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New lawsuit tests Hillary Clinton's claim private email system was legal

Just a day after former Secretary of State Hillary Clinton declared that she violated no law in storing tens of thousands of work-related emails on a private server, a watchdog organization is putting that claim to the legal test in court.

D.C.-based Cause of Action filed a lawsuit Wednesday against current Secretary of State John Kerry and National Archives chief David Ferriero, seeking to force them to recover Clinton's emails and ensure they are placed in government hands. The suit, filed in U.S. District Court in Washington, also asks a judge to issue a legal finding that Clinton illegally removed federal records from government control when she stored them on a private server.

"Fundamentally, when you're head of a Cabinet agency, the Federal Records Act requires you to have an enormous amount of duties in terms of preserving records. Clearly, former Secretary of State Clinton did not exercise those duties diligently," Cause of Action executive director Dan Epstein said in an interview. "What concerns us is the signal is sent when somebody with that much power blatantly ignores the law."

In an interview with CNN on Tuesday, Clinton repeatedly insisted that her decision to use a personal email account and private server as her sole email account as secretary of state did not break any law or government rules.

"Everything I did was permitted. There was no law. There was no regulation. There was nothing that did not give me the full authority to decide how I was going to communicate," Clinton told CNN's Brianna Keilar. "Previous secretaries of state have said they did the same thing."

Legal experts have different views on Clinton's claims. Some contend that the Federal Records Act, National Archives regulations and State Department rules did not permit government officials to routinely keep work-related correspondence outside an official records system. Other lawyers say the law and the rules don't clearly prohibit what Clinton did.

The new Cause of Action lawsuit (posted here) faces some significant hurdles that could preclude a definitive ruling on that question. A judge could consider the issue moot since Clinton turned over 55,000 pages of emails to the State Department in December at its request and later announced that she had the rest of the account erased after her lawyers determined those messages were not work-related.

However, the lawsuit notes that questions have arisen in recent weeks about whether Clinton submitted all of her work-related messages to the department. Records a congressional committee obtained from longtime Clinton confidant and adviser Sidney Blumenthal suggest that some of his email exchanges with her were missing from the 55,000 pages she turned over last year or had been changed in her version. Clinton aides have suggested those emails might never have been sent or received by the former secretary, who is now running for president.

The suit appears aimed at getting a ruling on the question of Clinton's legal duties before the judge delves into the factual question of whether Clinton did or didn't return all her work-related emails to the State Department. However, a judge could conclude that the suit is moot if there is no obvious remedy for any legal violation that may have taken place.

The new case has some parallels to a fight that began more than three decades ago over records of former Secretary of State Henry Kissinger's phone calls. He donated the so-called "telcons" to the Library of Congress when he left office, in an apparent effort to put them beyond the reach of the Freedom of Information Act. After the Reporters Committee for Freedom of the Press and others sued, the Supreme Court ruled that FOIA could not be used to obtain records no longer in an agency's possession.

However, transparency advocates say the justices left the door open to lawsuits seeking to force current officials to recover official records. The new Cause of Action suit appears to be modeled on a similar suit the National Security Archive threatened in 2001 in an effort to force the State Department to demand return of the Kissinger files. Before the suit was filed, State wound up demanding return of the records and Kissinger agreed to return the telcons to the agency's custody.

"We sent a draft complaint and then we met with, I think, both DOJ and the State Department legal adviser's office and persuaded them the complaint had merit and there was no defense to this, and they went and persuaded Kissinger," said Kate Martin, who served as counsel to the National Security Archive at the time.

Of course, unlike Kissinger's stance then, Clinton maintains she's now turned over copies of all the records she has from that time period. The Cause of Action lawsuit seeks to force Kerry and Ferriero to take control of Clinton's server in an effort to recover more emails and to have government officials — not Clinton's private lawyers — decide which are official records.

Cause of Action and other open-government groups wrote to Kerry and Ferriero in March, asking them to insist that government officials seek access to Clinton's server and try to obtain the records in digital form as opposed to the reams of paper Clinton turned over in December. Epstein said he was disappointed that the National Archives has not insisted on such access.

"What you haven't seen is the National Archives demanding the documents. We view that as inconsistent with the Federal Records Act," Epstein said.

While a total of 12 organizations joined the March letter, Cause of Action — viewed as conservative by many in the often-liberal access community — is pursuing the new lawsuit on its own. Asked if others were asked to join the case, Epstein indicated his group decided to move by itself.

"There's questions with standing. Probably the more parties filing petitions, the more easy it is for the defendants to say none of these parties have standing," he said. "Part of the calculus there is strategic."

Clinton's emails are already the subject of more than a dozen newly filed and reopened FOIA lawsuits in federal court in Washington, as well as a case in Florida asserting that the private server was at the core of a racketeering enterprise. The latter case asks a judge to seize the server. He has yet to rule on the request.