In opposing efforts to reopen Freedom of Information Act (FOIA) cases seeking Hillary Clinton’s e-mails, the Department of Justice is playing perfectly to type. Last week, the department told the D.C. Circuit that there was no reason to re-open a case in which it had previously said it had no e-mail. Justice’s lawyers argued that its prior statements to the court were literally true: It had no such e-mails at the time it conducted its prior searches.
As I previously wrote, the Supreme Court has consistently rejected the notion that private citizens can force the recovery of documents removed from agency recordkeeping systems through FOIA lawsuits. This precedent was established in 1980, in a case involving an effort to force the State Department to produce notes and tapes that Henry Kissinger took with him when he resigned as Secretary of State. The Court reasoned that the Freedom of Information Act requires an agency to search only those records within its possession and control at the time of the request.
The Department of Justice, representing the State Department now, relies heavily on that principle in arguing that, when it made its prior representations to the courts in some pending (and some now dismissed) FOIA cases, the State Department complied with the law. Because Secretary Clinton had removed – and, some might argue, even concealed — her e-mails from agency possession and control, the agency did not have an obligation to search those records in the past. So the Department of Justice’s argument goes, and under the current law, it is likely to succeed.
Instead of giving power to the average citizen to claw back Mrs. Clinton’s records through the Freedom of Information Act, federal law generally allows that only the federal government itself can seek to recover documents removed from its control. The Federal Records Act requires that when an agency head or the Archivist of the United States learns that official records have been or will be removed or destroyed, they must request that the Attorney General initiate a civil enforcement action to recover the documents.
This may be where the Department of Justice’s recent filings fall short. DOJ explains that there is “no basis, beyond sheer speculation, to believe that former Secretary Clinton withheld any work-related e-mails from those provided to the Department of State.” But the very fact that Mrs. Clinton took it upon herself to decide what to produce and what to delete – and the many inconsistencies in her own description of the document-review process – should give the Department of State and the Archivist pause as to whether she produced all of her official e-mails when requested. The State Department seems unconcerned about the possibility of the existence of other e-mails beyond the 30,000 or so Clinton has already handed over. The Archivist, at least, has raised his eyebrows, inquiring in a letter to the State Department about the circumstances surrounding the “potential alienation” of Mrs. Clinton’s e-mail records.
If either the agency head or Archivist fail to act to recover improperly removed e-mails, a private party has some recourse to the courts, although that recourse is limited. A private citizen can petition a court to compel either official to fulfill this statutory duty. As one federal court recently held in a case involving an effort to seek the return of e-mails held in a private account by the Director of the White House Office of Science and Technology Policy:
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. . . . [The private party must] plausibly allege that records have been unlawfully ‘removed’ [from the agency in order to be granted judicial relief].
But judicial relief merely forces the agency head and/or Archivist to fulfill their statutory obligation to ask the Attorney General to sue. In every case, even where a court intervenes, the ultimate decision about whether to seek judicial relief to force return of the improperly removed documents is left with the Attorney General of the United States. And given the Department’s current position that nothing is amiss, the likelihood of a civil enforcement action to force Mrs. Clinton to account for any missing records seems low.
A number of organizations have already begun to seek to reopen FOIA claims long-since closed. But absent some prior misrepresentations by the Department of State in those FOIA cases, this federal scheme leaves little chance of judicial relief for those public-interest and media organizations clamoring for Mrs. Clinton’s e-mail servers to be seized and searched. Even in the face of clear violations of records laws, federal judges are simply unlikely to force the Attorney General to exercise his well-established discretion to enforce the law.
The best chance of recovering Mrs. Clinton’s records, then, currently lies in congressional subpoenas. But that process may take months or even years – with an elaborate and predictable kabuki dance of subpoena, stonewalling, contempt citation, House votes, and, finally, judicial enforcement. A future President Clinton may have served her second term in office before that process is resolved.
So was all hope of recovery of any remaining e-mails lost with Mrs. Clinton’s stroke of the delete button? Perhaps not. Assuming there is anything left to recover after Mrs. Clinton’s rather arbitrary deletion process, there still exists an obvious avenue for relief through Congress that does not involve a protracted subpoena fight: Congress could simply amend the Federal Records Act to make clear that the Attorney General’s duty to seek civil enforcement of the Act is non-discretionary, thus allowing a court to order the Attorney General to fulfill his duty to recover the documents.
Or, if Congress wishes to empower private citizen suits, it could amend the Freedom of Information Act to permit courts to order directly that a private party return improperly removed federal records for preservation by the agency. Such statutory tweaks could be applied immediately to remedy any improper records removal and topple the wall of secrecy Clinton has built around her public service.
— Shannen W. Coffin is a contributing editor to National Review. He is a partner at the Washington, D.C., law firm Steptoe & Johnson LLP and was a senior lawyer in the George W. Bush Justice Department and White House.