By Barbara Leonard, Courthouse News Service

WASHINGTON (CN) – The D.C. Circuit revived efforts by conservative groups to force intervention by the U.S. attorney general in the effort to recover emails sent by Hillary Clinton on personal accounts while serving as secretary of state.

When a federal judge dismissed the lawsuits by Judicial Watch and the Cause of Action Institute as moot, the court noted that Attorney General Loretta Lynch’s help was unnecessary since Clinton had voluntarily turned over 55,000 pages of emails to the State Department and since the FBI had taken custody of her private server and a thumb drive with electronic copies of the emails.

A three-judge panel of the D.C. Circuit consolidated the group’s appeals and reversed Tuesday.

“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,” U.S. Circuit Judge Stephen Williams wrote for the unanimous court. “It is therefore abundantly clear that, in terms of assuring government recovery of emails, appellants have not ‘been given everything [they] asked for.’ Absent a showing that the requested enforcement action could not shake loose a few more emails, the case is not moot.”

For guidance, the panel looked to precedent from the 1991 ruling Armstrong v. Bush and from the Federal Records Act. The latter in part requires agency heads to ask the attorney general to “initiate action” if they find an employee has improperly removed records from agency custody.

Armstrong meanwhile says private litigants can bring suit under the Federal Records Act if “the agency head or archivist does nothing while an agency official destroys or removes records.”

Though the lower court took this to mean that any action by an agency head bars Judicial Watch from compelling more, Williams said this reading ignores the rest of the opinion in Armstrong and could establish a work around for agencies wishing to slough off their Federal Records Act duties.

“That reading would flip Armstrong on its head and carve out enormous agency discretion from a supposedly mandatory rule,” the 9-page opinion (pdf) states. “Plainly we understood the statute to rest on the belief that marshalling the law enforcement authority of the United States was a key weapon in assuring record preservation and recovery.”

Williams also noted that if Judicial Watch and Cause of Action had only asked for all emails from Clinton’s private server, the State Department and the FBI might have rendered the suit moot when Clinton voluntarily turned over the records she had.

But the groups were also after emails from Clinton’s first weeks in office, when she used an account held over from her time as a senator, according to the opinion.

“At best, the FBI’s possession of the server (plus various electronic and hard copies of related emails) addresses only part of those broad requests – i.e. emails from the home server account,” Williams wrote. “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.”

Judicial Watch President Tom Fitton applauded the outcome in a statement Tuesday, noting that the incoming Trump administration will take up the mantle to pursue attorney general action.

“The courts seem to be fed up with the Obama administration’s refusal to enforce the rule of law on the Clinton emails,” Fitton said in a statement. “Today’s appeals court ruling rejects the Obama State Department’s excuses justifying its failure to ask the attorney general, as the law requires to pursue the recovery of the Clinton emails.”

To Learn More:

Judicial Watch Inc., et al. v. John F. Kerry, et al. (U.S. Court of Appeals for District of Columbia Circuit) (pdf)

McAfee-Owned Company had Access to Hillary Clinton’s Classified Emails (by Steve Straehley, AllGov)