Referral for Clinton perjury probe could come next week

Referral for Clinton perjury probe could come next week
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The House Oversight Committee is expected to send a formal request asking the FBI to open a criminal investigation into allegations that Hillary ClintonHillary Diane Rodham ClintonDemocrats worry they don't have right candidate to beat Trump Krystal Ball credits Gabbard's upswing in 2020 race to 'feckless' Democratic establishment Outsider candidates outpoll insider candidates MORE lied to Congress as soon as next week, a committee aide told The Hill.

Despite a vow Thursday from Chairman Jason ChaffetzJason ChaffetzElijah Cummings, Democratic chairman and powerful Trump critic, dies at 68 House Oversight panel demands DeVos turn over personal email records The Hill's Morning Report - Presented by JUUL Labs - Trump attack on progressive Dems draws sharp rebuke MORE (R-Utah) to deliver a referral to FBI Director James Comey “in the next few hours,” committee leaders are still working on the request, the aide said.

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Rep. Trey GowdyHarold (Trey) Watson GowdyFive landmark moments of testimony to Congress Conway spars with Wallace on whether White House will cooperate with impeachment inquiry after formal vote Gowdy: I '100 percent' still believe public congressional hearings are 'a circus' MORE (R-S.C.) said Friday that he was reviewing more than 100 transcripts of witness testimony before the House Select Committee on Benghazi to determine whether such a referral was appropriate.

“If a witness said something to a committee of Congress and/or under oath that is not consistent with the truth, our committee, like every other committee, has an obligation to refer that to those who actually do investigate,” Gowdy told reporters. “But we do not investigate crimes in Congress.”

Gowdy confirmed that the committee has not yet submitted a referral to the FBI.

The move comes on the heels of the Justice Department’s decision not to press charges against Clinton for her use of a private email server while she was secretary of State. Republicans, outraged that Clinton appears to be getting off scot-free despite mishandling classified information, have quickly pivoted to accusing her of perjury.

At issue is Clinton’s marathon 11-hour testimony before the Benghazi panel last year, during which she insisted under oath that “there was nothing marked classified on my emails, either sent or received.”

But Comey revealed on Thursday that Clinton did, in fact, exchange emails through her private server that included information marked classified, though he provided some cover for Clinton during his testimony before the House Oversight Committee.

“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,” Comey said, referring to the official system of marking certain paragraphs as “confidential,” the lowest level of classification.

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

And in order to commit perjury — which is a felony — a person must be proven to have lied willfully.

“Did Hillary Clinton lie under oath?” Chaffetz asked Comey during his Thursday testimony before the Oversight Committee.

“Not to the FBI. Not in a case we're working,” Comey replied.

Asked if 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.

“We out of respect for the legislative branch being a separate branch, we do not commence investigations that focus on activities before Congress without Congress asking us to get involved,” Comey said later.

Democrats have already pushed back on arguments that an investigation into Clinton’s testimony is needed.

Ranking Member Elijah Cummings (D-Md.) called a criminal investigation “unwarranted” in a letter sent to Chaffetz late Thursday.

He argued that the emails marked with a C accounted for only three out of tens of thousands of emails and that statements made Thursday by State Department spokesman John Kirby indicated that those markings were a clerical error.

Kirby did not make any definitive statements about the three emails revealed in Comey’s investigation but spoke generally about how inaccurate classification markings might appear in a document through “human error.”

“Given this context, it appears that markings in the documents raised in the media reports were no longer necessary or appropriate at the time they were sent as an actual email. Those markings were human error. They didn't need to be there,” Rep. Bonnie Watson Coleman (D-N.J.) said on Thursday. She pressed Comey on whether he knew this; Comey said no.

Cummings appeared to obliquely chide Chaffetz for the proposed referral.

“Criminal referrals to the Department of Justice are very serious matters, although they are not always treated as such by some Members of Congress,” Cummings wrote.

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.

Julian Hattem contributed.