Law & the Courts

Why Won’t the Benghazi Committee Compel Hillary to Testify?

Given the evidence of her obstructing the investigation, nothing less than public testimony will suffice.

As one who was very pleased by the selection of Representative Trey Gowdy (R., S.C.) to chair the Benghazi Select Committee, I hate to seem like I’m haranguing him (see, e.g., here and here; but see also here). His investigative decisions, however, continue to be baffling.

The latest development in the Hillary Clinton e-mail saga is the disclosure by her private attorney, David Kendall, that she has deleted all e-mail from the private server on which she improperly conducted government business while she was secretary of state. (See Shannen Coffin’s latest legal analysis regarding laws potentially broken by Mrs. Clinton here.) In light of the obvious ramifications this has for the Benghazi investigation, Fox News’s Greta Van Susteren asked Chairman Gowdy what he intended to do about it. Gowdy responded:

We’re going to have a conversation with Secretary Clinton. I would hope that it would be a transcribed interview, which is private, it protects her privacy. It protects national-security interests. And it rebuts this notion that this is a political charade, which some Democrats suggest. Let’s have a private conversation about why you had your own server, why you didn’t return the records when you left the State Department. And why you decided to permanently delete them when you knew the congressional investigations were ongoing.

The Washington Examiner is now reporting that Gowdy’s committee has, in fact, “formally requested” that Mrs. Clinton appear for a private, transcribed interview — not compulsory public testimony. It is hard to say what is more disappointing: the chairman’s plan or the instincts and apparent motivation behind it.

There is now significant evidence that Mrs. Clinton has been obstructing congressional investigations into the Benghazi massacre for well over two years. As Chairman Gowdy also told Ms. Van Susteren, congressional committees put Mrs. Clinton and the State Department on notice in the weeks immediately following the terrorist attack on September 12, 2012, that all relevant records should be preserved. Clearly, Mrs. Clinton had such records and improperly withheld them: Even by her own very suspect account, she finally surrendered Benghazi-related e-mails to the State Department in late 2014 (from among the thousands of e-mails she concealed on her private server after leaving the government nearly two years earlier).

RELATED: The Latest Bombshell From Mrs. Clinton’s Lawyer

This disclosure about withheld information does not occur in a vacuum. We also know that a senior State Department official, Raymond Maxwell, has come forward to reveal that he interrupted a furtive Sunday morning document-mining session: specifically, he saw State Department personnel, under the direction of then–secretary Clinton’s top aides (including chief-of-staff Cheryl Mills), going through stacks of records that were to be turned over to State’s internal (Accountability Review Board) investigation of Benghazi. They did this, Maxwell says he was told, in order to “pull out anything that might put anybody” in the State Department’s upper ranks “in a bad light.”

As Chairman Gowdy also knows, the State Department under Secretary Clinton’s direction was neck-deep in the Obama administration’s purging of references to terrorism and al-Qaeda from the Benghazi “talking points” to be disclosed to the public. Furthermore, Gowdy has spent the last few weeks explaining that he was misled by the State Department into believing that it would be transparent and cooperative with him — to the point that he made what he has admitted was an error by failing to subpoena Mrs. Clinton’s private e-mails as soon as he learned about their existence.

In light of all these circumstances, it would be very poor judgment to take representations from Mrs. Clinton (in consultation with her lawyers) in a private conversation, even one that is transcribed.

Mrs. Clinton may well be provably guilty of obstructing congressional investigations, but let’s stipulate for argument’s sake that she is not. There can be no gainsaying that she has been toying with congressional committees and flouting the truth-seeking process from the start of inquiries into Benghazi. And this is against the backdrop of an administration so opaque and disingenuous in its dealings with Congress and the courts that the attorney general — Obama’s chief law “enforcement” officer — has been held in contempt of Congress for obstructing an investigation.

RELATED: The Five Worst Clinton E-mail Excuses

#related#If Gowdy’s investigation is to be serious, it needs to be taken seriously by the people from whom information must be pried. That means Mrs. Clinton should not be invited to have a private conversation with committee staff about her improper private e-mail system. She should be compelled to testify under oath. A good investigator is not indulgent of a recalcitrant witness who is making a mockery of the investigative process. He uses the tools the law gives him to make it crystal clear that that he is not running a kangaroo court. He makes certain that witnesses and the public understand that the law requires compliance with congressional-committee demands for information. This shouldn’t be a case of Gowdy asking Clinton to please do him a favor.

Mrs. Clinton’s testimony should be public. The Benghazi congressional investigation is a public-accountability investigation. In the absence of compelling needs for secrecy, it must be public. There is no good reason to extend the courtesy of a private interview to a former government official who is already known to have made extraordinary efforts to conceal her official government communications from the public.

