Some lawmakers would like to see the Justice Department prosecute former spy chief James Clapper for inaccurate testimony to Congress about domestic surveillance before it's too late.
Privacy-conscious critics say looming five-year statutes of limitation for perjury and making false statements — establishing a March 12 deadline for charges — make an urgent case for action, and that nonprosecution would set a dangerous precedent that impedes oversight and executive-branch accountability.
Clapper, director of national intelligence from 2010 to 2017, testified during a March 2013 Senate Intelligence Committee hearing that the NSA was "not wittingly” collecting “any type of data at all” on millions of Americans. Months later, former NSA contractor Edward Snowden revealed secret court orders forced phone companies to turn over all U.S. call records on an “ongoing, daily basis.”
In an apology letter, Clapper wrote that he gave a “clearly erroneous” answer because he “simply didn’t think of” the call-record collection. But in an MSNBC interview he offered a different explanation, saying he gave 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.”
Lawmakers from both parties, but primarily Republicans supportive of new limits on surveillance, called for Clapper's prosecution during the Obama administration, without success. Several renewed their calls as the deadline nears.
"The time for the Department of Justice and the FBI to bring the accusations against James Clapper in front of a grand jury is long overdue,” said Rep. Ted Poe, R-Texas. “He and others who have held administrative power must be held accountable to the same laws that govern the people of the United States."
“Yes, he should be prosecuted," said Rep. Thomas Massie, R-Ky. "He admitted to lying to Congress and was unremorseful and flippant about it. The integrity of our federal government is at stake because his behavior sets the standard for the entire intelligence community. The same goes for James Comey, who secretly leaked documents that he was not legally permitted to release."
Rep. Louie Gohmert, R-Texas, meanwhile, said Clapper “should be prosecuted for any and all lies he told to Congress.”
Rep. James Sensenbrenner, R-Wis., who warned then-Attorney General Eric Holder that nonprosecution would make new limits on mass surveillance pointless because “officials are at liberty to lie about enforcing [the law]," also renewed his call for charges.
"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 to the Senate intelligence committee," said Sensenbrenner, lead sponsor of 2015 legislation that ended the call-record collection. "Political consideration should not affect the Department of Justice from pursuing this matter. That was true in 2013 when it happened and remains true today."
Katherine Hawkins, an investigator at the nonpartisan Project On Government Oversight, said Congress used to be better at seeking in a bipartisan manner prosecutions for perjury, particularly after the Watergate scandal in the 1970s. She said, over the years a large gap emerged between vigorously prosecution of lies to the FBI and those to Congress, something she blames on politics.
“It’s really unfortunate the extent to which there is systematic nonenforcement on the law for making false statements to Congress, and this is only one example,” Hawkins said. One reason for nonenforcement, she believes, is that “very often in high profile cases, it’s a senior member of one of the political parties who’s accused of saying something that’s not true.”
The phone-record program revealed by Snowden was unknown to many lawmakers not serving on intelligence committees or in senior leadership posts. Congress voted to end the automatic bulk collection with Sensenbrenner's USA Freedom Act after some federal courts ruled against its legality.
The NSA’s separate internet-collection programs, underpinned by Section 702 of the Foreign Intelligence Surveillance Act, also collect domestic records, but intelligence officials have struggled to quantify the number placed into databases that can be searched without a warrant. Executive branch officials argue that law is essential to preventing terrorism and the House of Representatives last week voted to renew Section 702 through 2023 without major changes. The legislation cleared a key procedural vote in the Senate Tuesday.
Evan Greer, a privacy activist with the group Fight for the Future, said Clapper’s testimony remains relevant to debate about surveillance policy.
"James Clapper lied to Congress, and to the American people, about U.S. government surveillance programs that allow agencies like the NSA and FBI to constantly monitor all of us without due process or any suspicion of wrongdoing,” she said. “Allowing the government to turn our computers and phones into spies that we take with us everywhere we go is detrimental to human rights and has a chilling effect on freedom of expression, but the worst part is that there is zero evidence that these programs have ever stopped a single violent attack.“
“What makes these mass government surveillance programs so dangerous is that they're allowed to operate without any meaningful accountability or oversight," Greer added. "The fact that James Clapper is free to go about his life while Edward Snowden is still exiled is a travesty of justice."
Although lying to Congress is rarely prosecuted, 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 whistleblowers seeking to lawfully come forward, scoffed at the idea of Clapper standing trial.
“I can't fathom he would ever be prosecuted. And I honestly don't think it's so black or white as to a conviction. It's more complicated than people see," he said.
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. [Democratic Oregon Sen. Ron] Wyden essentially trapped him intentionally.”
A spokesman for Clapper did not immediately respond to a request for comment.
Since retiring last year, Clapper has taken a leading role criticizing President Trump on television.
Clapper 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 last month, 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 August, Trump lashed out on Twitter after 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 responded: “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 through an aide that the letter was short and not so beautiful.
The Justice Department declined to comment on whether it is weighing charges against Clapper. The department’s leader, Attorney General Jeff Sessions, was criticized by Trump last year for being “VERY weak” on Hillary Clinton and leakers, but the denunciations and promised action resulted in no additional leak charges and it’s unclear if pressure would result in a case against Clapper. Sessions also faces accusations of giving Congress misleading testimony, regarding his contact with Russia’s former ambassador.
Wyden, the lawmaker to whom Clapper gave the inaccurate answer, could not be reached for comment on whether the former national intelligence director should stand trial. But Wyden long has insisted that the mistruth was no innocent mistake. He said the question was provided beforehand, and that he asked Clapper to correct the record, in vain, afterward.
Wyden said in a recent interview that “Clapper’s lie about mass surveillance was so damaging to public trust in government” and that “Clapper said he made an error, but that’s not how I see it. He didn’t just lie to me, he lied to the American people.” Wyden told the Cipher Brief that “when politicians argue in bad faith about what laws do, it makes it easier for skeptics to dismiss everyone in Congress, in politics, as a liar. It makes it possible, even probable, for hucksters and authoritarians to take power."