Attorney General Loretta Lynch suggested Wednesday that the Justice Department would not be obligated to pursue charges against Hillary Clinton for her email infractions even if the FBI recommends criminal charges.
Sen. John Cornyn (R-TX) brought up the topic during a Senate Judiciary Committee hearing on Wednesday:
“If the FBI were to make a referral to the Department of Justice to pursue a case by way of indictment and to convene a grand jury for that purpose, the Department of Justice is not required by law to do so, are they — are you?” Cornyn asked.
Lynch didn’t answer directly, but seemed to indicate the department has some wiggle room, and can consult with officials before deciding what to do.
“It would not be an operation of law, it would be an operation of procedures,” Lynch said in reply. She added that the decision to pursue a criminal case would be “done in conjunction with the agents” involved in the investigation. “It’s not something that we would want to cut them out of the process.”
Lynch declined to answer Cornyn’s questions about the decision to grant immunity to Bryan Pagliano, the former Clinton aide who set up the private “homebrew” server at her home in Chappaqua, NY. Asked Cornyn:
If in fact this was immunity granted by a court, that had to be done under the auspices and with the approval of the Department of Justice, which you head.
We don’t discuss the specifics of any ongoing investigation. With respect to the procedure relating to any specific witness, I would not be able to comment. … With respect to Mr. Pagliano or anyone who has been identified as a potential witness in any case, I’m not able to comment on the specifics.
Later, Senator Lindsey Graham (R-SC) asked Lynch about comments made by White House Press Secretary Josh Earnest in January that downplayed the FBI investigation. Earnest had told reporters that “some officials” had said she was “not the target of the investigation,” and that an indictment did not seem to be the direction in which the case was trending:
“So when Josh Earnest speaks about the investigation and talks about, basically, to reassure the American people that this is no big deal, do you know where he gets that information from?” Graham asked.
“Senator, I do not,” Lynch said.
“Would you tell him that he should just stay silent?” Graham pressed.
“Certainly it’s my hope when it comes to ongoing investigations that we would all stay silent,” Lynch responded.
In January, Fox News’ chief intelligence correspondent Catherine Herridge reported that her sources in the DOJ and FBI were “super pissed off” about Earnest’s comments.