG, or that the AG must do anything. As the court wrote,
[W]e express no opinion on whether the Attorney General's action or inaction in response to a referral would be reviewable. Nor do we address possible constitutional defenses that the Secretary or Archivist might raise to the statutory command's constraint on their discretion; they have raised no such argument.