F ormer intelligence chief James Clapper is poised to avoid charges for allegedly lying to Congress after five years of apparent inaction by the Justice Department.
Clapper, director of national intelligence from 2010 to 2017, admitted giving “clearly erroneous” testimony about mass surveillance in March 2013, and offered differing explanations for why.
Two criminal statutes that cover lying to Congress have five-year statutes of limitations, establishing a Monday deadline to charge Clapper, who in retirement has emerged as a leading critic of President Trump.
The under-oath untruth was exposed by National Security Agency contractor Edward Snowden, who sparked national debate on surveillance policy with leaks to the press.
Many members of Congress, mostly Republicans supportive of new limits on electronic surveillance, called for Clapper to be prosecuted as the deadline neared, saying unpunished perjury jeopardizes the ability of Congress to perform oversight.
“He admitted to lying to Congress and was unremorseful and flippant about it,” Rep. Thomas Massie, R-Ky., told the Washington Examiner. “The integrity of our federal government is at stake because his behavior sets the standard for the entire intelligence community.”
“Political consideration should not affect the Department of Justice from pursuing this matter,” Rep. James Sensenbrenner, R-Wis., said ahead of the deadline. “Complete and truthful testimony is imperative for Congress to conduct effective oversight. It is clear from the evidence and Director Clapper’s own admission that he lied.”
Justice Department spokeswoman Nicole Navas Oxman declined to comment on Clapper or how perjury cases typically would be handled, saying in an email, “No comment or information to be provided.” Clapper, speaking through a spokesman, declined to comment.
Clapper’s problematic testimony occurred a few minutes before noon on March 12, 2013, when he told Sen. Ron Wyden, D-Ore., “No, sir,” and, “Not wittingly,” in response to a question about whether the NSA was collecting “any type of data at all” on millions of Americans. Wyden later said he provided the question to Clapper before the hearing and unsuccessfully asked Clapper to correct the record.
Months later, Snowden revealed in June 2013 that the U.S. intelligence community obtained secret court orders forcing phone companies to turn over millions of U.S. call records on an “ongoing, daily basis.”
Clapper offered at least two different explanations for his inaccurate testimony. In a June 2013 apology letter, Clapper wrote that he gave the “clearly erroneous” answer because he “simply didn’t think of” the call record collection. But in an MSNBC interview the same month, he said he chose to give the “least untruthful” answer because he was “asked a, ‘When are you going to stop beating your wife?’ kind of question, meaning not answerable necessarily by a simple yes or no.”
Many lawmakers said they learned of the call record dragnet from Snowden. The program was ended with 2015 legislation. In addition to the call record program, NSA data collection under Section 702 of the Foreign Intelligence Surveillance Act, which undergirds two large internet surveillance programs, affects data from an unknown number of Americans.
Lying to Congress is rarely prosecuted, but there are some recent examples.
In 2007, second-ranking Interior Department official J. Steven Griles pleaded guilty to lying to senators about links to lobbyist Jack Abramoff. Baseball player Miguel Tejada pleaded guilty to lying to Congress in 2009 after giving false testimony in 2005 about performance-enhancing drugs. Player Roger Clemens was acquitted in 2012 of similarly lying to Congress.
Still, defense attorney Mark Zaid, who works with national security cases, told the Examiner earlier this year that “I honestly don’t think it’s so black or white as to a conviction.”
Zaid said that “Clapper was faced with a difficult choice: Reveal classified information or respond in a [manner] that is not accurate,” and that although “there is no specific national security defense” for perjury, he believes “an argument can be made that he didn’t lie to Congress because that committee knew the information already.”
Jesselyn Radack, a defense attorney who represents Snowden and fellow NSA whistleblower Thomas Drake, however, takes a dim view of Clapper being let off the hook.
“It shows that government officials in positions of power can lie with impunity to Congress and the American people about outrageous abuses, but when ordinary citizens like Reality Winner reveal the truth about the same abuses, they face espionage charges and prison,” Radack said, referring to the NSA contractor charged last year for sending the Intercept a report on Russian attempts to hack election systems.
Since retiring, Clapper has taken a leading role criticizing Trump on television, and he’s regularly treated by national media outlets as a source of truthful commentary on matters of government surveillance.
In March 2017, Clapper said, “I can deny,” Trump’s allegation that President Barack Obama wiretapped his calls in Trump Tower. Clapper, appearing on NBC’s “Meet the Press”, said “no” in response to a question about whether there was wiretapping of “anything at Trump Tower.” He said he would know if there were any such FISA court order, and his claim Trump was wrong was widely circulated.
“There was no such wiretap activity mounted against the president, the president-elect at the time, or as a candidate, or against his campaign,” Clapper said. The journalist who conducted the interview did not inform viewers about Clapper’s false testimony about surveillance, and months after the interview, questions mounted about wiretapping affecting the Trump campaign and Trump Tower.
In September, CNN reported that former Trump campaign manager Paul Manafort, who since 2006 has owned a condo in Trump Tower, was wiretapped under secret surveillance court orders between 2014 and “some point” in 2016 and then again beginning in late 2016 during the presidential transition. Manafort was Trump’s campaign manager between May and August 2016, and it’s unclear if any of that time period was covered in the first wiretap, which reportedly was prompted by his foreign lobbying. The second period of Manafort wiretapping, beginning during the presidential transition, reportedly was premised specifically on Russia’s role in the election and covered a period of time when Trump and Manafort were known to speak on the phone. A FISA order against former Trump campaign adviser Carter Page was issued in October 2016, after he left the campaign.
“I stand on what I said on the fifth of March,” Clapper said in response to reporting on the Manafort surveillance orders. “FISAs are classified, so even if I knew something about it I couldn’t [comment], and I don’t.”
Clapper’s antagonism toward Trump has been wide-ranging.
He told CNN in December that Russian President Vladimir Putin “knows how to handle an asset, and that’s what he’s doing with the president” after a phone call between the leaders. In another interview, Clapper said about Trump’s firing of FBI Director James Comey, “If it walks like a duck, quacks like a duck, and flies like a duck, it sure looks like obstruction to me.” In July, Clapper told Australia’s National Press Club, “I think [if] you compare the two, that Watergate pales, really, in my view, compared to what we’re confronting now.”
In August, Clapper told CNN, “I really question his ability to — his fitness to be — in this office,” and, “I worry about, frankly, access to the nuclear codes.” Trump fired back on Twitter: “James Clapper, who famously got caught lying to Congress, is now an authority on Donald Trump. Will he show you his beautiful letter to me?” Clapper said the letter was short and formulaic.
Last month, after a group of lawmakers renewed their calls for his prosecution, Clapper said on CNN that “I think there are other shoes to drop here — notably finances” in special counsel Robert Mueller’s probe of potential Trump campaign collusion with Russia. “What were the financial relationships between the Trump Organization before the election and the Trump campaign?” he said.
The nonprosecution of Clapper comes after a year of Trump attacking Justice Department Attorney General Jeff Sessions. Frustrated by Sessions’ recusal of oversight power for Mueller’s investigation, Trump called Sessions “VERY weak” in his approach to Hillary Clinton and leakers, but the denunciations and promised action resulted in no additional leak charges or a renewed criminal probe of Clinton’s handling of classified information.
Like Clapper, Sessions faces accusations of giving Congress misleading testimony, regarding his contact with Russia’s former ambassador.