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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