Court skeptical of seizing Clinton's server

Judges seemed unmoved Thursday by arguments that the government should turn over Hillary ClintonHillary Diane Rodham ClintonWhite House denies pausing military aid package to Ukraine Monica Lewinsky responds to viral HBO intern's mistake: 'It gets better' Virginia governor's race poses crucial test for GOP MORE’s personal email server to private investigators.

As part of a Freedom of Information Act (FOIA) case over the former secretary of State’s emails, conservative lawyer Larry Klayman urged the Court of Appeals for the D.C. Circuit to require that the government take special precautions to preserve as many as possible of Clinton’s emails.


Among other measures, the server should be “taken into court custody and sent to a forensics expert for analysis,” Klayman, who leads Freedom Watch, said during oral arguments on Thursday morning.

“The American people deserve the information now.”

Judges on the appeals court seemed dismissive of the demand, which could foretell a setback for critics of Clinton’s handling of emails.

A lower court is the proper venue for any possible demands to be handed out, suggested Judge Judith Rogers, “as opposed to us trying to guess what’s happened.”

The case is one of many legal vehicles for trying to force disclosure of the thousands of private emails sent by Clinton during her time in office that have yet to see the light of day.  

In the case, Klayman accuses the government of withholding information in a FOIA request he filed about the State Department’s potential leaking of a confidential program targeting Iran.

Klayman filed the FOIA request to see who within the department was responsible for leaking details about the Stuxnet virus — a massively destructive computer worm that reportedly destroyed about one-fifth of Iran’s nuclear centrifuges — to New York Times reporter David Sanger. He alleges details of the bug were leaked in order to make the Obama administration appear tough on Iran.

A district court ruled against Klayman last year, but he appealed and gained new ammunition with the news in recent weeks that Clinton used a private email account connected to a personal server while in office. 

On Thursday, Klayman demanded that the appeals court not only have the district court take a new look at the issue in light of the email controversy, but that it also impose “specific instructions” to force the government to comply. In addition to forcing a review of the server, Klayman said the appeals court should demand the lower panel allow for new affidavits and grant his group's request for additional evidence.

Just this week, the Justice Department told the court that it would be willing to go back to the lower court and have the State Department conduct a new search of the 55,000 pages of emails Clinton recently handed over to the government from her personal server. Clinton deleted an additional 30,000 emails from the server that she said were personal — those are not subject to records laws.

“A partial remand here we think would be appropriate,” Justice Department lawyer Catherine Dorsey told the judges.

While the emails were originally in private hands, “now ... they are agency records” subject to FOIA, she said. 

But Klayman said that’s not enough without additional safeguards to make sure everything is handed over.

“There’s a history of not telling the truth,” he said.

The matter is all the more urgent given the current circumstances, he said, in which American and foreign negotiators are meeting with Iranian officials in tense talks over the country’s nuclear program.

“We are under a time constraint now.”  

The three judges on the appeals court panel seemed unmoved.

“Why couldn’t you ask the district court” to impose limits, asked Judge Rogers. “I just don’t understand that.”

The case was heard by Rogers as well as Judges David Tatel and Sri Srinivasan. Rogers and Tatel were appointed by former President Clinton while Srinivasan was appointed by President Obama.