- The Washington Times - Thursday, September 10, 2015

The Obama administration told a federal court Wednesday that former Secretary of State Hillary Rodham Clinton was within her legal rights to use her own email account, to take the messages with her when she left office and to be the one deciding which of those messages are government records that should be returned.

In the most complete legal defense of Mrs. Clinton, Justice Department lawyers insisted they not only have no obligation, but no power, to go back and demand the former top diplomat turn over any documents she hasn’t already given — and neither, they said, can the court order that.

The filings are part of the increasingly complex legal case surrounding Mrs. Clinton‘s emails, which have imperiled her presidential campaign and spawned more than 30 open-records lawsuits, leaving the Obama administration in a legal morass.

On Thursday the administration won one skirmish and lost another after a federal judge agreed to stay one of those open-records cases, while another federal judge rejected the same request in another of the cases.

The State Department says it’s been overwhelmed by all of the requests, and by the myriad judges who are hearing the cases.

Last week the administration asked a federal court to consolidate all of the requests for email production and searches, saying it would help sort out what obligations the department has. At the same time, the Justice Department went to judges already hearing the cases and asked that they be stayed until the consolidation request is ruled on.

Judge Richard J. Leon rejected the request for a stay, while Judge Amy Berman Jackson agreed to it in a separate case.

Those disparate rulings don’t bode well for the administration‘s hopes for consolidation, however, because even one judge could scuttle the request that all of the searches be combined.

“These are individual lawsuits by individual judges, and there’s no power to require one judge to transfer all or part of their cases to another judge,” said Tom Fitton, president of Judicial Watch, which brought 16 of the open-records lawsuits seeking to pry loose information from the emails of Mrs. Clinton and her top aides.

One judge has already ordered the State Department to talk with the FBI to see what other documents might be retrieved from Mrs. Clinton‘s email server.

Mrs. Clinton says she had her lawyers review more than 60,000 messages she sent during her time as secretary, and they deemed about 32,000 of them to be public records. Another 30,000 were deemed private.

The public record messages were printed out and turned over to the State Department, and she says she then expunged all of the messages, public and private, from the server.

Judicial Watch and others say Mrs. Clinton shouldn’t be the one to have decided which of her messages were to be turned over, but the Obama administration says it has no obligation to delve into those decisions.

“There is no question that Secretary Clinton had authority to delete personal emails without agency supervision — she appropriately could have done so even if she were working on a government server,” the administration lawyers argued. “Under policies issued by both the National Archives and Records Administration (‘NARA’) and the State Department, individual officers and employees are permitted and expected to exercise judgment to determine what constitutes a federal record.”

The legal brief said that means employees are required to “review each message, identify its value and either delete it or move it to a record-keeping system.”

Judicial Watch, though, said the administration is ignoring its own guidelines in trying to clear Mrs. Clinton.

“Indeed, the State Department’s own rules specify that personal records of a departing presidential appointee may not be removed from the government until the State Department ‘records officer in cooperation with the S/ES or appropriate administrative office’ approves of the removal, a process which ‘generally requires a hands-on examination of the materials,’” Judicial Watch said in a reply brief.

Mr. Fitton told The Washington Times that the Obama administration is in a difficult position now. On the one hand, it’s conducting an investigation into Mrs. Clinton‘s email arrangement, even as it is defending the arrangement in court.

“Talk about a conflicted position,” he said. “You’re a prosecutor, the FBI, trying to see if there’s a case to be made, and you’ve got your colleagues playing defense lawyer for the Clinton campaign? It shows you this is not just a Clinton scandal, this is an Obama administration scandal.”

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