A federal appeals court issued a ruling that could complicate and prolong a slew of ongoing civil lawsuits over access to the messages Hillary Clinton and her top aides traded on personal accounts. | AP Photo
[h=1]Court: Private-account email can be subject to FOIA[/h]By JOSH GERSTEIN
07/05/16 12:00 PM EDT
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On the same day that the FBI announced that the criminal investigation of Hillary Clinton's use of a private email server is likely to conclude without any charges, a federal appeals court issued a ruling that could complicate and prolong a slew of ongoing civil lawsuits over access to the messages Clinton and her top aides traded on personal accounts.
In a decision Tuesday in a case not involving Clinton directly, the U.S. Court of Appeals for the D.C. Circuit held that messages contained in a personal email account can sometimes be considered government records subject to Freedom of Information Act requests.
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The case ruled on by the D.C. Circuit focused on a relatively obscure White House unit: the Office of Science and Technology Policy.
At least one federal judge handling a FOIA suit focused on Clinton's emails said last month he was watching to see how the D.C. Circuit ruled in the dispute involving Obama science adviser John Holdren and an account he kept on a server at the non-profit Woods Hole Research Center in Massachusetts.
After the conservative Competitive Enterprise Institute filed suit over a request for work-related emails sent to or from that private account used by Holdren, U.S. District Court Judge Gladys Kessler ruled last year that the government had no duty to search an email account that wasn't part of OSTP's official system.
But the three D.C. Circuit judges who ruled Tuesday all said Kessler was too rash in throwing out the suit and they agreed the case should be reinstated.
While the opinions in the case make no mention of Clinton or her private server, it seems evident that all three appeals judges involved are aware of the obvious analogy.
"If a department head can deprive the citizens of their right to know what his department is up to by the simple expedient of maintaining his departmental emails on an account in another domain, that purpose is hardly served. It would make as much sense to say that the department head could deprive requestors of hard-copy documents by leaving them in a file at his daughter’s house and then claiming that they are under her control," Judge David Sentelle wrote in an opinion joined by Judge Harry Edwards.
Judge Sri Srinivasan wrote separately, but came to much the same conclusion: that the fact a different domain name was used was not a sufficient basis—standing alone—to defeat a FOIA lawsuit.
"A current official’s mere possession of assumed agency records in a (physical or virtual) location beyond the agency’s ordinary domain, in and of itself, does not mean that the agency lacks the control necessary for a withholding," Srinivasan wrote.
It was not entirely clear on what points Srinivasan disagreed with his colleagues, but his opinion seemed a tad friendlier towards Clinton's predicament. He suggested that an agency might have no duty to obtain a former official's records in response to a FOIA request or suit, and might not even have the duty to do so even if a current official was involved.
Still, some of the suits in litigation over Clinton's emails involve requests sent to State while Clinton was still secretary.
While it's difficult to predict exactly how the appeals court's decision will affect the ongoing Clinton-related FOIA litigation, the ruling seems likely to bolster efforts by conservative groups to press for more answers from Clinton, her aides and the State Department about how her private server system was set up, why it wasn't searched in response to FOIA requests and how Clinton's lawyers determined that about 32,000 messages in her account were purely personal.
Clinton had that set of messages erased at about the same time she turned over to the State Department about 30,000 messages her team deemed work-related. The FBI recovered some of the deleted messages during its investigation and the new D.C. Circuit ruling could make it more likely some of those messages will eventually be made public.
Read more: http://www.politico.com/story/2016/07/private-email-freedom-of-information-225100#ixzz4DYZbtGKF
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‘EXTREMELY CARELESS’ — BUT NOT INTENTIONAL
Really - intent defines her decision - it is her reasoning that was off and that is nothing new
FBI Director James Comey Made 5 Damning Claims About Hillary’s Emails…But Decided Not to Indict!
So who wants an extremely careless person to be POTUS.....LOL
Really - intent defines her decision - it is her reasoning that was off and that is nothing new
FBI Director James Comey Made 5 Damning Claims About Hillary’s Emails…But Decided Not to Indict!
So who wants an extremely careless person to be POTUS.....LOL
On the foreign intelligence targeting of the Clinton emails, Van Cleave said there is no question the former secretary of state knew her email messages were and are targeted by spy services.
