Judicial Watch, a conservative foundation based in Washington, D.C. has at least 16 open lawsuits against Democratic presidential candidate Hillary Clinton and her aides seeking the release of all of the emails affiliated with the private email account she used while serving as Secretary of State.
However, in a brief filed in federal court on Sept. 9, lawyers with the Justice Department defended Clinton’s decision to wipe her email server and claimed she was within her legal rights to pick which emails qualified as federal records.
Though the personal emails were deleted, the remaining messages were submitted as part of the federal record, which the Justice Department’s lawyers claimed is the standard policy under NARA, the National Archives and Records Administration.
The brief specifically pertains to Judicial Watch’s request for a “preservation order,” which asks that the State Department obtain and preserve the 31,830 personal emails that Clinton didn’t turn over “until the court can fully brief and consider relevant questions of law.”
However, Justice Department lawyers claimed that the request was both unnecessary and legally impossible to fulfill. “The Department objects to the issuance of any preservation order as unnecessary because… former Secretary Clinton has already turned over approximately 55,000 pages of work-related and potentially work-related documents to the Department, and the Department has already taken numerous steps to ensure the preservation of these documents,” Justice Department attorneys representing the State Department wrote in the brief, provided by BuzzFeed.
Because Clinton is allowed to exercise her discretion by deleting emails she deems personal, the Justice Department claims the Judicial Watch argument “reduces to an unsupported allegation that former Secretary Clinton might have mistakenly or intentionally deleted responsive agency records rather than personal records.”
Though this case has nothing to do with allegations that Clinton sent classified or sensitive information on the private server, this fight over personal versus professional emails may shift how the emails she turned over are perceived and evaluated.
Judicial Watch has filed a counter-brief reiterating that they “merely (request) that the universe of existing documents be maintained until ‘a final determination of the suit on the merits.’”
Judicial Watch made the counter claim that NARA’s policies “establishes that current employees may delete personal records that they personally review – this guidance says nothing about the authority of former or departing employees (or their attorneys) to conduct a review and delete records,” a nod to the fact that Clinton is no longer a member of the State Department.
As for the claim that the court cannot legally request more documentation from Clinton because she can decide what's personal and what isn't, Judicial Watch argued that the law surrounding what information can be considered “personal” is fuzzy.
The group also claimed that Clinton’s record of turning over professional email was shoddy. Citing a June 2015 New York Times article entitled “State Dept. Gets Libya Emails That Hillary Clinton Didn’t Hand Over,” Justice Watch argued that Clinton failed “to accurately capture all work emails in the produced 55,000 pages,” meaning their request to preserve all emails is justified.
Though a court ruling hasn’t been issued on the case, the Justice Department’s defense may put a damper on Judicial Watch’s quest to have all of Clinton’s emails released - even those that have already been deleted.