FBI silent on pending Clinton perjury probe

FBI silent on pending Clinton perjury probe
© Victoria Sarno Jordan

FBI Director James Comey on Wednesday refused to provide the House Judiciary Committee with any clue about whether the bureau will comply with a request to investigate Hillary ClintonHillary Diane Rodham ClintonWoman behind pro-Trump Facebook page denies being influenced by Russians Trump: CNN, MSNBC 'got scammed' into covering Russian-organized rally Pennsylvania Democrats set to win big with new district map MORE for perjury.

“You cannot tell us whether you are indeed investigating?” Chairman Bob GoodlatteRobert (Bob) William GoodlatteProgressive group targets GOP moderates on immigration Florida shooting reopens CDC gun research debate Congress punts fight over Dreamers to March MORE (R-Va.) asked during a hearing on FBI oversight.

Comey said he would not comment on a pending referral.

“When do you expect you will be able to tell us?” Goodlatte asked.

“I don’t know,” Comey said.

Goodlatte, along with Oversight Committee Chairman Jason ChaffetzJason ChaffetzTrump, GOP at new crossroads on deficit Chaffetz: Spending vote means GOP 'lost every single bit of credibility' on debt Let’s not fail in our second chance to protect Bears Ears MORE (R-Utah), in July issued a criminal referral to U.S. District Attorney Channing Phillips, asking him to investigate whether Clinton lied to Congress during her marathon 11-hour testimony before the Select Committee on Benghazi.

Shortly before, the FBI had released an unprecedented amount of information that it had collected during the investigation into Clinton’s use of a private server while secretary of State that critics of the Democratic presidential nominee quickly seized on as evidence that she should have been prosecuted. 

Asked during the course of an Oversight hearing whether the FBI had investigated “her statements under oath on this topic,” Comey said no, noting that he would need a referral from Congress to conduct such an investigation. 

“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," the two GOP leaders wrote in their formal request, sent shortly thereafter. 

The FBI is not obligated to open an investigation based on a referral from Congress, several former Justice Department prosecutors told The Hill.

While there may be some cases when a referral requires a response, that’s “the exception and not the rule,” one former official said.

Democrats have characterized the referral as a partisan attack designed to damage Clinton’s bid for the White House.

At issue is Clinton’s under-oath testimony that “there was nothing marked classified on my emails, either sent or received.”

But Comey revealed in July that Clinton did, in fact, exchange emails through her private server that included information marked classified.

In order to commit perjury — which is a felony — a person must be proved to have lied willfully.

Officials have characterized those markings — a small “C” at the top of classified paragraphs — as atypical. Clinton told investigators that she did not know what a small C in that context meant, an explanation Comey has backed up in subsequent testimonies. 

“I think it’s possible — possible — that she didn’t understand what a 'C' meant when she saw it in the body of an email like that,” he said in July. 

Standard government practice is to mark emails containing sensitive information at the top of the message or in the subject line.