House Republicans Jason Chaffetz and Bob Goodlatte wrote this week to U.S. Attorney Channing D. Phillips, alleging that Hillary Clinton perjured herself four times in sworn testimony before Congress in 2015. Their call for another Clinton investigation and prosecution is a transparent attempt to harm Clinton’s presidential chances as their own candidate tanks in the polls. It is highly, highly unlikely to result in charges or a conviction. Why? It’s simple. Because of the law, and the facts.
First, the law: 18 U.S. Code § 1621 requires perjury to be committed with “intent,” or as the statutory language states, “willfully” stating under oath something that the speaker “does not believe to be true.” There is nothing in the four allegations against Clinton that indicate she intentionally lied.
The facts: There are four alleged instances of perjury.
1. Clinton said there was nothing marked classified that she sent or received. That’s actually true. The three emails in question had partial markings like this: a “(c)” in the body of the email. Not only is that not a complete “classified” demarcation under Federal law, the emails themselves did not in fact contain classified material.
2. Clinton said that her team “went through every email.” This is true. They relied on header information and key word searching. Which is standard practice in my line of business, government investigations. The GOP is trying create a lie where there was none, by saying her team didn’t read every email. She never said they did.
3. Clinton said there was only one server, and that’s true. During her entire tenure as Secretary of State, there was just one server set up in her home. After she left office, her data was migrated to an external service that used multiple servers.
4. Clinton said she provided all the work related emails that she had, but the FBI found several thousand that were not handed over to the Department of State. Although this is the closest call, there is no evidence that Clinton did not make best efforts to provide all of her emails she believed to be in her possession. And there is nothing damaging in the additionally discovered emails that suggest Clinton intentionally lied about what she provided to the FBI.
In sum, the GOP is hoping to inject more doubt about Clinton’s honesty into the news cycle. Unlike her opponent, whose multiple, daily falsehoods are demonstrably untrue, there is nothing in the facts or law that support a prosecution for perjury.