A federal judge has rejected the federal government’s bid to toss out a lawsuit demanding official action to recover emails former Secretary of State Colin Powell sent during his four years as America’s top diplomat more than a decade ago.
In a ruling Tuesday, U.S. District Court Judge Trevor McFadden called “anemic” the efforts the State Department and National Archives have made to obtain the messages, which Powell sent via an America Online account.
McFadden didn’t immediately order State or the Archives to take further action, but he said that a conservative watchdog group — Cause of Action Institute — can proceed with its suit despite the Justice Department’s arguments that the litigation is fruitless.
Lawyers for the State Department noted that Powell’s representative told the agency that there were no emails left from the period in Powell’s AOL account had been closed for several years and AOL’s general counsel told a House committee that AOL’s system had no emails from his tenure as secretary from 2001 to 2005.
However, drawing in part on the FBI and State Department’s success in retrieving of thousands of emails former Secretary of State Hillary Clinton sent on a private account during her time at Foggy Bottom, McFadden said he believes there’s a “substantial likelihood” an investigation by the Justice Department “will yield access to at least some of Secretary Powell’s emails.”
“Here, all they have done has been to ask Secretary Powell to seek the emails himself, and then declare ‘mission accomplished’ when Secretary Powell’s representative informed them that AOL believed the emails no longer exist,” wrote McFadden, an appointee of President Donald Trump. “If AOL were to be contacted directly by the Government, rather than by Secretary Powell’s representatives, perhaps they would undertake a more thorough search for Secretary Powell’s account, or the servers on which it was stored.”
The judge also suggested that State and the Archives may have a legal obligation to refer the issue to Attorney General Jeff Sessions for his review.
McFadden pointed to a federal appeals court ruling from late 2016 in which the D.C. Circuit held that a judge was too quick to dismiss similar suits pressing State and the Archives to do more to recover Clinton’s emails.
“Even if AOL’s representations are accepted as truthful, the Court is still left without any knowledge of how AOL went about researching the question, and the extent to which Secretary Powell’s emails have been permanently erased or perhaps merely deleted,” McFadden wrote.
Powell’s assistant and a Justice Department spokeswoman did not respond to requests for comment. A State Department spokeswoman had no immediate comment.
When Powell’s email practices drew public attention amid the Clinton email controversy in 2016, Powell defended his email use as part of an effort to try to bring the State Department into the internet era in the early part of the last decade. He noted that he boasted in his memoir about using his AOL account to that end.
“I was not aware at the time of any requirement for private, unclassified exchanges to be treated as official records,” Powell said.
The State Department inspector general eventually found some messages sent to Powell’s private account and concluded that two of them contained classified information, although it was unclear whether they should have been treated as classified at the time they were sent by ambassadors and forwarded to Powell by his staff.
In an interview with POLITICO two years ago, Powell dismissed the classification claims.
“They’re fairly innocuous and very benign and neither ambassador classified them at the time. They were merely information memos sent to State.gov,” Powell said. “Now, 11 or 12 years later, as part of a whole process of reviewing things somebody in the department says, ‘Well, they’re classified.’ My response to that is no they were not. … You can say your judgment is they should have been classified but at the time they were not classified.”