An Appeals court issued a decision related to a lawsuit related to the Clinton emails. What it means, and answering a question posed by Mother Jones' Kevin Drum.
Answering Kevin Drum's Clinton Email Question
December 29, 2016

The DC Appeals court issued a decision related to two court cases suing State and National Archives to refer the Clinton email hunt to the Justice Department for a possible civil suit.

State asked Clinton to voluntarily return her emails, and she did so. Whatever wasn't turned over, was given to the FBI in their investigation. There are no more emails. Period.

However, this decision was based on court cases that were brought before the emails were released by the FBI and State, and before the election. It doesn't mean that the DOJ will now pursue Clinton emails with a civil lawsuit. This just means the FOIA dance is returned to the lower court for further deliberation. The only reason it's still continuing is because the original request was for all Clinton emails, including those on her ATT Blackberry. These weren't turned over because they no longer exist, but this argument wasn't necessarily made in the original case.

I expect the case to be dismissed again in the lower court, after addressing the higher court's concerns. It's a waste of resources, but the higher court was addressing the legal questions posed in the appeal. It can't just disregard the law, no matter what we all know and don't know.

It really is much ado about nothing.

Kevin Drum from Mother Jones covered the ruling, but he also posed a question:

State obviously has the authority to release all of Clinton's emails if it wants to, and Leopold has the right to continue his suit. But in May, US District Court Judge Rudolph Contreras ordered State to release the emails, and to release them on a remarkably specific—almost punitive—rolling schedule. However, his order provided no reasoning for his decision. So here's my question: what was the legal justification for ordering the release of all of Clinton's emails? This has never happened to any other cabinet officer. Can anyone now file a FOIA request for all the emails of any cabinet officer?

The FOIA does allow agencies to refuse a request if it is deemed unreasonably burdensome. The problem is that "unreasonably burdensome" is subject to interpretation, both by the agencies and by the courts. You can't depend on the end result setting the standard because one document search could return 100,000 documents in an hour, while another document search would only return 10, and would take a year. The agency would have to specify why the request is burdensome and the judge would then respond accordingly.

In addition, the courts have demonstrated both a suspicion of agencies in their responses to FOIA requests and, for the most part, an intolerance of agency concerns. There is some justification for this. Agencies have been overly reluctant to release information, especially before President Obama. However, in my opinion, the State Department was right to be concerned about the time to validate the Clinton emails. Not only would each email have to be examined for all of the many applicable exemptions, each would then need to be vetted by other agencies if the agency was even briefly mentioned in the email.

None of this matters, though, when judges rule in FOIA lawsuits. All of this is subject to the Judge's interpretation.

However, here's an interesting twist to this recent appeals and other court decisions: several court cases have set precedent when it comes to the Clinton emails and FOIA requests. We're now heading into a Trump administration, whereby most people picked to lead most agencies are hostile to the actions of their agencies. Transparency will be essential if we're to maintain vigilance and work to defeat the worst of their actions.

All of these agencies are subject to FOIA requests. If the agencies attempt to stonewall FOIA requests and we take them to court, even the most ideological Reagan/Bush/Trump appointee will have a difficult time reversing previous court decisions and denying the FOIA requests.

What worked for Judicial Watch and other organizations like it, will now work for us. They have literally shown us the way to hinder agency actions and dig out even the most buried information. They have demonstrated how we can get the most out FOIA requests, and lawsuits.

It's going to be a busy four years, in the courts and out.

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