Judge Tosses Lawsuits Over Clinton Emails

     WASHINGTON (CN) – A federal judge dismissed a pair of lawsuits that sought to force the government to more aggressively seek to recover emails that Hillary Clinton kept on a private server while she was secretary of state.
     U.S. District Judge James Boasberg’s ruling was a blow to conservative groups – Judicial Watch, founded by legal activist Larry Klayman, and the Cause of Action Institute – who had claimed the State Department and National Archives violated the Federal Records Act by allowing Clinton to use a personal email address and the private server for official government business.
     They contended the federal government hasn’t done enough to claw back and gather all of Clinton’s emails, and wanted the court to order the agencies to sue the Democratic presidential hopeful to recover all work-related emails in her possession.
     The two cases were consolidated in August.
     But on Monday Judge Boasberg declared the issues they raised “moot” after he concluded the Obama administration’s efforts to recover the emails including, but not limited to, the FBI’s taking possession of the controversial server were “hardly the actions of a recalcitrant agency head or an uncooperative Archivist.”
     Clinton’s use of a private email server during her time as secretary of state has been national news since The New York Times broke the story last year.
     Since then, Clinton opponents and critics of the administration have repeatedly raised concerns over security and government accountability.
     Judicial Watch and the Cause of Action Institute both argued the administration should have involved the attorney general in the quest for Clinton’s emails.
     The responded by maintaining the steps it had already taken to recover the emails should be sufficient to satisfy the groups’ requests.
     Boasberg agreed with the government, saying the Federal Records Act allows agency heads to skip asking for the attorney general’s help if the it is able to recover and maintain the records by itself.
     “While the FRA does require agencies to take some enforcement action, it does not require them to immediately ask the Attorney General to file a lawsuit,” Boasberg wrote in his 17 page opinion.
     While the plaintiffs claimed the Act only allows agency heads such discretion in a preemptive effort to prevent records from being unlawfully removed or destroyed, Boasberg could not find any support in the statute for such a claim, according to the opinion.
     Judicial Watch and the Cause of Action Institute also claimed Secretary of State John Kerry and United States Archivist David Ferriero have been “unable or unwilling” to recover Clinton’s emails, a claim Boasberg found patently false.
     Kerry’s State Department has actually taken a “number of significant corrective steps” to recover the emails, Boasberg wrote.
     Clinton provided the State Department with roughly 55,000 pages of emails after Under Secretary of State for Management Patrick Kennedy requested she do so, and the agency has been generally responsive to requests for more information about that release, Boasberg wrote.
     To the judge these efforts reflected, “a sustained effort on the part of State and NARA, after the agencies had learned of the potential removal of federal records from the government’s possession, to recover and preserve all of those records.”
     Boasberg kept open the possibility that the groups could file suit again if new information about other emails the State Department did not recover comes to light, but determined the groups could not cast such a wide net in trying to find these emails.
     “They may bring these to the attention of the State and the Archivist, and if those entities fail to take recovery action, Plaintiffs may file a new FRA suit,” Boasberg wrote. “But they cannot sue to force the recovery of records that they hope or imagine might exist.”
     Boasberg used similar reasoning to deny the plaintiffs’ motion to allow jurisdictional discovery, which they claimed might help to ward off the judge’s ultimate dismissal of their claims.
     “Jurisdictional discovery is not a vehicle Plaintiffs may use to hunt for any kernel of fact marginally relevant to the court’s subject-matter jurisdiction, nor is it a “talisman whose mere utterance can ward off an impending motion to dismiss,'” Boasberg wrote, quoting an opinion in NBC-USA Housing Inc., Twenty-Six v. Donovan, a 2010 case dealing with jurisdictional discovery.
     A representative for the Cause of Action Institute did not respond to an emailed request for comment on Wednesday.
     Judicial Watch President Thomas Fitton said the group has already filed a notice of appeal and suggested the law is unambiguous in Kerry’s obligation to get the attorney general involved in investigating the emails.
     “There’s got to be this request to the attorney general,” Fitton said. “It says ‘they shall’ and the court gets it wrong unfortunately, and that’s why we have to appeal.”

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