Clinton Email Scandal Update: Appeals Court Reverses Lower Court Ruling, Revives Private Email Server Suits

An appeals court reversed a lower court’s ruling on Tuesday saying two U.S. government agencies did not do enough to recover emails pertaining to the investigation involving former Democratic presidential nominee Hillary Clinton’s use of a private email server when she served as secretary of state.

The three-judge panel — comprised of Judges Stephen Williams, Brett Kavanaugh and Robert Wilkins — ruled that the lower court judge should not have thrown out the cases as moot after the State Department received thousands of emails from the FBI and Clinton.

In 2015, watchdog groups Judicial Watch and Cause of Action, in separate suits, demanded that Secretary of State John Kerry and the chief of the National Archives, Archivist David Ferriero, be required to transfer the Clinton email case to the Justice Department in order to consider filing a civil suit so the missing emails could be recovered.

Clinton handed over about 55,000 emails to officials investigating the case but refused to release 33,000 messages saying they were not work-related. She told her aides to erase her personal emails.

Williams of the U.S. Court of Appeals for the District of Columbia Circuit said Tuesday the State Department and the National Archives should have done more than just requesting the FBI and Clinton to hand over copies of the emails.

“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,’” Williams wrote. “Absent a showing that the requested enforcement action could not shake loose a few more emails, the case is not moot.”

Williams said Clinton had two nongovernmental email accounts while secretary of state. She also used her BlackBerry account, which she had while serving as a senator, during the first few weeks as the nation’s top diplomat. Williams wrote that Clinton began using the email account hosted on the private server only in March 2009.

“Because the complaints sought recovery of emails from all of the former Secretary’s accounts, the FBI’s recovery of a server that hosted only one account does not moot the suits,” he wrote.