Why It's So Hard for Republicans to Pin Perjury Charges on Hillary Clinton

In the month since FBI director James Comey decided not to recommend charges against Hillary Clinton for mishandling classified information in her emails, Republicans have been demanding that the feds shift their investigation into whether the former secretary of state lied to Congress and/or the bureau itself about the nature of the emails stored on her private server.

On Monday, US Representatives Jason Chaffetz of Utah and Bob Goodlatte of Virginia—both prominent House Republicans—sent a letter to the US attorney for Washington, DC, explaining exactly how they thought Clinton lied, following their request last month that the FBI look into allegations that Clinton perjured herself.

Just to drive the point home, House Republicans also dropped a two-minute video contrasting Clinton's testimony before the House committee investigating Benghazi and Comey's statements at a press conference announcing that the FBI had concluded its investigation into Clinton's email servers. It's essentially a campaign ad and also pretty damning on its face:

"I provided the Department [of State]—which has been providing you—with all of my work-related emails, all that I had," Clinton says in the video. In the next instant, Comey appears, in a clip where he states that "the FBI has also discovered several thousand emails that were not among the group of 30,000 emails returned by Secretary Clinton to State in 2014." Cue ominous music.

For those inclined to believe that Clinton and the truth are frenemies at best, the video provides a pretty damning answer to the question it poses at the beginning: "Were Hillary Clinton's statements false?" But proving perjury is a lot more difficult than proving that someone said something untrue while under oath.

"You have to show beyond a reasonable doubt that this person knew that what they were saying is false," Paul Campos, a University of Colorado law professor, told VICE. "Then the bigger obstacle beyond that is you have to show the lie is material to the legal matter that is being investigated." In other words, prosecutors have to not only demonstrate that someone intended to tell a lie, but also that the lie was pertinent to the matter at hand.

Perjury convictions resulting from congressional testimony are incredibly rare; according to a 2007 paper in the Quinnipiac Law Review by lawyer P. J. Meit, there have only been six cases of people being successfully prosecuted for lying to Congress in the past 60 years, even though thousands of people speak before congressional committees every year.

While this speaks to how difficult it is to prove perjury charges, it also reveals another issue: Congresspeople don't usually have experience as trial lawyers and don't know how to ask the right questions. "Although a substantial percentage of congressional members take their role in the investigative process seriously," Meit wrote, "very few have the experience or proficiency to properly question witnesses in a manner that will create a sufficient record if lies are later uncovered."

According to Campos, a hypothetical perjury prosecution of Clinton could also run into problems because she was answering questions about her emails in front of a panel that was supposedly looking into what went on during the Benghazi embassy attack.

"What does Hillary Clinton's use of an email server have to do with the Benghazi investigation?" Campos said. "She can't be hauled before Congress and charged with perjury for lying about something that isn't material to what she's being asked about under a valid subpoena. She can't be subpoenaed to just show up so [Congress] can ask her whatever they want to ask her about. She has to be subpoenaed on the basis of some legitimate investigation."

Clinton undeniably made false or at least misleading statements about her emails in front of that Benghazi panel, as well as in public. But while it may enrage conservatives, her obfuscations in front of Congress almost certainly won't result in charges being brought—as Meit observed in 2007, "Lying to Congress has become accepted."

"Although the potential consequences of lying or misleading Congress, which include fines, jail time, and reputational loss can be severe," Meit wrote. "We have seen that the likelihood of successful enforcement is extremely low, indicating that the calculus a witness potentially makes might provide a conclusion that lying or misleading is worth it in most cases."

The long odds of getting Clinton brought up on charges aren't likely to stop Republicans, however—as America learned from the impeachment of Bill Clinton on perjury and obstruction of justice charges, the GOP is loathe to let a scandal pass without making the maximum amount of noise, even if it goes nowhere.

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