If Republican lawmakers really want to read Hillary Clinton’s missing emails, they have a long way to go to get their hands on them.
Congressional power only goes so far. The Republican-controlled House of Representatives could vote to sue the former secretary of state to force her to turn over the emails or her computer server. But legal experts say that could take years, well after the 2016 presidential race is over. And the other options – throwing her in a Capitol jail cell or getting the Justice Department to prosecute her – appear unlikely.
“Their ability to get things enforced is virtually zero,” said Stanley Brand, a Washington lawyer who served as general counsel to the House. “They don’t have any attractive options.”
The House Select Committee on Benghazi subpoenaed the emails while asking that Clinton voluntarily turn over her personal email server to a “neutral, detached and independent” third party. Clinton’s attorney told the committee she gave work emails to the State Department, then permanently deleted all emails from the server and refused to turn over the server to Congress.
Rep. Trey Gowdy, R-S.C., said recently that the committee can’t subpoena the server, but that most experts believe the full House could. The decision on how to proceed, he said, is up to House Speaker John Boehner, R-Ohio.
“We asked that that server be turned over to the inspector general, a neutral detached independent third party,” Gowdy told Fox News. “And they rejected that offer. So, whether or not the speaker is going to decide to amp up that request will be up to him.”
The resolution that created the committee in May 2014 says the panel can authorize and issue subpoenas, including “the production of such books, records, correspondence, memoranda, papers and documents as it considers necessary.” But it may not have the power to subpoena items, including a computer server.
Boehner’s office declined to comment for this story but told others last week he was considering whether to subpoena the server.
If Clinton still doesn’t turn over the emails or the server, legal experts say the House has few options beyond suing her.
That’s what it did in two recent cases.
The Democratic-controlled House voted to hold Harriet Miers, counsel to President George W. Bush, in contempt in 2008 after she failed to appear and produce documents relating to the firings of nine federal prosecutors. The case was eventually settled, with Miers agreeing to testify in transcribed interviews under the penalty of perjury but without the public present while lawmakers received long sought-after documents.
The Republican-controlled House voted to hold Attorney General Eric Holder in contempt in 2012 over his failure to respond to a subpoena for documents relating to the Justice Department’s response to the botched Fast and Furious gunrunning operation. That case is still pending.
Charles Tiefer, a professor at the University of Baltimore School of Law who served as solicitor and deputy general counsel of the House, said a lawsuit involving Clinton would be complicated by the fact that the committee never actually subpoenaed the server.
“It wasn’t a meaningful subpoena,” he said. “There’s no precedent in history for a subpoena to tell someone to turn something over to a third party.”
The only other options the House has available: Order the sergeant at arms to arrest Clinton and put her in the Capitol jail, an action that hasn’t been used in more than a century, or ask the U.S. attorney to prosecute her, though federal prosecutors have often declined to pursue such cases.
In recent weeks, a federal prosecutor declined to charge former Internal Revenue Service official Lois Lerner on contempt after determining she did not do anything wrong when she refused to testify about the IRS possibly targeting of conservative nonprofit groups.
Democratic lawmakers have blasted all the requests as partisan attacks. The committee’s investigation, they say, is on track to last longer than inquiries of Iran-Contra, the John F. Kennedy assassination, Watergate or the Sept. 11, 2001, terrorist attacks.
“Unfortunately, it appears that the Select Committee on Benghazi has now become a taxpayer-funded effort to damage Hillary Clinton’s campaign for president,” said Rep. Elijah Cummings of Maryland, the top Democrat on the committee.
After Clinton declined to turn over anything further to the committee, the panel formally asked her to appear before lawmakers for a private interview by May 1. Her office said she would appear before them publicly.
“Secretary Clinton already told the committee months ago that she was ready to appear at a public hearing,” spokesman Nick Merrill said. “It is by their choice that hasn’t happened. To be clear, she remains ready to appear at a hearing open to the American public.”
Gowdy last week asked her to appear for two public hearings instead of a private one. He plans to schedule the first hearing the week of May 18.