Doug Ross, The Daily Caller
Lawyers seeking access to FBI records about Hillary Clinton’s private email server presented the Department of Justice with a dilemma on Monday when they filed a court document that may require the government to turn over the records or admit that the FBI investigation of the Clinton server is criminal in nature.
So far, the FBI has said that the Clinton email probe is an investigation, contrary to Clinton and Co.’s claim that it is a mere “security review.” But FBI Director James Comey last week declined to say whether the investigation is a criminal one.
Investigators are looking into whether classified information was mishandled on Clinton’s server.
In response to a federal lawsuit filed by Vice News reporter Jason Leopold seeking a variety of records related to the server, the government has claimed that it must keep the documents secret because they are part of a “pending or prospective law enforcement proceeding.”
In March, the Justice Department submitted a classified document in federal court calling for summary judgement of Leopold’s case. Leopold, who also filed the lawsuit that led to the release of Clinton’s State Department emails last year, sought correspondence between the FBI and the State Department and Clinton team regarding the email server. He also sought any emails that Clinton may have deleted but which were recovered by the FBI.
But Leopold’s lawyers, Ryan James and Jeffrey Light, argued in court papers filed Monday that the FBI has not provided enough evidence to justify the withholding.
They argue that in order to shield documents from production under the Freedom of Information Act, federal agencies “should be able to identify a particular individual or a particular incident as the object of its investigation and the connection between that individual or incident and a possible security risk or violation of federal law.”
“The FBI has not cited, at least in its public filings, to any ‘statutes whose violation could reasonably have been thought evidenced by’ Ms. Clinton’s use of a private email server,” the lawyers write.
They argue that Clinton may not be in violation of federal law but could instead be in violation of non-criminal federal regulations regarding preservation of federal records.
If that is the case, the FBI’s justification for withholding the documents would not meet the threshold for keeping the documents secret “which requires a showing of a connection to a possible crime.”
“Mr. Leopold’s position is that the government must provide more information about the investigation pursuant to which the records from Ms. Clinton’s server equipment were obtained,” James told The Daily Caller.
He does add that even if the government does show that the records are related to a valid law enforcement investigation, releasing the State Department records from Clinton’s server and other documents sought by Leopold will not necessarily interfere with the FBI’s investigation.
In Monday’s court filing, James and Light also argue that the FBI failed to conduct a thorough search for emails sent between the bureau and State Department and Clinton campaign. The FBI’s National Press Office and the Investigative Publicity and Public Affairs Unit were not searched, the lawyers pointed out.
They also assert that “given the high-profile nature of this case,” a search of the offices of the Director, Deputy Director, Associate Deputy Director, Chief of Staff, and Deputy Chief of Staff “should have been searched, or alternatively, the FBI should have explained why these offices would not be reasonably likely to possess responsive records.”