Tricky Next Step for House Republicans Who Want Another Clinton Probe

House Oversight committee chairman Rep. Jason Chaffetz, R-Utah, right, and ranking member Rep. Elijah Cummings, D-Md., center, welcome FBI Director James Comey on July 7. House Oversight committee chairman Rep. Jason Chaffetz, R-Utah, right, and ranking member Rep. Elijah Cummings, D-Md., center, welcome FBI Director James Comey on July 7. AP Photo/J. Scott Applewhite

With FBI Director James Comey before his committee on July 7, House Oversight and Government Reform Committee Chairman Jason Chaffetz, R-Utah, suggested he would waste no time. 

“You'll have one in the next few hours," Chaffetz said regarding the “referral” the law enforcement chief said was needed before the bureau could probe whether Hillary Clinton committed perjury before Congress.

As it happened, Chaffetz took four days. He sent one letter to Comey requesting the FBI file on the probe of Clinton’s mishandling of email. Then, teaming up with Judiciary Committee Chairman Bob Goodlatte, R-Va., he sent another to the U.S. attorney for the District of Columbia Channing Phillips.

That letter noted that the FBI’s investigation of Clinton’s use of a private email server while leading the State Department did not include examination of her later statements to Congress. (The example given during last month’s Comey hearing was Clinton’s earlier response to a question posed by Rep. Jim Jordan, R-Ohio, in which she said, “there was nothing marked classified on my emails.")

In writing to the U.S. attorney, the two House chairmen said, “The evidence collected by the FBI during its investigation of Secretary Clinton’s use of a personal email system appears to directly contradict several aspects of her sworn testimony. In light of those contradictions, the department should investigate and determine whether to prosecute Secretary Clinton for violating statutes that prohibit perjury and false statements to Congress, or any other relevant statutes.”

But whether Chaffetz and Goodlatte have such authority has been called into question. The Congressional Research Service, as shown in an analysis leaked to Federation of American Scientists secrecy blogger Steven Aftergood, argues that the separation of powers “significantly limits Congress’ role in the enforcement of federal law.”

It cites a Supreme Court ruling stating that “the executive branch has exclusive authority and absolute discretion to decide whether to prosecute a case.”

These separation of powers principles apply equally, CRS noted, to criminal provisions that have been enacted, in part, to protect the institutional interests of Congress, such as contempt of Congress.

Congress does have a role, the analysis cautioned, in cases involving failure to comply with a congressional subpoena, and when Congress approves a contempt citation, U.S. attorneys must act on it. But “other criminal provisions that protect the institutional interests of Congress do not have a comparable certification or referral process,” CRS wrote.

In the case of Clinton’s alleged perjury, “While historical practice and comity may dictate the desirability of such a referral, the law itself does not appear to require it,” CRS continued. “Moreover, the receipt of such a referral does not require the executive branch to take action.”

Do the lawmakers have other options? “Congress could choose to revive the Independent Counsel statute, which expired in 1999 and has not been reauthorized,” CRS said, referring to the past practice of having a panel of federal judges appoint an experienced attorney or prosecutor to probe executive branch officials. “Alternatively, Congress could, hypothetically, choose to establish its own special investigator to probe the allegations and make non-binding recommendations regarding prosecutions. However, such a congressionally appointed counsel likely would not be permitted to initiate prosecutions on his own.”

Chaffetz’ committee has not heard back from the Justice Department, Government Executive confirmed, nor does it expect to, given the protocol against announcing publicly the existence of such probes.

The Justice Department could not be reached for comment.

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