Two separate lawsuits, filed by Judicial Watch and Cause of Action, asked for the email issue to be referred to the Justice Department. The lower court had previously ruled that the lawsuits were moot, as the Department of State’s review of the Clinton emails was sufficient.
"Even though those efforts bore some fruit, the Department has not explained why shaking the tree harder — e.g., by following the statutory mandate to seek action by the Attorney General — might not bear more still. It is therefore abundantly clear that, in terms of assuring government recovery of emails, appellants have not 'been given everything [they] asked for,'" the court ruled. "Absent a showing that the requested enforcement action could not shake loose a few more emails, the case is not moot."
US Secretary of State John Kerry previously declined to refer the matter to the attorney general, even though it is required by federal law. His decision allowed State Department officials to choose which emails they believed should be released to the public.
“The appeals court ruling stops short of ordering the district court to force State to make the Federal Records Act referral to the Justice Department, leaving the possibility the cases could be dismissed on other grounds before such a directive is issued. DC Circuit judges also indicated they were not taking a position on whether the attorney general would be required to sue if presented with a referral on the issue,” Politico reported.
“Today’s appeals court ruling rejects the Obama State Department’s excuses justifying its failure to ask the attorney general, as the law requires, to pursue the recovery of the Clinton emails,” Fitton said in a statement regarding the court’s decision.
While promises to prosecute Clinton was a rallying cry for the Trump campaign, the President-elect has since walked back his statements, saying that prosecuting the former Secretary of State is not a priority. His statements did not rule out his Justice Department continuing an investigation and making legal recommendations.
In 2017, the Department of Justice will decide whether they wish to become embroiled in the email case.