In a letter to the Justice Department on Monday, Citizens for Responsibility and Ethics in Washington continued a push — which many consider far-fetched — to investigate Director of National Intelligence James Clapper for lying during congressional testimony earlier this year.
The imbroglio stems from an exchange between Clapper and Sen. Ron Wyden, D-Ore., during a March 12 Senate hearing.
Wyden: “Does the [National Security Agency] collect any type of data at all on millions or hundreds of millions of Americans?”
Clapper: “No, sir. … Not wittingly. There are cases where they could inadvertently perhaps, collect, but not, not wittingly.”
But recent leaks revealed government programs that do just that. Clapper has since called his answer “clearly erroneous” in a letter to Senate Intelligence Committee Chairman Dianne Feinstein, D-Calif., and attributed it to confusion over the question and the difficulty of giving an unclassified response about classified programs. It was “the least untruthful” response he could give, Clapper told MSNBC’s Andrea Mitchell.
“Only in intelligence circles could providing ‘the least untruthful’ response not be considered an outright lie,” said CREW Executive Director Melanie Sloan. “If the administration hopes to maintain any credibility with the American people, Director Clapper must be held accountable for deliberately lying to Congress.”
While histrionic accusations of lying to Congress are frequent and easy to make, taking the actual step of criminally charging someone is a rare occurrence. In the past 70 years, fewer than a dozen congressional witnesses have been successfully prosecuted, according to Justia.
The rarity stems in part from the high political bar to officially charge an individual — the congressional committee must vote to refer the incident to D.C.’s U.S. attorney and provide strong evidence — and in part from opaque laws. A study six years ago found members of Congress were largely unclear how to keep a record during a congressional hearing that would be admissible in a court of law.
CREW’s letter delineates evidence that Clapper violated four criminal statutes, including the general obstruction statute and the general false statement statute.
In 1977, the letter continues, DOJ prosecuted then-CIA Director Richard Helms for lying to Congress about his agencies actions in Chile — “a remarkably analogous situation.” But the majority of those prosecuted for lying to Congress “have typically been tied to larger political scandals” (i.e. Watergate, Iran-Contra), writes John Dean, a former counsel to President Richard Nixon who was imprisoned briefly for lying to Congress during the Watergate scandal. And many of those prosecuted later receive presidential pardons.
With its letter, CREW is hoping the Obama administration will apply the same standard to Clapper as CREW believes it applies to those who leak government information.
“The Obama administration has been extremely aggressive in prosecuting leaks,” Sloan said. “It is only reasonable to expect DOJ to be at least as diligent in investigating high government officials who deliberately lie to Congress.”