Drawn to the Flame

by John Lawrence

When FBI Director Richard Comey and then Attorney General Loretta Lynch concluded there was no sound basis on which to prosecute Hillary Clinton over the email controversy, there was the expected sigh of relief from most Democrats. While I shared that sense with other Clinton supporters, my long experience on Capitol Hill told me it was unlikely to mark the end of the controversy, as many commentators predicted (and, no doubt, as the Clinton campaign mightily wished).

My concern was that House Republicans, frustrated by the unwillingness of the Justice Department to undertake a politically charged and unwinnable prosecution, would utilize procedural options within Congress’ purview to ensure that the controversy remain prominent throughout the remainder of the year, tainting the Democratic convention and dogging the Democratic nominee through Election Day. Unfortunately, but not surprisingly, my concerns proved well founded.

There is an old rule of politics, written in the Watergate era and revisited with annoying regularity, that the cover-up is invariably worse than the crime. In the case of the Clinton emails, the issue is less a cover-up than the accusation that if she did not break a law in the handling of her emails, then perhaps she did when she testified before Congress about how she handled her emails. With the criminal accusation disposed of, one might presume Congress would not drag the issue kicking and screaming back into the limelight; but one would be wrong. The chant of this political season is less “keep hope alive” than “keep controversy raging.”

As if on cue, Oversight Committee chairman Jason Chaffetz (R-UT) and Judiciary Committee chairman Bob Goodlatte (R-VA)  have asked the U.S. Attorney for the District of Columbia to investigate whether “evidence collected by the FBI during its investigation of Secretary Clinton’s use of a personal email system … directly contradict[s] several aspects of her sworn testimony” before the Select Committee on Benghazi.   Chaffetz and Goodlatte know the U.S. Attorney, Channing Phillips, will likely have to respond to their inquiry, thereby ensuring that the controversy endures, either because Phillips decides Clinton did commit perjury (highly unlikely since the standard requires a witness knowingly lied to Congress, which is hard to prove) or Phillips decides not to act, in which case Republicans will heap accusations on the U.S. Attorney for making a “politically motivated” decision. Either way, the Republicans live to issue another press release condemning Clinton, the Obama Administration, and the Justice Department.

Well, at least that would be the end of it. Actually, no. If the request to Phillips comes up dry (as it almost certainly will; prosecutors are loathe to delve into congressional antics), Republicans still have other options. Speaker Paul Ryan threw some red meat to the Right last week by suggesting his Members might “have to ask [FBI Director James] Comey to look at” whether Clinton had lied to the Benghazi panel.   “That’s something we should look at,” the Speaker mused. Of course, Comey would welcome such a request about as much as Phillips; his likely response, at least on the record, would be to suggest that if Congress was upset about Clinton’s behavior, it should utilize its own procedures rather than continually call upon the legal system to prosecute politically charged and hopeless cases.

And that is precisely what House Republicans might do, bringing a resolution to the floor declaring that Clinton perjured herself before the Benghazi Committee. Speaker Paul Ryan likely would not relish such a debate since he will certainly need Democrats to help pass the Continuing Resolution (CR) to avoid a government shutdown on October 1st.   It is a pretty safe bet that the Freedom Caucus Republicans will insist that the CR contain poison pill policy riders that cannot be enacted (e.g., the 978th repeal of the Affordable Care Act). Or, they might simply refuse to vote for must-pass spending laws because they object to the spending levels Congress and Obama agreed to last year. Either way, Ryan needs Democrats just as John Boehner did. A knock-down, drag-out bloodletting on the floor over a contempt of Congress resolution is unlikely to foster the sense of collaboration needed to craft a bipartisan CR, so Ryan will doubtless try to discourage his Right flank from insisting on such a move.

Unfortunately, such a motion is privileged, and a motion to table it – the only line of defense – would be very difficult to pass without inciting the Freedom Caucus. My expectation would be that few Republicans would dare vote against such a sanction in the heat of the political season in September, ensuring yet another round of headlines declaring that Clinton has been “found guilty” of some nefarious email crime although the standards of evidence and burden of proof on the floor of the House are somewhat less rigorous than in a court of law.

If this scenario has a certain familiar ring to it, it is because of the similarities to the Republican House’s decision to press an impeachment resolution against then-President Bill Clinton in 1998 despite widespread public (and legal) sentiment that doing so was unwise and motivated purely by political maneuvering. The obsession with impeachment damaged Republicans in the 1998 off-year election, allowing Democrats to pick up 5 seats despite its being the sixth year of a Democratic presidency. Shortly after the election, Gingrich was challenged for the Speakership and quit, having also been founded in violations of House ethics rules and fined hundreds of thousands of dollars.   After the Senate acquitted Clinton, most analysts concluded Republicans had damaged their standing by pursuit of so patently partisan a prosecution.

But the ability to wield pseudo-judicial power through resolutions accusing officeholders (or candidates) of wrongdoing is the flame to which congressional Republicans seem implacably drawn. If Comey won’t act, and Lynch won’t act, and Phillips won’t act, well, then, House Republicans are a-gonna pin on the sheriff’s badge an’ damn well enforce the law themselves. In fact, they have already begun the politicization of their prosecutorial powers by filing an impeachment resolution against IRS Commissioner John Koskinen for supposedly targeting conservative organizations. If they are going after Koskinen, can the Clinton resolution be far behind?

Republicans likely believe a privileged resolution that forces Members to vote on whether Clinton mislead the Benghazi Committee is a heads-we-win, tails-you-lose proposition. Once it passes, with solid Democratic opposition, Republicans can spend October trumpeting both the successful “prosecution” and the Democrats’ willingness to “overlook” Clinton’s alleged indiscretions. On both counts, they have extended the life of an issue that should wither in the August heat, assured a common theme with nominee Donald Trump for the fall, and created an issue for some Democrats whom they can hammer for having voted to exonerate Mrs. Clinton. If there is a downside, Republicans probably don’t see it, but then again, they didn’t see any dangers in going after Mr. Clinton’s evasiveness in 1998 either. Like Mr. Trump, they relish the notion of re-litigating that sorry chapter in presidential behavior this fall. It’s a bright flame for Republicans that they likely cannot help but fly towards.