President Donald Trump claimed that Hillary Clinton “lied many times to the FBI and nothing happened to her.” In fact, the FBI director told Congress that there was “no basis to conclude she lied to the FBI.”
Trump also left the false impression that the FBI deviated from its standard practice by not putting Clinton under oath when she was interviewed last year about her email use while secretary of state. He claimed it was “the most incredible thing anyone has ever seen.” It’s not incredible or even unusual.
FBI policy does not require its agents to conduct interviews under oath, and it doesn’t matter, anyway, because it is a crime to lie to the FBI regardless of whether an oath is taken.
The president made his remarks before departing for Utah, where he announced that he would reduce the size of the state’s Bears Ears National Monument and the Grand Staircase-Escalante National Monument. As he prepared to board Marine One, a reporter asked Trump when he learned that his former national security adviser, Michael Flynn, had lied to the FBI.
Flynn pleaded guilty on Dec. 1 of making false statements to the FBI during its ongoing investigation into Russia’s efforts to influence the 2016 presidential campaign and whether there was any coordination between the Trump campaign and Russia. The president didn’t answer the question; instead he said the FBI was “very unfair” to Flynn and “destroyed his life.”
Trump, Dec. 4: I will say this: Hillary Clinton lied many times to the FBI and nothing happened to her. Flynn lied and they destroyed his life. I think it’s a shame.
Hillary Clinton, on the Fourth of July weekend, went to the FBI, not under oath — it was the most incredible thing anyone has ever seen. She lied many times. Nothing happened to her. Flynn lied, and it’s like they ruined his life. It’s very unfair.
Trump is referring to the FBI’s three-hour-plus interview with Clinton on July 2, 2016, near the end of the agency’s investigation into whether she or her staff mishandled classified information. The investigation stemmed from Clinton’s decision to exclusively use a private email account and personal server when conducting official government business.
Three days after the FBI interviewed Clinton, then-FBI Director James Comey announced that he would not recommend filing charges against Clinton. He said that she and her staff were “extremely careless” in handling classified information, but the FBI did not find evidence that their actions were intentional.
The FBI also did not find that Clinton lied to the FBI, contrary to Trump’s claim.
After announcing the outcome of the FBI investigation, Comey testified on July 7, 2016, before the House oversight committee about his decision not to recommend pressing charges. Chairman Jason Chaffetz specifically asked Comey if Clinton lied.
Chaffetz, July 7, 2016: Did Hillary Clinton lie?
Comey: To the FBI? We have no basis to conclude she lied to the FBI.
Chaffetz: Did she lie to the public?
Comey: That’s a question I’m not qualified to answer. I can speak about what she said to the FBI.
Republicans have long maintained that Clinton “lied” to the public about her email use. And we have certainly written numerous stories about how Clinton provided the public with false and misleading information about her email use.
But it’s not a crime to give false information to the public. It is a crime, however, to intentionally provide false information to federal agents during a criminal investigation — and, contrary to what Trump said, it is a crime whether the subject is under oath or not.
At the same House oversight hearing, Republican Rep. John Mica asked Comey whether the FBI interviewed Clinton under oath, and Comey said it doesn’t matter.
Mica: Did she testify or talk to them under oath?
Mica: She did not. Well, that’s a problem, but —
Comey: No, it’s still a crime to lie to us.
Mica: I know it is. Do you have a transcript of that?
Comey: Well no, we don’t record our [interviews].
Three former FBI agents told us that the agency does not conduct interviews under oath.
“I’ve never seen an agent put someone under oath — that’s just not how it operates,” said Michael J. Clark, a special agent for 22 years who now teaches criminal justice at the University of New Haven.
Luke William Hunt, a former FBI agent who teaches criminal justice at Radford University, referred us to the FBI’s Domestic Investigations and Operations Guide, a 258-page manual that details the agency’s intelligence-gathering rules. It makes no reference to placing witnesses, subjects or targets of investigations under oath.
In an email, Hunt told us that “FBI interviews (which ‘may become the subject of court testimony’) are recorded on the ‘FD-302’ form. This simply contains a ‘record of statements made by the interviewee.'”
That’s what happened in Clinton’s case. On Sept. 2, 2016, the FBI released a summary of Clinton’s statements to the FBI.
In a phone interview, Hunt told us he did not experience any instances of FBI agents placing someone under oath during an interview in his seven years at the agency. Stuart N. Kaplan, a former FBI agent for nearly 11 years who is now a lawyer in private practice, separately told us the same thing.
“When conducting interviews subjects/targets and or witnesses are NOT put under oath,” Kaplan said in an email. “As long as an FBI agent properly identifies him or herself and it’s in the official capacity of his job lying to that agent under 18 USC 1001 is a crime.”
Kaplan emphasized that the false statements “must be intentional or intentionally misleading” for the subject to be charged with a crime. Clark noted that the false statement must be “material” to the investigation.
That’s what happened in Flynn’s case, and he now faces up to six months in prison.
As for Clinton, the FBI had “no basis to conclude she lied to the FBI,” as Comey said. But, under the law, if she “knowingly and willfully” made false statements to conceal “a material fact,” then she could have been charged with a crime whether she was under oath or not.