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Former DNI Clapper accused of 'inconsistent testimony' about media contacts

Former National Intelligence Director James Clapper listens as former acting Attorney General Sally Yates testifies on Capitol Hill in Washington, Monday, May 8, 2017, before the Senate Judiciary subcommittee on Crime and Terrorism hearing: "Russian Interference in the 2016 United States Election."(AP Photo/Carolyn Kaster)
Former National Intelligence Director James Clapper listens as former acting Attorney General Sally Yates testifies on Capitol Hill in Washington, Monday, May 8, 2017, before the Senate Judiciary subcommittee on Crime and Terrorism hearing: "Russian Interference in the 2016 United States Election."(AP Photo/Carolyn Kaster)
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Allegations from the House Intelligence Committee that former Director of National Intelligence and current CNN analyst James Clapper made “inconsistent” statements during the committee’s investigation of Russian interference in the 2016 election have revived long-standing Republican doubts about Clapper’s credibility, but a legal expert said it would be challenging to prove he lied to lawmakers.

The committee voted on a party-line basis Thursday to release a GOP-authored report on the probe once it is redacted for classified information, and Republicans released a final copy of their findings and recommendations. Ranking Democrat Rep. Adam Schiff, D-Calif., dismissed the report as “fundamentally unserious” and said the minority is preparing its own report.

President Donald Trump celebrated the Republican findings on Twitter early Friday, highlighting three of the report’s conclusions: “(1) No evidence provided of Collusion between Trump Campaign & Russia. (2) The Obama Administrations Post election response was insufficient. (3) Clapper provided inconsistent testimony on media contacts.”

It was the last of the GOP’s 44 findings that had caught Trump’s attention.

“Former Director of National Intelligence James Clapper, now a CNN national security analyst, provided inconsistent testimony to the Committee about his contacts with the media, including CNN,” the document stated.

It could take weeks for the intelligence community to complete a declassification review of the majority report, and many questions will likely remain unanswered until the full document is made public.

"You will hear more about inconsistencies that may have taken place. When someone says one thing one day and another thing another day, I think the American people need to know about that and we need to have concerns,” committee member Rep. Brad Wenstrup, R-Ohio, told Fox News Friday, declining to provide more details.

Rep. Jim Jordan, R-Ohio, went much further, alleging that Clapper leaked details of a January 2017 meeting where then-FBI Director James Comey briefed Trump on details of a dossier of raw intelligence gathered in 2016 by a former British spy working for a research firm that was being paid by Democratic nominee Hillary Clinton’s campaign.

“Specifically leaking information I believe, from that January 6th meeting where they briefed President Trump, then President-elect Trump on the dossier,” Jordan, who is not a member of the intelligence committee, said in a Fox News interview. “Someone at CNN got information. We think it was Mr. Clapper who gave it to them.”

After CNN reported on the briefing, BuzzFeed published the 35-page dossier. Republicans have suggested that the existence of the meeting was leaked in order to get the press to report the dossier’s claims, which Comey later publicly described as “unverified and salacious.”

At the time, Trump said Clapper had called him to denounce the leak.

“James Clapper called me yesterday to denounce the false and fictitious report that was illegally circulated. Made up, phony facts.Too bad!” he tweeted on January 12, 2017.

The dossier, compiled by former intelligence officer Christopher Steele, was one piece of evidence cited in an application for a FISA surveillance order on former Trump foreign policy adviser Carter Page and three renewals of that order. Republicans argue the DOJ failed to inform federal judges of Steele’s political ties, but Democrats claim his employer was sufficiently disclosed in footnotes.

Steele cited sources alleging that Page met with two Russians with Kremlin ties during a summer 2016 visit to Moscow and discussed easing sanctions if Trump was elected. Page has denied those meetings.

The GOP findings assert that Page’s July 2016 trip to Moscow was not undertaken on behalf of the Trump campaign. However, the document also states that “the Committee is concerned about his seemingly incomplete accounts of his activity in Moscow.”

A memo released by Democrats on the committee last month alleged that certain information obtained by the DOJ about Page’s meetings in Moscow contradicted his testimony, but much of that paragraph was redacted.

Clapper and Page have both consistently denied any wrongdoing, though they have not yet responded directly to the release of the Republicans’ final findings Thursday.

Clapper rejected the premise that he leaked information about the dossier meeting in a CNN interview last week.

“It’s a little nonsensical to me,” he told Don Lemon, insisting he first discussed that briefing with the press weeks after Trump himself ranted about the dossier at a January 11, 2017 news conference.

