In a little noticed brief, filed on Wednesday to a federal court, Department of Justice lawyers outlined a comprehensive defense of the contentious decision by Hillary Clinton to wipe the private email server she used as secretary of state: The attorneys assert that, regardless of whether she used a personal or government account, Clinton was within her legal right to handpick the emails that qualified as federal records — and to delete the ones she deemed personal.



“There is no question that former 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,” write the Justice Department attorneys, representing the State Department in the brief.

The lawyers add that under policies issued by the State Department and by NARA, the National Archives and Records Administration, government employees “are permitted and expected to exercise judgment to determine what constitutes a federal record.”

The filing is the latest in a long-running fight between the State Department and the conservative public interest group, Judicial Watch, over public records related to Clinton’s tenure in the administration. The brief this week, as first reported by the Washington Times, concerns Clinton’s personal emails in particular.

Late last year, in response to an administration record-keeping request, Clinton and her attorneys conducted a review of four years’ worth of email from her personal account, which she used to conduct government business as secretary of state. And in December, Clinton sent the State Department copies of emails she identified as work-related. The 31,830 remaining emails, described as strictly personal, were deleted.

In all the complexity of the email controversy — involving a tangle of concerns about server technology, anachronistic record-keeping practices, and the government’s oblique classification system — a more straightforward question has lingered since news of the email account broke in March: Was it a sound decision by Clinton to, without third-party oversight, determine the emails considered work-related, and therefore part of the federal record — and to then delete the rest?

On both counts, the Justice Department lawyers argue in the affirmative.



The attorneys, representing the State Department, filed the brief in response to a proposed “preservation order” by Judicial Watch: essentially a request that the State Department obtain and/or preserve the 31,830 emails not turned over in December “until the court can fully brief and consider relevant questions of law.” The sought preservation order, proposed to the federal court last week, is part of a Judicial Watch Freedom of Information Act case, re-opened this spring following the disclosure of Clinton’s personal email server. (Of the 30 outstanding FOIA suits relating to Clinton’s tenure at the State Department, Judicial Watch has filed 16.)

The group’s preservation order would also ask that Clinton, her lawyer, and her IT company “confirm in writing under penalty of perjury” whether they or anyone else still hold the emails from the server not already turned over to the State Department.

In the response from the Justice Department, attorneys state that, first and foremost, they cannot comply with the proposed order because there is no legal basis under FOIA law for access to a federal employee's personal records.

The Justice Department also stated that Clinton had the authority to determine what constituted her own personal and federal records — just as she would have were she working on a government email account.

For those reasons, the Justice Department argued, there is no legal basis for the preservation order.

In the brief, the Justice Department lawyers note that the State Department — as with other government agencies that task employees with managing their own emails — requires individuals to “review each message, identify its value, and either delete it or move it to a record-keeping system,” according to NARA rules.

As such, the attorneys state, “there is no question” that Clinton was legally permitted to delete correspondence she considered personal. Because State Department employees “may delete messages they deem in their own discretion to be personal,” the briefing reads, 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.”

The administration attorneys’ argument amounts to one of the most definitive government statements that Clinton was not in violation of the law in deciding to sort and delete the emails herself.

The back-and-forth over the preservation order, as part of a narrow FOIA case, does not address the classification issues that still command sustained political coverage about Clinton.

But in terms of the email submission itself, the lawyers argue that, without reason to believe that Clinton was not honest and forthcoming in selecting and turning over her federal records, no government agency would be required to "recover deleted material based on unfounded speculation that responsive information had been deleted." Such was the case with Clinton, the lawyers say.

The Department of Justice also now possesses Clinton’s email server, which she handed over this spring amid an FBI inquiry into the security of the setup. At the time, a report suggested that investigators might attempt to recover some deleted material. Asked to what end the Justice Department remains in possession of the server — and whether the officials have reason to believe that responsive information had been been deleted — a spokesman declined to comment.

The Clinton campaign did not return a request for comment.

Judicial Watch has since replied to the Department of Justice brief. The court has yet to rule on the order.