“The working assumption of the intelligence community is that they have it all and damage assessments are still underway,” Van Cleave said. “She simplified their job by neatly packaging all of her email out of the hands of government security personnel. If that isn’t an open-and-shut case of ‘gross negligence’ under the espionage laws I don’t know what is.”
Van Cleave said she is concerned by the precedent of not prosecuting a former senior government official who mishandled classified information. “If government workers see their leaders play fast and loose with classified information with impunity, what is the incentive for them to behave differently,” she said.
“The working assumption of the intelligence community is that they have it all and damage assessments are still underway,” Van Cleave said. “She simplified their job by neatly packaging all of her email out of the hands of government security personnel. If that isn’t an open-and-shut case of ‘gross negligence’ under the espionage laws I don’t know what is.”
Van Cleave said she is concerned by the precedent of not prosecuting a former senior government official who mishandled classified information. “If government workers see their leaders play fast and loose with classified information with impunity, what is the incentive for them to behave differently,” she said.
[h=1]Former DOJ Attorney: Clinton Could Have Been Prosecuted[/h]SHARE
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BY: Jack Heretik
July 5, 2016 3:05 pm
Jacob Frenkel, a former Department of Justice attorney, said on CNBC Tuesday that he believed that Hillary Clinton could have been prosecuted over her email practices on CNBC.
After giving deference to FBI Director James Comey, Frenkel then said what he found disturbing with the FBI’s findings. Comey said Clinton was “extremely careless” with classified material but that he would not recommend charges be brought.
“What I found a little bit more troubling is the continued and repeated reference to intent. They found no evidence of intent. There was one other point that he made during the press conference that I found a little bit troubling, which was they could not find any other such case historically,” Frenkel said. “As to the issue of intent, he did describe what I would call a significant pattern, a significant practice, that there is a substitute in the law for criminal intent.”
“In lay terms, it’s the ostrich head in the sand. In legal terms, it’s called deliberate ignorance or willful blindness or conscious avoidance. That is a point that he did not address and it certainly sounds like the type of situation that a reasonable prosecutor in other circumstances involving somebody who is not the secretary of state may well have considered finding that there is a legal substitute for criminal intent. As to not find such a case historically, that to me, flies somewhat in the face of a lot of other aggressive prosecution theories that the Department of Justice always does not hesitate to reach out and bring.”
After saying again that he would defer to Comey, Frenkel added that there are a lot of questions that are still unanswered.
“I think the Department of Justice, senior prosecutors, certainly can review this and I think there is a basis for the Department of Justice to come to a different conclusion,” Frenkel said.
TWEET
BY: Jack Heretik
July 5, 2016 3:05 pm
Jacob Frenkel, a former Department of Justice attorney, said on CNBC Tuesday that he believed that Hillary Clinton could have been prosecuted over her email practices on CNBC.
After giving deference to FBI Director James Comey, Frenkel then said what he found disturbing with the FBI’s findings. Comey said Clinton was “extremely careless” with classified material but that he would not recommend charges be brought.
“What I found a little bit more troubling is the continued and repeated reference to intent. They found no evidence of intent. There was one other point that he made during the press conference that I found a little bit troubling, which was they could not find any other such case historically,” Frenkel said. “As to the issue of intent, he did describe what I would call a significant pattern, a significant practice, that there is a substitute in the law for criminal intent.”
“In lay terms, it’s the ostrich head in the sand. In legal terms, it’s called deliberate ignorance or willful blindness or conscious avoidance. That is a point that he did not address and it certainly sounds like the type of situation that a reasonable prosecutor in other circumstances involving somebody who is not the secretary of state may well have considered finding that there is a legal substitute for criminal intent. As to not find such a case historically, that to me, flies somewhat in the face of a lot of other aggressive prosecution theories that the Department of Justice always does not hesitate to reach out and bring.”
After saying again that he would defer to Comey, Frenkel added that there are a lot of questions that are still unanswered.
“I think the Department of Justice, senior prosecutors, certainly can review this and I think there is a basis for the Department of Justice to come to a different conclusion,” Frenkel said.