“I didn’t have any contact with media until after I left the government on January 20,” Clapper said. “I talked about it after I left the government, but not during that period.”

Though his testimony before the House Intelligence Committee remains secret, Clapper did publicly deny being a source for media leaks under oath at a Senate Judiciary Committee hearing last year.

“I’ve long maintained during my 50-plus year career in intelligence that leaks endanger national security; they compromise sources, methods, and tradecraft; and they can put assets’ lives at risk,” he said in his initial statement to the committee. “And, for the record, in my long career, I’ve never knowingly exposed classified information in an inappropriate manner.”

Responding to questions from Chairman Chuck Grassley, R-Iowa, Clapper specifically denied being an anonymous source or authorizing anyone else to be an anonymous source for any news report relating to Trump, his associates, or Russian interference in the election.

Asked by Sen. John Kennedy, R-La., whether he ever leaked “classified or unclassified” information to the media, Clapper replied, “Not wittingly or knowingly.” He acknowledged that he may have spoken to reporters on background during his career but never about classified information.

In a written response to follow-up questions from Grassley, he clarified that providing background with authorization is different from being an anonymous source, but he added that he also never spoke to reporters on background about Trump, his associates, or Russian interference.

Prosecution for perjury is difficult, and prosecution for lying to Congress is rare.

In a 2007 Quinnipiac Law Review article, attorney P.J Meitl calculated there had only been six cases in the previous sixty years where someone was convicted and incarcerated for lying to Congress.

In 2012, pitcher Roger Clemens was acquitted on six counts of lying during 2008 testimony before Congress about use of performance-enhancing drugs in a case former federal prosecutor Seth Waxman said illustrates how hard it can be to secure a conviction.

“You have to prove an intentional material misrepresentation of fact,” said Waxman, now a defense attorney.

Prosecutors must prove a defendant knowingly made a false statement about a material fact, and they typically need more than just another witness’ word to impeach the statement.

“They don’t want to convict someone on ‘he said, he said’ or ‘he said, she said’ issues,” Waxman said.

Absent an admission of lying from the defendant, prosecutors must rely on circumstantial evidence to convince a jury that they knew what they were saying was untrue. Ambiguous and noncommittal answers are especially tricky.

“‘I don’t remembers,’ ‘I don’t recalls’ are tough,” he said.

Clapper’s use of phrases like “not wittingly or knowingly” could give him a defense if he is accused of lying about providing information to reporters if he used similar language when testifying before the House Intelligence Committee.

“He’s leaving wide open the notion that if it happened it could have been a mistake,” Waxman said. “That gives him big wiggle room for perjury charges.”

Another problem in prosecution for lying to Congress is that lawmakers often fail to craft questions clearly enough to pin a witness down. In Clapper’s case, uncertainty about what is considered a “leak” or whether a question was referring to classified or unclassified information could provide an out.

“That’s a good example of [how] you really have to focus on the question,” Waxman said.

For Clapper, the latest allegations came just ten days after the statute of limitations expired on the last time he was accused of lying to a congressional committee.

On March 12, 2013, Clapper told the Senate Intelligence Committee that the National Security Agency did not “wittingly” collect data on millions of Americans.

“There are cases where they could inadvertently perhaps collect, but not wittingly,” he maintained when pressed by Sen. Ron Wyden, D-Ore.

Months later, documents leaked by former NSA contractor Edward Snowden revealed the agency collected bulk domestic phone records and internet communications from millions of people. Wyden accused Clapper of “a deception spree regarding mass surveillance.”

In a letter to then-Intelligence Committee Chair Dianne Feinstein in June 2013, Clapper acknowledged his response to Wyden was “clearly erroneous.”

“I simply didn’t think of Section 215 of the Patriot Act,” he wrote. “Instead, my answer addressed collection of the content of communications.”

Clapper said his staff had corrected the error with Wyden’s office soon after the hearing, but he could only address the mistake publicly after the metadata collection program was declassified.

In a later MSNBC interview, Clapper described his response during the hearing as “the least untruthful” answer he could give under the circumstances and admitted it was “too cute by half,” suggesting semantic differences in his and Wyden’s understanding of “collection.”

Members of both parties were dissatisfied with his explanations, and some repeatedly demanded that he be prosecuted. The issue resurfaced when Clapper retired last year and again earlier this month when the five-year statute of limitations on prosecution for perjury passed.

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"He admitted to lying to Congress and was unremorseful and flippant about it,” Rep. Thomas Massie, R-Ky., recently told the Washington Examiner, referring to the 2013 testimony. “The integrity of our federal government is at stake because his behavior sets the standard for the entire intelligence community.”

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