House Republicans are pushing for a FBI probe into whether Clinton lied to lawmakers about her emails during Benghazi committee testimony. | Getty Clinton unlikely to face perjury charges in email scandal History is not on Republicans' side as they push for an FBI probe into whether Clinton lied to lawmakers about her emails.

House Republicans are pushing for a new FBI investigation into whether Hillary Clinton lied to Congress during her marathon testimony before the Benghazi committee, but if history is any guide, the chances of perjury charges are practically nil.

“It will be a shark with no teeth,” said Rusty Hardin, the lawyer who successfully defended the pitcher Roger Clemens when he was charged with lying to Congress about doping in 2010. “Perjury is a very, very difficult crime to prosecute.”


House Oversight Committee Chairman Jason Chaffetz on Thursday told FBI Director James Comey that Republicans will soon send a referral to probe Clinton’s past statements to lawmakers about her use of a private email server while she was secretary of state – a scandal that has dogged her presidential campaign.

While Comey announced on Tuesday that the FBI would not recommend charges against Clinton for her improper handling of classified information, he also laid out findings from the investigation that directly contradicted Clinton’s past statements.

He added to the damage for Clinton when he explicitly said at the hearing on Thursday that some of Clinton’s explanations – including her statement under oath before the Benghazi hearing last year that she had never sent or received classified messages – were “not true.”

But Hardin, who worked as a prosecutor for 15 years before opening his private practice in Houston, said the Justice Department rarely moves to charge people with perjury before Congress, and they’re unlikely to make a decision one way or the other before the election.

Even if they did bring her to trial, the defense is likely pretty straightforward: she believed what she was saying at the time, even if it turned out to be inaccurate.

The fact that Clemens was even charged with perjury – lawmakers said he lied when he told a panel in 2008 that he’d never used steroids or human growth hormone – makes his case an outlier.

According to a widely cited 2007 study by P.J. Meitl in the Quinnipiac Law Review, only six people had been convicted of perjury to Congress going back to the 1940s – and two of them were related to the Watergate scandal, another from Iran-Contra.

That doesn’t mean Congress hasn’t been pushing the Justice Department to hold more people accountable.

“They get referrals all the time,” said Hardin, reached as he watched the Comey testimony on television from his vacation in Florida. “Every time a congressman gets bent out of shape about something, they try to refer it.”

The House Oversight Committee has also sought investigations, for example, into Lois Lerner over her testimony about the IRS’s alleged targeting of conservative nonprofits.

The referral moves aren’t always partisan: A year ago, Chaffetz and Rep. Elijah Cummings, the ranking Democrat, acted together to refer the former head of the Chemical Safety Board, who had already resigned in disgrace amid charges of mismanagement and whistleblower retaliation, for criminal prosecution for lying to them. It’s not clear where that referral stands.

When it comes to Clinton, the Justice Department will respond to any referral and decide independently how many FBI resources should be invested in the case, said Hardin. But don’t count on any big decisions by Nov. 8.

The Clemens referral went to the Justice Department in February 2008, Hardin recalled, and the indictment didn’t come until August of 2010.

The fact that the Clinton case is politically charged isn’t likely to motivate investigators to pick up the pace, he added.

“For sure it won’t be made any time before this election,” Hardin said. “Professional prosecutors abhor having to make a decision on the schedule of an election.”

Ultimately, Clinton is likely to avoid charges for perjury for the same reasons she’s avoided them for mishandling her classified emails, Hardin said: it’s hard to prove intent.

Comey acknowledged under a line of questions from Rep. Trey Gowdy (R-S.C.) that Clinton told his Benghazi Committee things that weren’t true in October.

In one instance, Gowdy asked Comey whether Clinton's testimony that she did not email "any classified material to anyone on my email" and "there is no classified material" was true.

Comey responded, "No, there was classified material emailed."

He responded similarly to questions about her testimony that she had not sent any material specifically marked as classified (Comey said there were three documents), and that she had returned all her work-related documents to the government (Comey said they found “thousands” that she had not).

But being wrong doesn’t necessarily equal criminal perjury, Hardin said. Intent to mislead is key.

“A lie is intentionally stating something you know is not true,” Hardin said. “It’s not the same thing as being mistaken.”

Clinton can credibly make the case, for example, that of tens of thousands of emails, she did not remember the three that were marked classified when she testified.

And Clinton’s campaign is also arguing that some of Comey’s statements on Thursday about Clinton’s intent and about some confusing markings on classified documents vindicate the presumptive Democratic nominee.

“In his testimony today, Comey has reconciled most every apparent contradiction between his remarks Tuesday and Clinton's public statements,” Clinton spokesman Brian Fallon said on Twitter as the hearing was still going on.

Hardin, who also helped officials from the accounting firm Arthur Andersen when they were put through the Congressional wringer over their role in the Enron collapse, is generally critical of Congress’s use of its subpoena power.

“Congress has right to compel people to appear before them. They make them take an oath, then they sit there with a magic pen” that can draft a criminal referral, Hardin said. “The saving grace will be what just happened here: It’ll be referred to professionals.”

Nick Gass contributed to this report.

