Outraged by the FBI’s decision not to prosecute Hillary Clinton over her use of a private email system, Republicans have opened a new front in their long battle with the soon-to-be Democratic presidential nominee, accusing her of lying to Congress about her private email system and classified information that she sent or received.
The chairman of the House oversight committee said Thursday that he would ask the FBI to investigate whether Clinton accurately testified under oath about her email to the House committee investigating the Benghazi attacks. It was that committee that first discovered Clinton was using a private email system.
The Republicans’ focus on Clinton’s statements signaled that while they had given up on seeing her prosecuted for mishandling classified information, they believe the former secretary of state may have perjured herself and attempted to conceal her activities.
A spokesman for committee chairman Jason Chaffetz pointed to a statement Clinton made last Oct. 22 in an exchange with Rep. Jim Jordan, when she said, “There was nothing marked classified on my emails, either sent or received.”
Clinton’s statement clearly isn’t true, Chaffetz argued in a hearing with FBI Director James Comey, who told lawmakers that at least three emails found from Clinton’s private server contained a “portion marking” denoting the presence of classified information.
Other portions of Clinton’s testimony appeared at odds with the FBI’s findings about Clinton’s email system.
For instance, Clinton told the Benghazi committee that she used “a server that was already being used by my husband’s team. An existing system in our home that I used.” Rep. Jim Jordan, seeking clarification, asked if “there were two servers.” Clinton replied, “No.”
But Comey told reporters earlier this week that Clinton had used “several different servers and administrators of those servers” while in office, as well as “numerous mobile devices.”
Referring to earlier reports that Clinton had used a single server, Comey said, “It turns out to have been more complicated that.”
During the October hearing, Clinton also testified that she had provided the State Department “with all of my work-related emails, all that I had.”
But Comey said that “thousands” of emails pertaining to official business hadn’t been turned over by Clinton’s lawyers, who searched her emails to determine which were work-related, but didn’t actually read them all.
Clinton also told the Benghazi committee that her lawyers “went through every single email.”
Comey has said that Clinton didn’t direct the search of her emails, and that the FBI “found no evidence that any of the additional work-related emails were intentionally deleted in an effort to conceal them. Our assessment is that, like many email users, Secretary Clinton periodically deleted emails or emails were purged from the system when devices were changed.”
A spokesperson for Chaffetz told The Daily Beast that the committee would send a referral to the FBI this week in Clinton’s testimony and whether they were truthful. Comey had told lawmakers that the FBI didn’t examine her congressional testimony because it wasn’t part of their investigation.
An FBI spokesperson said the bureau doesn’t comment on referrals for investigation that it receives.
The Clinton campaign disputes the committee and the FBI’s characterizations about classified information in Clinton’s emails, noting that the State Department found two of the emails Comey mentioned were inappropriately labeled. Some of the emails that have been released publicly contain paragraphs in the body of the emails marked with a “(C),” meaning “confidential,” the lowest level of classification.
At the hearing, Republican lawmakers grilled Comey on how Clinton could have possibly not known what the marking meant, and therefore why her earlier statement wasn’t a lie. Comey steered clear of speculating about what may have been going through Clinton’s mind if she saw the marking. But he offered that “it’s possible” that Clinton didn’t know that the (C) meant the information was confidential.
Republicans found that hard to believe in light of Clinton’s lengthy career in public service, including eight years in the White House as first lady, and then terms as a senator and Cabinet member. Classification markings are used routinely in government documents. However, it’s not clear how they ended up in these particular emails.
Comey said that the (C) markings appeared in the course of an exchange between different parties, and that someone “down the chain” inserted them. But the FBI didn’t investigate who that person was or why he or she had inserted apparently confidential information into a non-classified email exchange.
GOP lawmakers tried repeatedly to second-guess Comey’s decision not to recommend a prosecution—a decision that Attorney General Loretta Lynch concurred with on Wednesday—but came up empty. Comey said that he’d never been called to testify as director about an investigation, but that he believed it was important to do so given the intense public interest in the issue of Clinton’s private email server.
Sitting for hours without a break, he patiently answered lawmakers’ questions, even as some were visibly exasperated with his analysis on whether the FBI found any evidence that Clinton and her aides intended to break a law prohibiting “gross negligence” in the handling of classified information.
“We’re mystified and confused by the fact pattern you laid out and the conclusions that you reached,” Chaffetz said in his opening remarks. An ordinary citizen would “be in handcuffs” if he’d done what Comey described just two days ago in public remarks, when he said Clinton and her aides “were extremely careless in their handling of very sensitive, highly classified information.”
The hearing was heavily attended by press and members of the public—the line to get into the meeting looped down the hallway of the Rayburn House Office Building, and most of those who had hoped for a seat were forced to settle for one in an overflow room. Dozens of congressional staff stood at the sides of the committee room.
At one point, Rep. Trey Gowdy, a former federal prosecutor, appeared to lecture Comey, himself a former federal prosecutor, over the meaning of the legal meaning of the word “intent.” Comey said repeatedly the FBI had found no evidence that Clinton or her aides intended to violate laws governing the handling of classified information, which is key to proving criminality.
“You and I both know intent is really difficult to prove,” Gowdy said, suggesting that Comey was being too narrow in his reading of the facts in Clinton’s case. “Very rarely do defendants announce, ‘On this date, I intend to break this criminal code section. Just to put everyone on notice, I am going to break the law on this date.’”
Gowdy has a long history with Clinton, having chaired the Benghazi committee that took her testimony now in the GOP’s crosshairs.
Democrats rushed to Comey’s defense, and blasted their Republican colleagues for calling an emergency committee hearing after Comey came to what he called an independent decision free of any political concerns. Notably, no Republican member offered evidence that Comey had been pressured to reach his conclusion, nor that he had coordinated his decision with the White House or any other executive branch official. Even those lawmakers who questioned his decisions expressed their personal and professional respect for Comey, who served as the deputy attorney general in the George W. Bush administration.
“I firmly believe that your decision was not based on convenience but on conviction,” said Rep. Elijah Cummings, the committee’s top Democrat.
Elsewhere in Congress, Republicans moved on other fronts against Clinton. House Speaker Paul Ryan sent a letter to Director of Intelligence James Clapper, asking him not to provide Clinton with any classified information for the duration of her candidacy. Traditionally, presidential nominees are given classified security briefings after their nominating conventions in order to begin bringing them up to speed on important issues.
A spokesperson for Clapper told The Daily Beast that his office had received the letter “and will respond directly to Speaker Ryan,” but offered no further comment.
In a related development, the State Department announced Thursday that it would conduct “an internal review” into how Clinton and her aides handled classified information. The department had been waiting to complete the review until the Justice Department reached a decision on whether to press charges.
“We will aim to be as expeditious as possible, but we will not put artificial deadlines on the process,” State Department spokesperson John Kirby said in a statement. “Our goal will be to be as transparent as possible about our results, while complying with our various legal obligations. I’m not able to make commitments today one way or the other about what we will be able to disclose.”