opinion

THIS IS SERIOUS

It’s Not Just Jeff Sessions: The FBI Must Investigate Scott Pruitt for Lying to Congress

Scott Pruitt used private email to conduct government business, but he didn’t say that when asked by the Senate. If Hillary Clinton was investigated for lying, he should be too.

EPA Administrator Scott Pruitt lied to Congress about his use of private email to conduct government business when he was Oklahoma attorney general. And as it did with Hillary Clinton, and as it should do with Jeff Sessions, the FBI should immediately open an investigation into what is becoming an alarming pattern for the Trump cabinet.

A Feb. 17 investigation by Oklahoma City’s Fox 25 news station revealed that Pruitt used a private email account to coordinate strategy and talking points with fossil fuel companies to oppose environmental rules, among other things. And a subsequent review of more than 7,500 emails by the Associated Press showed that Pruitt used his private email to conduct official business, including communicating with staff and lobbyists.

That directly contradicts what Pruitt told Congress in January. In Pruitt’s pre-confirmation questionnaire, Senator Cory Booker asked, “Have you ever conducted business using your personal email accounts, nonofficial Oklahoma attorney general email accounts, text messages, instant messenger, voicemails, or any other medium?”

Pruitt’s responded: “I use only my official OAG [Office of the Attorney General] email address and government-issued phone to conduct official business.”

As we know now, that was untrue. (Pruitt’s EPA office did not respond to a request for comment.)

It may also be a crime. Section 1001 of the criminal code defines the crime of “False Statement to Government Agency” as anyone who “(1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact; or (2) makes any materially false, fictitious, or fraudulent statement or representation” when speaking to government agents or officials (PDF).

This broad statute is the one that sent Martha Stewart to prison for lying about insider trading, and the one under which Henry Cisneros was indicted for lying to FBI investigators during his own confirmation process for secretary of Housing and Urban Development in 1992. The penalty for a Section 1001 violation is identical to that of perjury: a maximum of five years in prison. The two crimes are functionally equivalent.

When it comes to statements to Congress, Section 1001 is limited to “any investigation or review, conducted pursuant to the authority of any committee, subcommittee, commission or office of the Congress.”

This most likely includes a confirmation hearing, according to Pace Law School professor Bennett Gershman.

“Section 1001 clearly covers false statements made knowingly and willfully to congressional committees,” the expert on criminal law told The Daily Beast when asked about Pruitt’s hearing. “This is precisely the argument that some Republicans made in demanding an FBI investigation of Hillary Clinton’s testimony before Congress.”

So what should happen now?

As you may remember from the Clinton email matter, the first step is an FBI investigation, either by request from Congress or at the FBI’s own initiative. That investigation—again as in the Clinton matter—generally includes a recommendation to indict or not to indict, which the Justice Department takes under advisement. (Notoriously, in Clinton’s case, FBI Director James Comey recommended against charging Clinton with perjury, and Attorney General Loretta Lynch followed that recommendation.)

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Will such an investigation take place though? It’s unlikely that House Oversight Committee chairman Jason Chaffetz, a Republican who has thus far declined to investigate a host of alarming allegations regarding Russian contacts with the Trump administration, will do anything.

But Comey could take the initiative on his own. Interestingly, in Clinton’s case, Comey said that the agency was waiting for a congressional request out of respect for Congress—and was blasted for that by Chaffetz, who said the FBI should have launched an investigation on its own. By his own logic, the FBI should get started now.

The case against Pruitt is much clearer than the case against Clinton was for supposedly lying to Congress. Republicans said she lied when she told Congress she didn’t recall sending or receiving any emails marked as classified from her private account. That’s hard to contradict, to prove beyond a reasonable doubt that she saw the emails marked “C,” that they were marked as such when she saw them, that she knew “C” meant classified, and that she knowingly lied in her testimony to Congress.

Or as Comey put it: “no reasonable prosecutor would bring such a case.”

In Pruitt’s case, by contrast, there are literally thousands of emails from the private server, and a clear misstatement that there weren’t any. That’s a much easier case to justify an FBI investigation.

At this stage, it’s too soon to tell whether an indictment is warranted. That, after all, is the point of the investigation. There are two key questions, both of which weigh in favor of a criminal indictment.

First, there’s the statement itself. Did Pruitt knowingly and intentionally mislead Congress? As Senator Sheldon Whitehouse told Politico, Pruitt “used his personal email address to conduct official state business and that he was not honest with the Senate about this during his confirmation process.”

On the other hand, notice the Bill Clinton-esque language in Pruitt’s response to Booker: “I use,” Pruitt said in the present tense. That’s similar to the lawyerly evasion President Clinton used when he was asked about his relationship with Monica Lewinsky. “There is no relationship,” he said at the time.

When he was later confronted with irrefutable evidence of such a relationship (his semen on her infamous blue dress), Clinton noted that he had used the present tense “is” rather than the past tense “was.” Famously, he remarked, “It depends on what the meaning of ‘is’ is.”

Pruitt’s remark was similarly worded. At the time of questioning, his statement, “I use only my official email address,” may have been true, even though he used a private email address in the past. It depends on what the meaning of “use” is.

Second, there’s the question of whether the lie was “material.” In the context of the question, certainly it is. Booker asked directly about private emails, and Pruitt directly lied about them. Moreover, given that the content of the emails bears directly on the matter under scrutiny by the Senate committee—Pruitt’s ties to the fossil fuel industry—it was material in the context of the hearing’s purpose as well. As Whitehouse said, “Lo and behold, the documents Scott Pruitt wanted to keep hidden have confirmed our suspicion.”

The lie is also material politically. The Center for Media and Democracy is gradually releasing Pruitt’s emails, obtained pursuant to a court order in the hopes that the steady drip of embarrassing emails will garner public attention. Pruitt’s statement is material to his very office.

The most important question, though, is political rather than legal. It’s hard to see Attorney General Jeff Sessions seeking an indictment. He has been on the Trump Train since before it was fashionable, and given the administration’s record so far, it seems more likely that the whole thing will be blamed on politics. And such prosecutions are rare in general. A 2007 study published in the Quinnipiac Law Review found only six such convictions in 60 years.

With Attorney General Sessions facing his own possible investigation, he must recuse himself from this matter. However his own case plays out, it is obviously very similar to this one, and he faces a severe conflict of interest. There is no choice but to name a special prosecutor to look into the Pruitt emails when the attorney general himself is under investigation.

But what’s needed, appropriate, and proper now is an FBI investigation. If Congress will not investigate such a blatant lie, the FBI must. Yet another cabinet-level official has dissembled during his confirmation hearings. This cannot be allowed to stand.