Oh, come on — we can take a guess, can’t we? James Comey played coy when asked in a House Judiciary hearing this morning whether the FBI will take up the perjury referral regarding Hillary Clinton’s testimony to Congress on her e-mail scandal. Not only did Comey shrug off the question, he shrugged off giving a timeline for providing an answer:
FBI Director James B. Comey on Wednesday refused to provide the House Judiciary Committee with any clue about whether the bureau will comply with a request that it investigate Hillary Clinton for perjury.
“You cannot tell us whether you are indeed investigating?” Chairman Bob Goodlatte (R-Va.) demanded during a hearing on FBI oversight.
Comey insisted that 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.
Even without the FBI’s already demonstrated distaste for pushing prosecution for Hillary, there are plenty of reasons why the perjury referral won’t go anywhere. In nearly sixty years, only six successful prosecutions for perjury before Congress have been made. The bar for perjury prosecutions is high anyway; one has to prove knowingly false statements intentionally made that were material to the matter before Congress (or a court). Given the political nature of Congressional hearings and testimony (no matter who’s in charge of what the topic is), the reluctance of prosecutors to step into that minefield may be a lot more understandable than a retreat from enforcing 18 USC 793.
Even so, House Republicans have pushed for almost three months to get the FBI to act. Oversight chair Jason Chaffetz directly challenged Comey himself in early July to open an investigation. If none will be forthcoming, then Comey needs to be forthcoming himself and make it clear.
Don’t bet on prosecution, though. Comey wouldn’t even acknowledge that having classified material on an unauthorized and non-secure laptop was a crime. Judiciary chair Bob Goodlatte pressed the FBI director on that point when Comey acknowledged finding classified material on Cheryl Mills’ computer:
The Wall Street Journal ripped Comey and the Department of Justice for their promiscuous use of immunity, especially since the demand for such deals more or less showed that the beneficiaries knew full well that they had broken the law:
Beth Wilkinson, who represents Ms. Mills and Ms. Samuelson, says the immunity deals were designed to protect her clients against any related “classification” disputes. This is an admission that both women knew their unsecure laptops had been holding sensitive information for more than a year. Meanwhile, Mr. Comey also allowed Ms. Mills and Ms. Samuelson to serve as lawyers for Mrs. Clinton at her FBI interview—despite having been interviewed as witnesses and offered immunity.
The FBI also offered immunity to John Bentel, who directed the State Department’s Office of Information Resources Management; to Bryan Pagliano, Mrs. Clinton’s IT guru; and to an employee of Platte River Networks (PRN), which housed the Clinton server. Usually, the FBI only “proffers” immunity deals in return for genuine information. In this case the FBI seemed not to make any such demands. The deals also did not include—as they often do—requirements that the recipients cooperate with other investigating bodies, such as Congress.
Meantime, the FBI waited until late Friday to dump another 189 pages of documents from its investigation, including notes from interviews with Ms. Mills and Ms. Samuelson, Mr. Pagliano, Clinton confidante Huma Abedin, and Platte River Network employees. They raise even more questions.
And when will we get the actual answers to those questions? Comey will get back to you. Sometime.