Wednesday's testimony on the Benghazi terror attacks by State Department whistleblowers before the House Committee on Oversight and Government Reform contradicted several statements by then-Secretary of State Hillary Clinton in testimony before House and Senate committees in January.
However, while Clinton may have misled Congress in her testimony, she likely did not commit perjury because she never actually testified under oath.
Video recordings of Clinton's Jan. 23 testimony before the House Committee on Foreign Affairs and the Senate Foreign Relations Committee suggest that she was never sworn in. Breitbart News subsequently confirmed with staff on both committees that she did not take an oath to tell "the truth, the whole truth, and nothing but the truth," as the three witnesses, all career civil servants, did Wednesday before the House Oversight Committee.
A Senate aide confirmed to Breitbart News Thursday: "We checked with the committee and she wasn’t sworn in." A House aide indicated that Clinton had not been sworn in, but added that "all witnesses testifying before the House Foreign Affairs Committee, including Secretary Clinton, are under a legal obligation to tell the truth. Any misrepresentation to the Committee in the context of a review or investigation is a violation of law."
Perjury and lying to Congress are two different crimes. Perjury, defined under 18 U.S.C. § 1621, requires violation of an oath. The crime of making a false statement to Congress, defined under 18 U.S.C. § 1001, covers lying about or concealing a "a material fact" in "any investigation or review, conducted pursuant to the authority of any committee, subcommittee, commission or office of the Congress, consistent with applicable rules of the House or Senate."
The difference is subtle but significant. A witness testifying under oath is under a greater obligation to tell the truth right down to what he or she believes it to be. A witness merely testifying to a committee of Congress without taking an oath may not subjectively believe what he or she is saying but will probably escape punishment, so long as he or she does not "knowingly and willfully" misrepresent or cover up a material fact.
In 2004, the 9/11 Commission insisted on hearing testimony from then-National Security Advisor Condoleeza Rice under oath, even after she had already spoken to the panel in a private interview, because of concerns about inconsistencies between her statements and those made by other witnesses. The White House initially resisted, then relented, and on Apr. 8, 2004, she took the oath and testified before the Commission.
In the Benghazi hearings, Clinton merely offered ordinary testimony while lower-ranking State Department personnel, including witnesses at the Oct. 10, 2012 hearing before the House Oversight Committee, all testified under oath. (Then-Secretary of Defense Leon Panetta and Joint Chiefs of Staff Chair General John Dempsey also appear to have testified about Benghazi before Congress in February without doing so under oath.)
The differential treatment partly reflects the traditional deference shown by the legislature to presidential appointees, but also reflects a phenomenon referred to by the witnesses on Wednesday, who noted that the key decisions had been made by "presidentially-appointed, Senate-confirmed" officials, yet those disciplined thus far had been career civil servants. The message, they said, was that "if you're above a certain level" you will not be held accountable.
Secretary of State Clinton made at least three statements that have been contradicted by subsequent testimony. First, she told the House Foreign Affairs Committee that "we didn't have a clear picture" of what had happened in Benghazi. Yet Greg Hicks, who had been second in command at the U.S. mission in Libya, testified Wednesday that he spoke to Clinton on the night of Sep. 11-12 and told her exactly what had happened.
Second, Clinton told the Senate: "So I saw firsthand what Ambassador Pickering and former Chairman Mullen called timely and exceptional coordination: no delays in decision-making, no denials of support from Washington or from our military." Yet testimony on Wednesday revealed that help was denied twice--once when support from the State Department's Foreign Emergency Support Team (FEST) was denied, and once when Lt. Col. Gibson was told to stand down.
Third, Clinton told the Senate that she had not seen diplomatic cables from Libya requesting more security: "I didn't see those requests. They didn't come to me. I didn't approve them. I didn't deny them." Yet Gen. Dempsey appeared to cast some doubt on Clinton's testimony when he told the Senate in February that it seemed unlikely she had not seen the cables: “I would call myself surprised that she didn’t.”
Given these contradictions, it appears that Clinton misled Congress. But she did not do so under oath, and it would be difficult to prove her guilty of "knowingly and willfully" concealing material facts when she was reporting her memories and impressions of a volatile situation.
The only way to find out the truth is to recall Clinton--as Rice was once recalled--to testify under oath about what happened on Sep. 11, 2012 and in the days that followed.