GOP’s Clinton Email Strategy: Big Demands with Long Odds

An investigation into whether Clinton lied to Congress and a push to revoke her security clearance are unlikely to succeed, but they keep her scandal in the spotlight.

FBI Director James Comey is sworn in Thursday, prior to testifying before the House House Oversight and Government Reform Committee hearing to explain his agency's recommendation to not prosecute Democratic presidential candidate Hillary Clinton over her private-email setup.
AP Photo/J. Scott Applewhite
Ben Geman
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Ben Geman
July 7, 2016, 8:01 p.m.

Re­pub­lic­ans are go­ing big in their push to gain polit­ic­al trac­tion from the Justice De­part­ment’s de­cision not to pro­sec­ute Hil­lary Clin­ton for her email prac­tices.

A suite of new GOP pro­pos­als on both sides of Cap­it­ol Hill are un­likely to bring con­crete con­sequences for Clin­ton.

But they will provide op­por­tun­it­ies for the GOP to keep the email scan­dal alive dur­ing elec­tion sea­son, even as the Justice De­part­ment’s de­cision this week not to bring charges re­moved an ex­ist­en­tial threat to Clin­ton’s pres­id­en­tial run.

The biggest move: a power­ful House Re­pub­lic­an’s pledge to form­ally ask the FBI to re­view wheth­er Clin­ton lied to Con­gress about her email.

At a hear­ing Thursday, House Over­sight Com­mit­tee Chair­man Jason Chaf­fetz prod­ded FBI chief James Comey about wheth­er he in­vest­ig­ated Clin­ton’s state­ments un­der oath, a ref­er­ence to her mara­thon ap­pear­ance be­fore the Se­lect Com­mit­tee on Benghazi last year.

Comey said no, not­ing that would re­quire a re­fer­ral from Con­gress. “You’ll have one. You’ll have one in the next few hours,” Chaf­fetz replied.

The ex­change came near the be­gin­ning of the very high-pro­file hear­ing and drew ex­tens­ive press cov­er­age.

Chaf­fetz’s of­fice did not provide de­tails about the planned re­fer­ral. But whatever form it takes, polit­ic­ally it will give Re­pub­lic­ans the abil­ity to claim that Clin­ton is fa­cing a fresh in­quiry by the Justice De­part­ment.

Leg­al ex­perts say the Justice De­part­ment will likely agree to re­view the mat­ter.

“There will likely be tre­mend­ous pres­sure on the DOJ to thor­oughly in­vest­ig­ate any re­fer­ral from Con­gress on is­sues re­lated to the ac­cur­acy of state­ments Clin­ton made un­der oath to the Benghazi Com­mit­tee be­cause, as Comey test­i­fied today, this would ap­pear to be bey­ond the scope of the FBI’s in­vest­ig­a­tion to date,” said former Justice De­part­ment tri­al at­tor­ney Mar­garet Krawiec, who is now a part­ner at Skad­den, Arps, Slate, Mea­gh­er & Flom.

However, of­fi­cials are un­likely to con­clude that Clin­ton made any in­ten­tion­al mis­state­ments, which is a dif­fi­cult thing to es­tab­lish. Con­vic­tions for per­jury be­fore Con­gress are rare.

“It’s a high bar to meet gen­er­ally,” said Robert Walk­er, the former chief coun­sel to the House and Sen­ate eth­ics com­mit­tees.

“When people testi­fy be­fore Con­gress, they make a vari­ety of state­ments and it’s typ­ic­ally not easy to ex­tract and pin down a state­ment or state­ments that are suf­fi­ciently clear, firm, and in­ten­tion­ally false,” said Walk­er, who is also a former fed­er­al pro­sec­utor.

Walk­er, who is now with the firm Wiley Rein, em­phas­ized that he was speak­ing gen­er­ally and not about the spe­cif­ics of Clin­ton’s state­ments.

While the scope of the planned GOP re­fer­ral wasn’t im­me­di­ately clear, Chaf­fetz spe­cific­ally men­tioned Clin­ton’s claim dur­ing Oc­to­ber’s ap­pear­ance be­fore the Benghazi pan­el that there was noth­ing “marked clas­si­fied” in emails she sent or re­ceived.

The FBI’s probe con­tra­dicted this, con­clud­ing that three mes­sages bore clas­si­fic­a­tion mark­ings in the body of the mes­sages—the let­ter “c” in par­en­theses.

However, Comey said there was no “head­er” in the emails or the text warn­ing that there was clas­si­fied in­form­a­tion, and that it would be a “reas­on­able in­fer­ence” for Clin­ton to be­lieve that the ab­sence of those head­ers meant that the in­form­a­tion was not clas­si­fied.

Over­all, Chaf­fetz’s vow to seek a law-en­force­ment in­quiry in­to Clin­ton’s testi­mony was one of just sev­er­al moves by Re­pub­lic­ans un­veiled Thursday.

In one case, Sen­ate Ma­jor­ity Whip John Cornyn and Sen. Cory Gard­ner floated a bill that would re­voke Clin­ton’s se­cur­ity clear­ances as a res­ult of her hand­ling of clas­si­fied ma­ter­i­al on her private serv­er.

A spokes­man for Sen­ate Ma­jor­ity Lead­er Mitch Mc­Con­nell did not say wheth­er the meas­ure might come up for a vote. It stands al­most no chance of be­com­ing law, but its re­lease, and any po­ten­tial de­bate, provide Re­pub­lic­ans a fresh vehicle to cri­ti­cize Clin­ton over her email sys­tem.

In a sim­il­ar vein, House Speak­er Paul Ry­an very pub­licly sent a let­ter to Dir­ect­or of Na­tion­al In­tel­li­gence James Clap­per ask­ing him not to provide Clin­ton clas­si­fied ma­ter­i­al.

And back in the Sen­ate, 10 Re­pub­lic­ans on Thursday un­veiled a let­ter to Sec­ret­ary of State John Kerry call­ing on him to “im­me­di­ately” sus­pend the se­cur­ity clear­ances of Clin­ton and sev­er­al of her former top aides at the State De­part­ment.

The House hear­ing with Comey ar­rived two days after the FBI chief made pub­lic his con­clu­sion that Clin­ton, when she was sec­ret­ary of State, and her col­leagues were “ex­tremely care­less in their hand­ling of very sens­it­ive, highly clas­si­fied in­form­a­tion.”

In one find­ing, he said that of the 30,000 work-re­lated emails Clin­ton provided to the State De­part­ment from her private sys­tem, “110 e-mails in 52 e-mail chains have been de­term­ined by the own­ing agency to con­tain clas­si­fied in­form­a­tion at the time they were sent or re­ceived,” he said.

However, Comey re­com­men­ded against pro­sec­u­tion, not­ing that no “reas­on­able pro­sec­utor” would bring a case for vi­ol­at­ing stat­utes gov­ern­ing the hand­ling of clas­si­fied in­form­a­tion. The FBI probe did not find evid­ence of “clearly in­ten­tion­al and will­ful mis­hand­ling,” or ef­forts to ob­struct justice, among oth­er reas­ons. At­tor­ney Gen­er­al Lor­etta Lynch agreed and closed the probe.

But, need­less to say, the email saga isn’t over. The As­so­ci­ated Press re­por­ted Thursday even­ing that the State De­part­ment is re­open­ing an in­tern­al probe of “pos­sible mis­hand­ling of clas­si­fied in­form­a­tion by Hil­lary Clin­ton and top aides.”

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