The Corner

Law & the Courts

GOP Senate Should Back Off on Clinton E-Mail Inquiries

Leave it to congressional Republicans to get tough on Obama administration lawlessness, at long last, only after there is an ongoing criminal investigation – one that they will be credibly accused of interfering with if they don’t step back.

According to Politico, Senators Chuck Grassley and Ron Johnson, chairmen of, respectively, the Judiciary and Homeland Security Committee, are pushing a second former State Department employee to testify before their committees about former Secretary Hillary Clinton’s systematic conduct of government business by private email. The first former official in their crosshairs, Bryan Pagliano, refused to answer questions from Congress, relying on his Fifth Amendment privilege against self-incrimination. Pagliano has now reportedly been given immunity from prosecution by the Justice Department in exchange for his cooperation in the criminal investigation. So the senators have moved on to John Bentel, who managed IT security at State while Clinton was there.

Bentel has already spoken with the House Benghazi committee. His lawyer represents that he had “no memory of knowledge” of the server issue. That certainly strains credulity, especially since some of Bentel’s subordinates have conceded knowledge of it. But the point is that, right now, the Republican priority should be to back off and let the FBI proceed with what appears to be a non-partisan, professional, serious criminal investigation.

I made the same argument last month when House Oversight Committee chairman Jason Caffetz (R., Utah) was pushing to investigate the Clinton e-mail scandal under the guise of inquiring into the Obama administration’s lack of compliance with the Freedom of Information Act and Federal Records Act. The two senators are doing exactly the same thing: probing, according to Politico, “whether Clinton or her top staff ever intentionally sidestepped record-keeping laws under the Freedom of Information Act.”

It is perfectly obvious that Clinton’s private e-mail scheme was designed to do just that. And in executing it, it is highly likely that criminal laws were violated. The FBI is trying to build a case to address those criminal offenses. Congress has neither the expertise nor the legal tools necessary to investigate crimes. They can attempt to compel witness testimony by subpoena, but this only makes the FBI’s job more difficult. Forcing a witness to discuss the same issues repeatedly (especially the sloppy way Congress typically conducts questioning) inevitably creates slight inconsistencies that defense lawyers can later exploit if there is a criminal trial, making even an honest witness look like a liar. Moreover, if the FBI and Justice Department are trying to secure cooperation from Benten, congressional threats to compel his testimony complicate those negotiations, giving him more leverage in seeking immunity and other concessions.

There is nothing for congressional Republicans to gain from making it harder for agents and prosecutors to corral witnesses, get to the bottom of what happened, and file criminal charges against any potential offenders. There is, however, a lot to lose. Camp Clinton continues to claim that the investigation is a partisan witch-hunt designed to derail her presidential bid. That claim is laughable as long as the investigation is being pursued by the FBI and the Obama Justice Department – after prompting by inspectors-general appointed by President Obama. But Republicans risk making the claim seem colorable by grandstanding for access to relevant witnesses for the purpose of what would be hyped as politicized hearings.

And toward what end? There is no conceivable doubt that the purpose of Clinton’s homebrew server system was to avoid accountability – i.e., to frustrate and defeat government recordkeeping and disclosure obligations. Congress does not need additional oversight hearings to know this. If lawmakers in the two Republican-controlled chambers had really wanted to do something about this, perhaps – as I suggested over the weekend – they might have thought about slashing funding for Obama’s law-breaking executive branch rather than surrendering on a budget that fully funds the administration and its lawlessness for the remainder of the president’s term. Having abdicated their duty to use constitutional authority with real teeth – the power of the purse – to rein in rogue executive conduct, why resort now to oversight authority that has no teeth and could be harmful to a real effort to hold executive officials accountable?

Republicans in both chambers should back off and let the FBI do its job. If it turns out that the job is done poorly, there will be plenty of time for oversight hearings in a few months. But if the criminal investigation is credible – as laudatory comments about the FBI from leading Republicans have suggested it is – then stop competing with the FBI for witnesses and other evidence. Congressional Republicans will not accomplish anything useful by pushing this, and they are giving fodder to the Clinton “partisan witch-hunt” narrative.

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