Thus we must examine why Chairman Gowdy would make such an offer. He provides three reasons: to protect Mrs. Clinton’s privacy, to protect national-security interests, and to rebut Democratic claims that he is engaged in a “political charade.” None of these rationales makes sense. Let’s take them in order.

‐All witnesses have privacy concerns. As a result, there are legal privileges (e.g., against self-incrimination, to safeguard attorney-client communications, etc.) that can be asserted to refuse to answer questions that delve into private matters. Mrs. Clinton is a lawyer and she has highly capable legal representation. If a committee question to her implicates a legally cognizable privacy interest, she will have no trouble claiming her privilege at that time. Furthermore, it must be remembered that it is she who, though a public official, chose to commingle her private and official communications against federal law, regulations, and practice. Consequently, she is in a far poorer position than the ordinary witness to complain about invasions of privacy.

‐ The national-security concern is frivolous. Congress conducts public hearings all the time in which the witnesses have access to both classified and non-classified information that may be relevant. Lawmakers know not to seek to elicit classified information in the public setting, and witnesses know that, if they must refer to classified information to answer a question, they can refuse to answer in public and suggest going into closed session.

In the matter of Mrs. Clinton’s e-mails, the national-security concerns are even less compelling than usual, for two reasons. First, Mrs. Clinton has publicly represented that she did not keep classified documents or other classified information on her private server. If she is telling the truth, there is no national-security basis for avoiding public testimony. And even if she is not telling the truth, the fact remains that she chose to maintain a private communications system outside the government system’s protections against hacking and espionage. Foreign-intelligence services and hostile groups with cyber-spying capabilities have already been able to penetrate her communications, so it’s a tad late in the day to worry about that.

Second, as I’ve previously outlined (here and here) the Justice Department has indicted a participant in the Benghazi attack, Ahmed Abu Khatallah. That is, the executive branch – the branch of government responsible for safe-keeping classified information – has made clear that there is no national security reason to avoid a public trial of a terrorist, despite the risk that sensitive information helpful to our enemies may be disclosed in the process. How can it be, then, that a congressional committee, in conducting a public investigation, the main purpose of which is to hold public officials accountable, thinks it appropriate to question a public official who is a critical Benghazi witness privately? A witness, mind you, who has already testified publicly about Benghazi and who voluntarily conducted a highly public press conference about her e-mail practices.

‐As for the concern that Democrats will portray the committee’s investigation as political, so what? Chairman Gowdy has years of prosecutorial experience. Every seasoned prosecutor knows that in every investigation that touches on politics, partisans who stand to be embarrassed or accused of wrongdoing attempt to undermine the investigation by carping that it is politically motivated. That comes with the territory. The investigator’s job is to tune out that noise and proceed with the case. In the end, what the public is going to care about is the evidence and whether the witness’s explanations for her actions make sense. The investigator’s motivations for seeking the evidence will be beside the point as long as the evidence is obviously germane to the investigation. What people remember is what was on Nixon’s tapes, not that committee Democrats had an obvious political motivation to seek them.

Chairman Gowdy has already bent over backwards to accommodate Democrats and attempt to entice their cooperation with his investigation. At their request, he agreed to focus the committee’s much anticipated first hearing on the findings of Mrs. Clinton’s hand-picked Accountability Review Board — an utterly pointless exercise given that the ARB investigation was already known to be hopelessly flawed. More recently, Gowdy conceded that he had made an error in trusting the State Department for six months to obtain Mrs. Clinton’s private e-mails rather than issuing a subpoena to her when he first learned of them.

No matter what Chairman Gowdy does, Democrats are going to be uncooperative and try to undermine the committee’s investigation by attacking his motives. In fact, no sooner did he announce his intention to interview Mrs. Clinton privately than did Representative Elijah Cummings, the committee’s ranking Democrat, rebuke him for failing to take her up on what Cummings insists is her pre-existing agreement to testify “in public and under oath.” And rest assured that if Gowdy had instead demanded public testimony, Cummings would be attacking him for not extending her the courtesy of a private interview. That is the way the game works.

For the chairman to continue making self-defeating accommodations in the hope that this dynamic will change is not merely futile; it is now badly hurting an investigation that has already floundered for ten months. It is way beyond time for Mr. Gowdy to stop worrying about what Mrs. Clinton’s pom-pom squad will say about his investigative tactics. It is time to stop talking about making a vigorous public case and start making a vigorous public case.

— Andrew C. McCarthy is a policy fellow at the National Review Institute. His latest book is Faithless Execution: Building the Political Case for Obama’s Impeachment.

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