House Oversight Committee Chairman Jason Chaffetz's call for the FBI to investigate
former Secretary of State Hillary Clinton for perjury in her testimony to Congress drew both support and derision, but experts say it isn't likely to succeed if tried.
During Thursday's testimony before the Oversight Committee, FBI Director James Comey was asked by Chaffetz about Clinton's testimony in October in which she made statements that were at odds with Comey's agencies own findings, which he made public on Tuesday.
Clinton told Congress she did not send or receive emails on her personal server that were marked classified and that all government-related emails had been turned over to the State Department. Comey's public statement on Tuesday said there were classified emails sent and received on the system and that his investigators had found some emails that had not been turned over.
Chaffetz on Thursday asked Comey why he had not then investigated Clinton for lying to Congress, and Comey responded that he had not received a referral from Congress to do so.
"Do you need a referral from Congress to investigate her statements under oath?" Chaffetz asked.
"Sure do," Comey responded.
"You'll have one," Chaffetz said. "You'll have one in the next few hours."
Fox News host Jeanine Pirro, a former judge and prosecutor, found the need for a referral preposterous during an appearance Thursday on Fox News Channel's "Your World with Neil Cavuto."
"Really?" she asked. "You don't need someone to refer you what is obviously a crime."
Some on Twitter were in her camp.
And political consultant Dick Morris wrote in a column
that the FBI "will find it hard not to recommend prosecution. The facts are evident and clear."
If they don't, Morris said, the agency will show its partisanship.
But Democratic political consultant Bob Schrum disagreed, echoing the feelings of some Democrats on the House panel who accused Republicans of a wasting tax dollars on a political witch hunt.
Breitbart News editor-at-large Joel B. Pollak argued that Clinton's October testimony wasn't the only time she committed perjury
, saying she "may have committed perjury when she signed a sworn declaration in 2015 stating that she had turned over all work-related emails" and "there were suspicions that Clinton might have committed perjury if and when she had signed the standard exit form, OF-109, which all State Department employees must sign, indicating they have turned over all materials, classified and otherwise, to the government," though the State Department later said it did not have a record she had signed the form.
Committee member Rep. Jim Jordan of Ohio told "Your World" guest host Maria Bartiromo called Comey's statement that he had not looked into perjury "somewhat surprising," adding, "you think that would be something they'd look at."
Yahoo News spoke to lawyers
and other experts who said that proving Clinton lied under oath won't be easy.
"The bottom line is that it will be an uphill fight if they try it," former Justice Department lawyer Robert Cattanach said.
The perjury statutes prosecutors would have to use require they prove Clinton made "materially false, fictitious or fraudulent" statements, according to Yahoo News.
Intent to mislead would be a key factor, and would be hard to prove since Clinton could make the case she simply wasn't aware she was making a false statement. Comey himself said Thursday he believes Clinton may not have understood the "C" on some documents meant they were classified.
"If they made a mistake or if they had bad memory, that's not enough to mean that somebody should be convicted of perjury," Lee Dunst, a former assistant U.S. attorney for the Eastern District of New York, told Yahoo News. "You have to show that they actually knew that what they were saying was false.”
"Her answers were narrow and given in a lawyerly manner for the likely purpose of avoiding even the possibility of being accused of giving a false material statement," national security lawyer Bradley Moss added.
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