Archives for May 2018

CoA Institute Files Reply in Support of Motion to Order Enforcement Action in Colin Powell Email Case

Washington, D.C. – Cause of Action Institute (“CoA Institute”) today filed a reply in support of its motion for summary judgment in a lawsuit that seeks to compel Acting Secretary of State John Sullivan and U.S. Archivist David Ferriero to fulfill their non-discretionary obligations under the Federal Records Act (“FRA”).  Specifically, CoA Institute has asked the Court to order Sullivan and Ferriero to initiate action through the Attorney General for the recovery of former Secretary of State Colin Powell’s work-related email records, which were hosted on a personal AOL account.  The brief also argues in opposition to Defendants’ recent motion to dismiss on grounds that Secretary Powell’s email has been “fatally lost.”

“Defendants have failed to undermine any element of CoA Institute’s motion for summary judgment,” the brief reads.  “The evidence they offer in support of their mootness claim does not establish fatal loss.  The record before the Court instead highlights Defendants’ complete refusal to turn to the law enforcement authority of the federal government or to investigate the possibility of forensically recovering the records at issue.”

CoA Institute President John Vecchione: “The Federal Records Act leaves Executive Branch officials no room for discretion in choosing when to recover unlawfully removed federal records. When an agency attempts to recover such records on its own, and those efforts prove ineffectual, the agency must go to the Attorney General.  The government bears a heavy burden in trying to avoid this obligation by establishing the ‘fatal loss’ of the records.  That burden has not been met here.”


CoA Institute filed its lawsuit in October 2016. In January 2018, the court rejected the government’s motion to dismiss the lawsuit because of the State Department’s weak efforts at recovery of the emails in question. “The Defendants’ refusal to turn to the law enforcement authority of the Attorney General is particularly striking in the context of a statute with explicitly mandatory language,” U.S. District Court Judge Trevor McFadden opined.  “[T]here is a substantial likelihood that [CoA Institute’s] requested relief would yield access to at least some of the emails at issue.”

In September 2016, the House Oversight & Government Reform Committee held a hearing at which then-Under Secretary of State Patrick Kennedy testified that the State Department had undertaken minimal efforts to retrieve Powell’s work-related email.  After learning that Powell no longer had access to his AOL account or its contents, the State Department merely asked Powell to contact AOL to see if anything could be retrieved.  Despite a request from the National Archives and Records Administration (“NARA”) to contact AOL directly, the State Department never did so.  Ultimately, the agency relied on unreliable hearsay—namely, the reported representations of Secretary Powell’s personal secretary about an apparent phone conversation between someone at AOL and a staff member of the House Oversight Committee—to conclude that no records could be recovered.

—-  CoA Institute’s memorandum in support of its motion can be read here.

—-  CoA Institute’s reply brief can be read here.

About Cause of Action Institute

Cause of Action Institute is a 501(c)(3) non-profit working to enhance individual and economic liberty by limiting the power of the administrative state to make decisions that are contrary to freedom and prosperity by advocating for a transparent and accountable government free from abuse.

For more information, please contact Mary Beth Gombita,

ICYMI: Lee Steven Appears on The Daily Ledger to Discuss Use of Encrypted Messaging Apps at EPA


Last week, Cause of Action Institute Assistant Vice President Lee Steven appeared on The Daily Ledger—a national cable TV political news program airing on the One America News Network. Couched in broader discussion of the “Deep State,” Lee spoke with Graham Ledger, the show’s two-time EMMY Award-winning host, about Environmental Protection Agency (“EPA”) employees’ use of unauthorized communications applications on agency-furnished and taxpayer-funded mobile devices.

Steven’s interview with Ledger comes after Cause of Action Institute’s investigative efforts revealed EPA employees had installed WhatsApp, Signal, and at least sixteen other messaging apps on their work-issued devices. As discussed in the video (and previously written about on this website), EPA employees’ use of encrypted messaging apps is in violation of agency policy and, necessarily, the Federal Records Act as well.