A federal appeals court appears poised to revive a lawsuit demanding that the State Department set in motion a process that could trigger government-backed litigation to recover additional emails sent or received by Hillary Clinton during her tenure as secretary of state.
The D.C. Circuit Court of Appeals heard arguments Friday on a pair of lawsuits seeking to force Secretary of State John Kerry to formally notify the National Archives that Clinton's emails were unlawfully removed from government custody. Such a move could lead to a Justice Department lawsuit under the Federal Records Act, seeking to force Clinton and her aides to return any government records in their possession.
During roughly 40 minutes of arguments, two judges on the D.C. Circuit panel, Stephen Williams and Brett Kavanuagh seemed inclined to revive at least one of the suits: a complaint brought by the conservative group Judicial Watch.
The third appellate judge at Friday's hearing, Robert Wilkins, sounded supportive of the district court's ruling tossing the cases out as moot.
U.S. District Court Judge James Boasberg ruled in January that the State Department's issuance of letters to Clinton's representatives seeking any potential federal records, her attorney's response and the ultimate surrender of her computer equipment to the Justice Department as part of the FBI investigation left no obvious additional steps for the court to order.
At the appeals court Friday, Justice Department lawyer Daniel Tenny argued that Boasberg's ruling was correct because the suits, brought by Judicial Watch and another group called Cause of Action, focused on recovering Clinton's server equipment.
However, Williams said Judicial Watch's complaint seemed to cover all of Clinton's work-related emails, including a period of up to a few months at the beginning of her tenure. Given that, the judge said, the lower court should have delved into whether the steps State took to gain access to those emails and any others were sufficient.
Kavanaugh said that if Williams was right that the suit addressed all Clinton's work emails, the ruling below seemed to be wrong.
"If there are emails that are asked for and they're not part of the server, it's a little odd to say the case is moot," Kavanaugh said. "I'm just not seeing how it's moot.....We know--I think we know--I don't know what we know--there are other emails identified that were not on the server."
While no ruling was issued Friday, Williams seemed firmly in favor of reviving at least one of the cases. Kavanaugh was less definitive in his statements, but appeared to be leaning that way, while Wilkins seemed to be in disagreement.
Tenny said State had made a reasonable effort to get any missing messages and that the groups had rushed to court while that work was taking place. He said the groups weren't in a position to argue that State had not acted because it was acting.
"There was an extensive multi-agency, ongoing effort at the time the complaint was filed....This is a far cry from a circumstance in which an agency has done nothing," Tenny said. He also said there was an "absence of allegations that there are other places we're supposed to look" for the records, beyond the server.
Cause of Action lawyer John Vecchione said referring the matter to the Justice Department was critical and significant, because it could take steps beyond simply sending out letters.
"The attorney general has subpoena power. The State Department and the archivist don't...That's important," Vecchione said. He also noted that the attorney general could compel "third parties" to turn over records in their possession Wilkins called "speculative" the arguments that additional emails could be found. "You're not allowed relief that is futile," he said.
Several judges handling litigation over the Clinton emails have indicated that the FBI's efforts, coupled with tens of thousands of pages of records turned over to State by Clinton and her aides, amounted to due diligence to recover any missing records.
However, in recent weeks, questions have arisen about the thoroughness of the FBI investigation. Republican lawmakers have questioned why grand jury subpoenas or search warrants were not used in the investigation.
That sort of move does not appear to have come until this week, after the FBI found potential work-related messages belonging to Clinton aide Huma Abedin on the laptop of her estranged husband, Anthony Weiner. POLITICO also reported that the while the FBI recovered Clinton's server equipment, agents did not demand or even ask for the devices used by top Clinton aides during her tenure as secretary.
During the arguments Friday, Vecchione noted that the formal notice of unlawful removal of records would also be sent to Congress, under the law.
"That could have consequences," the attorney said.
"So, Congress isn't aware of this?" Wilkins asked, prompting laughter in the courtroom.
Williams was appointed by President Ronald Reagan, Kavanaugh by President George W. Bush and Wilkins by President Barack Obama. Boasberg is also an Obama appointee.