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

FBI Director James Comey testified on Capitol Hill Thursday. FBI Director James Comey testified on Capitol Hill Thursday. J. Scott Applewhite/AP

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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