Director of National Intelligence James Clapper

An increasing number of Republicans in Congress support holding Director for National Intelligence James Clapper accountable for lying to Congress in March, when he was asked about spying on Americans.

Members of the House Judiciary Committee, including Rep. Jim Sensenbrenner, who is the co-sponsor of legislation that would rein in some of the National Security Agency’s powers, urged Attorney General Eric Holder to have the Justice Department investigate Clapper.

“Director Clapper’s willful lie under oath fuels the unhealthy cynicism and distrust that citizens feel toward their government and undermines Congress’s ability to perform its Constitutional function,” the members wrote in a letter. “There can be no disagreement, however, on the basic premise that congressional witnesses must answer truthfully.”

Sen. Rand Paul also stated on CNN that Clapper’s lying was “probably more injurious” to US intelligence capabilities “than anything Snowden did because Clapper has damaged the credibility of the entire intelligence apparatus.” He suggested Clapper’s statements “amounted to perjury” and called for his resignation.

There are no Democrats in Congress, as far as I know, who have stepped forward to call for accountability. This highlights the reality that in government, holding officials responsible for their misconduct or illegal behavior, is entirely political.

Democrats will not support investigating him because President Barack Obama stands behind him. Republicans will support investigating him because it is convenient for them. Americans are outraged at what has been revealed on the NSA collecting Americans’ data, and it just so happens Obama is not a Republican (at least in terms of declared party affiliation).

On March 12, Clapper testified in an open congressional hearing. It was months before stories with documents from former NSA contractor Edward Snowden were published.

SEN. RON WYDEN (D), OREGON: So what I wanted to see is, if you can give me a yes or no answer to the question, does the NSA collect any type of data at all on millions or hundreds of millions of Americans?

JAMES CLAPPER, DNI: No, sir.

WYDEN: It does not?

CLAPPER: Not wittingly. There are cases where they could inadvertently, perhaps, collect, but not wittingly.

Snowden’s disclosures came and it was clear that the NSA does collect data on millions or hundreds of millions of Americans. Clapper said, “I was asked, when are you going to stop beating your wife kind of question, which is — meaning, not answerable necessarily by a simple yes or no. So I responded in what I thought was the most truthful or least untruthful manner by saying, no.”

Wyden sent his question to Clapper so he could prepare an answer. If the answer was top secret, he could have said that he was not going to disclose classified information. Plus, saying “no” and “not wittingly” could be construed as classified information.

It was clear he was lying during the hearing. Video of his answer shows him scratching his said. As Wyden said, “I think in poker that`s called tell. If you just watched that, and thought that Clapper was thinking extra hard on that answer, well, it`s actually quite straining to come up with the least untruthful answer to a question you don`t feel like answering truthfully.”

Wyden was upset that he did not get an honest answer, but he was not willing to urge him to resign. He definitely did not invite the Justice Department to investigate Clapper.

Democratic Senator Dianne Feinstein, chair of the Senate Select Committee on Intelligence, received a letter of apology from Clapper. It didn’t suggest he gave the “least untruthful” answer and was sorry, but that he forgot about a provision of the PATRIOT Act called Section 215 that the US intelligence community believes permits the indiscriminate collection of Americans’ personal data.

Feinstein did not get angry and call for Clapper’s prosecution, even though her job as chair depends on officials giving the intelligence committee honest answers. She suggested, “You can misunderstand the question.” (But, it was a clear and direct question so basically Clapper is either incompetent or a liar.)

In June, when Rep. Keith Ellison appeared on MSNBC, he said, “I have reason to doubt that we`ve been getting honest answers based on some of the testimony I saw from the — from Mr. Clapper.” Nothing about holding Clapper accountable.

There are no Democrats taking a stand when there are legal grounds to, at minimum, press for Clapper to resign.

The letter sent to Holder states:

…18 USC § 1001 makes it a crime to “knowingly and willfully” make any “materially false” statements in the course of any “investigation or review, conducted pursuant to the authority of any committee.” One of the hallmarks of American democracy is that no one is above the law. In 1990, National Security Advisor John Poindexter was charged and convicted under 18 USC § 1001 for lying to Congress about the Iran-Contra affair. In 2011, the DC Circuit upheld the conviction of David Safavian for false statements to the Senate Indian Affairs Committee while he was Chief of Staff of the General Services Administration administrator. Vice President Cheney’s Chief of Staff Scooter Libby was convicted under 18 USC § 1001. Martha Stewart was jailed under the same statute…

From warrantless wiretapping to torture to financial fraud on Wall Street, it is obviously not true that in America no one is above the law. In fact, it is more true that there are numerous cases where certain people are required to adhere to the law more than others. However, the Republicans are right that Clapper violated this statute and should be held accountable.

Republicans pushing for Clapper to be prosecuted include some who cried foul about Benghazi and the IRS and over-exaggerated or tried to manufacture scandal. Shamefully, Democrats will cast this effort against Clapper as another vindictive push to score political points. Or, for those Democrats who are sympathetic, they will maintain we need to focus on the bigger issues and not do something divisive like go after officials who lie to Congress.

Assuming liberals or progressives even think Clapper did something wrong, they are likely to fixate more on the hypocrisy of Republicans than the fact that there should be Democrats in Congress joining together to hold Clapper accountable. These partisan politics make it easier for government officials to enjoy impunity and escape justice, particularly when they actually do engage in clear and provable misconduct.