A Federal Court May Have Just Added To Clinton’s Email Woes

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Even as the FBI said Tuesday that it wouldn’t recommend charging Hillary Clinton for putting her work email on a private server, a federal court may have just opened the door to more scrutiny of the Democratic presidential candidate.

The facts of the court ruling have little to do with Clinton herself. But the decision from the U.S. Court of Appeals for the D.C. Circuit appears to hold significant implications for the former secretary of state as she seeks to deflect attention away from her online records and focus her energy on Republican rival Donald Trump.

In a 10-page decision, the D.C. Circuit held that work email stored privately is still subject to Freedom of Information Act requests. The whole point of FOIA, the court said, is to provide transparency on public officials’ behavior while in office. Circumventing that by hosting government documents on non-governmental servers defeats that purpose, Judge David Sentelle said. In other words, work emails are work emails, no matter where they happen to live or who happens to control access to them.

“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,” Sentelle wrote.

Elaborating on the case, Judge Sri Srinivasan wrote in a separate opinion with an analogy to files in the physical world. The government, he said, can’t simply “bury its head in the sand” and not produce a FOIA-requested document just because an employee took it home with her that night. It would still be out there, and the agency would still be responsible for it – although it could decide on other grounds not to release it to the public, as agencies often do.

The case had to do with the private email account belonging to an official who works for the Office of Science and Technology Policy, a branch of the White House. But by the same logic, it’s possible that FOIA requests for Clinton’s work emails could cover not only the ones stored in her government email account, but also those stored privately.

The implications for Clinton are not entirely theoretical: Last month, a federal judge put a temporary hold on a lawsuit related to Clinton’s privately held emails, saying it would be “wise” to wait for the D.C. Circuit to issue its FOIA ruling before moving ahead with the case. It’s still unclear how that lawsuit may turn out, but at the time, the judge appeared to show deference to the D.C. Circuit’s ruling, whatever it was going to be.

Now that the D.C. Circuit has ruled that private email accounts can be subjected to FOIA requests, the result could be greater pressure from conservatives who have sought to make Clinton’s emails an election-defining issue.

(c) 2016, The Washington Post · Brian Fung



  1. I don’t see how the court could hold otherwise. Public records are public records.

    Nevertheless it should be noted that the number of Clinton emails involved pales by comparison to the number of Bush emails missing — certainly numbering in the millions. But the Hillaryhaters never called for investigations there even though they related to a criminal investigation.

  2. Yeh, nice try. The Clintons will NEVER get into trouble for anything. Their constant escapes from the law only emboldens them for more breakage of law in the future.

  3. Charlie Hall:
    The missing Bush emails were found in 2009. And they didn’t involve issues of national security secrets being left open to hackers. Furthermore, the emails weren’t wiped or deleted; they were mislabeled and filed improperly. Whether that was intentional or not is certainly debatable, but the fact is that they weren’t deleted.

    Hillary Clinton, on the other hand, used a private server in her home as her primary or exclusive email account for all her work-related emails, in total violation of guidelines she knew full well existed. When it was discovered, she tried to spin the issue. When the emails were requested, she deleted thousands upon thousands of them and then lied and said she’d handed over all the emails that she was asked for.

    She was in clear violation of the federal penal code which, by the way, makes no mention whatsoever of intent. The only reason she wasn’t indicted is that the FBI didn’t want to indict her for political reasons, not because there were no grounds for it.


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