Lock Him Up? Lawmakers Renew Calls for James Clapper Perjury Charges

Some lawmakers reacted to the long-expected resignation announcement from Director of National Intelligence James Clapper on Thursday by wishing him an eventful retirement, featuring prosecution and possible prison time.

The passage of more than three years hasn’t cooled the insistence in certain quarters that Clapper face charges for an admittedly false statement to Congress in March 2013, when he responded, “No, sir" and "not wittingly” to a question about whether the National Security Agency was collecting “any type of data at all” on millions of Americans.

About three months after making that claim, documents leaked by former NSA contractor Edward Snowden revealed the answer was untruthful and that the NSA was in fact collecting in bulk domestic call records, along with various internet communications.

To his critics, Clapper lied under oath, a crime that threatens effective oversight of the executive branch. In an apology letter to lawmakers, however, Clapper said he gave the “clearly erroneous” answer because he “simply didn’t think of” the call-record collection.

Clapper later told MSNBC he considered the question akin to asking, “When did you stop beating your wife?” and so gave the “least untruthful” answer.

Sen. Ron Wyden, D-Ore., who asked the question, rehashed the controversy in a statement Thursday, saying Clapper had presided over a “deception spree regarding mass surveillance” and that Clapper's office had been given the question in advance and then was asked, without success, to correct the record after the hearing.

“Regardless of what was going through the director’s head when he testified, failing to correct the record was a deliberate decision to lie to the American people about what their government was doing,” Wyden said.

No charges were filed against Clapper, but his critics say the incoming administration of President-elect Donald Trump could change that. Trump frequently railed against a “rigged system” on the campaign trail, alleging powerful people such as Hillary Clinton, his Democratic rival, avoid criminal charges thanks to a corrupt legal system.

"No one is above the law. Officials who commit perjury or lie to Congress should be held accountable,” Texas Republican Rep. Blake Farenthold tells U.S. News by email.

"Given the implications, a cursory examination of the facts to date under a less biased DOJ is in order,” says Arizona Republican Rep. Trent Franks. "I will withhold my judgment contingent on those findings."

Rep. Justin Amash, R-Mich., took to Twitter to resurface his recommendations from years ago that Clapper be prosecuted. A spokeswoman for Amash said the tweets speak for themselves, declining further comment.

Two sections of law under which Clapper theoretically could face charges for perjury or making false statement come with five-year statutes of limitation. The charges carry the possibility of prison sentences.

Although surveillance reform in Congress generally has broken into two camps, with privacy-minded reforms pushed by a coalition of conservative and libertarian Republicans and progressive Democrats, even stalwarts of the status quo initially reacted with surprise to Clapper’s 2013 statement.

Former Senate intelligence committee Chairwoman Sen. Dianne Feinstein, D-Calif., told the New Yorker, “I was startled by the answer,” though she also defended Clapper, saying he could have misunderstood the question, which could let him off the hook.

Clapper’s unpunished untruth has attracted routine jabs. Sen. Rand Paul, R-Ky., suggested Clapper share a cell with Snowden. More seriously, Rep. James Sensenbrenner, R-Wis., struggled to push the Justice Department to action, noting officials were convicted of lying to Congress about the Iran-Contra and Jack Abramoff lobbying scandals.

Charges for lying to Congress were brought against baseball star Roger Clemens for his testimony about performance-enhancing drugs. A jury acquitted Clemens in 2012.

It’s unclear whether a Trump Justice Department would have an appetite to go after Clapper. Although he railed against unfairness benefiting powerful people, campaign-trail Trump also routinely criticized the case against former CIA Director David Petraeus for mishandling secrets, saying his life had been ruined – though, in fact, he agreed to a plea deal featuring probation. Clapper similarly has a long military career.

Outgoing Rep. Alan Grayson, a Florida Democrat, says by email that Clapper could have sidestepped Wyden’s question but chose not to do so and further faults him for not issuing a prompt correction.

“This lie was particularly egregious because the answer actually affected the lives of every American,” Grayson says. “Clapper’s subsequent attempts at rationalization are no different from what Richard Nixon said: ‘When the President does it, that means that it is not illegal.’ If we want to call ourselves a nation of laws, then it is important that Clapper be prosecuted, and convicted.”

Spokespeople for Clapper’s office and the Justice Department did not respond to requests for comment.

Larry Klayman, the conservative legal activist who won the first federal court ruling against the legality of the now-discontinued call record dragnet, says he doubts the Trump administration would prosecute the former intelligence chief, offering what skeptics might call a conspiratorial view of government surveillance efforts.

“Clapper knows a lot about people that could start leaking out the door,” he says. “I don’t think they will because he had access to a lot of information.”