Some daunting challenges face those public-interest groups that seek to get at Hillary Clinton’s documents through the Freedom of Information Act. Ever since the Supreme Court rejected an attempt to require an agency to search and produce notes and tapes that Henry Kissinger took with him when he left the State Department (Kissinger v. Reporters Committee, 445 US 136 [1980]), courts have rejected efforts to use the Freedom of Information Act as a vehicle to require disclosure of official records that were outside the physical control of the agency. Indeed, one federal court, just this week, rejected an effort by Competitive Enterprise Institute to require the White House Office of Science and Technology to search for e-mails alleged to have been created by its director on a private e-mail server associated with his former employer.
Whoever devised Hillary’s e-mail scheme was likely aware of that limitation. So how does a private party force compliance with the Federal Records Act? Technically, they can’t do much. The act provides for an administrative process to recover records that have been removed from federal control. That process requires that where the agency head (which would have been Hillary Clinton during her tenure and is now John Kerry) learns of “any actual, impending, or threatened unlawful removal, defacing, alteration, corruption, deletion, erasure, or other destruction of records in the custody of the agency,” he or she must notify the archivist and seek civil enforcement by the attorney general.
The archivist has an independent obligation to do the same. “The Archivist shall notify the head of a Federal agency of any actual, impending, or threatened unlawful removal, defacing, alteration, or destruction of records in the custody of the agency that shall come to the Archivist’s attention, and assist the head of the agency in initiating action through the Attorney General for the recovery of records unlawfully removed and for other redress provided by law.” If the secretary of state were to refuse to seek recovery of documents that the archivist believes have been improperly removed from federal records systems, “the Archivist shall request the Attorney General to initiate such an action, and shall notify the Congress when such a request has been made.”
Given that the party line by the Obama administration seems to be that Mrs. Clinton has complied with the Federal Records Act now that she’s returned 55,000 pages of documents to the State Department, it seems likely that the secretary of state won’t seek further action against Mrs. Clinton. The archivist, however, tends to be an honest broker in these circumstances and could seek to initiate action independently. But in either case, it would ultimately be up to the attorney general to file a civil enforcement action against Mrs. Clinton. And once again, it seems doubtful that the attorney general would do so here.
Does that leave private parties without any recourse in the face of inaction by the administration? Not entirely, as the CEI opinion (written by Clinton appointee Judge Gladys Kessler) notes, a private party can seek a court order directing the agency head and archivist to seek enforcement and return of the documents if they fail to do so. “If the agency head or Archivist does nothing while an agency official destroys or removes records in contravention of agency guidelines and directives, private litigants may bring suit to require the agency head and Archivist to fulfill their statutory duty to notify Congress and ask the Attorney General to initiate legal action.” To bring such a claim, a private party “must plausibly allege that records have been unlawfully ‘removed’” from the agency. An e-mail record has not been “removed,” concluded Judge Kessler, as long as a copy also exists on an official account. That suggests, of course, that if there isn’t an official copy of an e-mail, it has been improperly “removed” within the meaning of the Federal Records Act. (The government also conceded as part of that case that a record might also be considered improperly removed if “there is some independent reason why the document should not appear on an unofficial account, such as the presence of classified information” in a private e-mail.)
Does this mean that a private party can force the government to go to court to seek return of improperly removed records (if it can prove there are likely to be more records on the Clinton servers)? That’s not entirely clear. A private party certainly has a right to require the archivist and secretary of state to seek civil enforcement, but all roads lead through the attorney general. If the attorney general declined to bring an enforcement action, even at the request of other agencies, it is a much murkier question whether a court could force his or her hand. Courts are reluctant to force the attorney general (or any executive-branch official, for that matter) to exercise enforcement discretion, and the statute does not plainly require the attorney general to act. So ultimately, efforts to claw back these records through the courts may founder on the attorney general’s refusal to act.
Where does that leave us? Well, private organizations and perhaps media groups will likely go to court anyway, but their prospects of ultimately forcing Clinton’s hand are uncertain in light of what we know. That means it may ultimately be up to a Republican Congress to get to the bottom of this. And given that some congressional committees have been aware of the Clinton private e-mail account for some time as a result of various investigations that have turned up some of those e-mails, that shouldn’t give us much comfort.
The disturbing question in all of this is, Was Hillary Clinton really stupid in setting up these shadow e-mail capabilities? Or was she really smart?