WASHINGTON — The director of the Federal Bureau of Investigation said former Secretary of State Hillary Clinton was likely not “sophisticated” enough to understand confidential markings on a few of her emails that contained classified information.
Director James Comey testified today before the House Oversight and Government Reform Committee that there’s “no way someone bringing a case against John Doe” or Clinton based on the facts uncovered by the bureau’s investigation would recommend the case for prosecution.
“It’s a good thing that the Justice Department worries about prosecuting people for being careless,” he noted.
Rep. Will Hurd (R-Texas), a former CIA operations officer, ripped Comey for the potential effects of compromised national security by Clinton passing classified information on her server and railed at Dems for not taking the hearing more seriously. Hurd grilled the director about what was protecting the server in the Clintons’ basement.
“Not much,” Comey replied.
“And that’s not a crime? That’s outrageous,” Hurd said. “People are concerned. What does it take?”
“It takes mishandling it and criminal intent,” Comey said, noting as he did in his Tuesday press conference “there is evidence of mishandling here.”
Comey said the team of agents, investigators and analysts delving into Clinton’s emails came to a unanimous decision that it was not a prosecutable case.
“My primary concern is the impact on what other employees might think in the federal government,” the director said, stressing he wants FBI employees to realize that they can face severe discipline or other consequences for the same actions.
A “fair” response to a federal employee doing the same thing Clinton did, he said, would be to have a “robust disciplinary proceeding.”
Rep. Trey Gowdy (R-S.C.), a former prosecutor, grilled Comey about intent.
“You say there is insufficient evidence of intent. You say she was ‘extremely careless,’ but not intentionally so,” Gowdy said. “You and I both know intent is really difficult to prove. Very rarely do defendants announce, ‘On this day, I intend to break this criminal code section.’”
“You have to do it with circumstantial evidence. Or, if you are Congress and you realize how difficult it is to prove specific intent, you will formulate a statue that allows for gross negligence.”
Gowdy presented Comey with a Clinton quote: “‘I did not email any classified material to anyone on my email, there is no classified material’ — was that true?”
“There was classified material emailed,” Comey said.
“Secretary Clinton said she used just one device. Was that true?” Gowdy asked.
“She used multiple devices during the four years of her term as secretary of State,” Comey replied.
“Secretary Clinton said all work-related emails were returned to the State Department. Was that true?” Gowdy continued.
“No, we found work-related emails, thousands, that were not returned,” the FBI director said.
Rep. Gerry Connolly (D-Va.) later panned Gowdy for his line of questioning. “My friend from South Carolina uses big words like ‘exculpatory’ … this is all designed to discredit your findings,” he told Comey.
Connolly asked Comey if Clinton was untruthful or evasive during the investigation.
“There was no basis for concluding she was untruthful to us,” Comey replied. “…I don’t think the agents assessed she was evasive.”
Clinton’s campaign sent out an email after the Gowdy exchange with links to 2015 stories about the congressman releasing the name of a CIA source during his Select Committee on Benghazi hearings. The email also included article links about Oversight Committee Chairman Jason Chaffetz (R-Utah) “flagrantly” using his personal email on a House business card and cases in which he was accused of revealing sensitive information.
“It seems that there are two standards and that there is no consequence for these types of activities and dealing in a careless way with classified information,” Chaffetz said at the outset of the hearing. “It seems to a lot of us that the average Joe — the average American — that if they had done what you laid out in your statement, that they’d be in handcuffs. … There is a legitimate concern that there is a double standard.”
“You know what would be a double standard? If she was prosecuted for negligence,” Comey said later in the hearing under questioning. “…I think she was extremely careless. That I could establish.”
Rep. Carolyn Maloney (D-N.Y.) asked if Comey rewrote the law in any way as charged by Sen. Ted Cruz (R-Texas).
“No,” Comey replied.
He also answered charges about the timing of the announcement in relation to Clinton’s campaign, stating the decision “was entirely my own” and timing “was not a consideration.”
“Did you make your decision because of some sort of bribe to the attorney general?” Maloney asked.
“No,” Comey said.
Maloney asked if the director was surprised by the response to his decision from Republicans, noting that they lauded him one minute and are now attacking him the next.
“I’m not surprised by the intense interest and debate… they inevitably become focused on individual people; that’s OK,” he replied.
Comey testified that the “context” under which the FBI recommends prosecution or not is not political in nature but includes factors such as whether alcohol was involved, a crime was committed in the heat of passion, and what was the education or experience of the person involved.Rep. Jim Jordan (R-Ohio) said he believed the scrubbing of some of Clinton’s emails by her legal team “seems to me to provide some context to what took place here.”
Asked if Clinton knew her legal team deleted emails, the FBI director replied, “I don’t believe so,” adding that she was asked that question.
Rep. Ron DeSantis (R-Fla.) asked about the punishment that any federal employee would face for what Clinton did. Comey said the punishments could include termination or revocation of security clearance and that would be determined by a “suitability scrub.”
“I could imagine if it was a long time ago and it was a small amount of conduct” punishment could be less, the director hypothesized.
Comey later stressed: “One of my employees would not be prosecuted for this.” He also said “no Justice Department would bring such a case” in either a Republican or Democratic administration.
Comey said Clinton was determined to have set up the home server “as a matter of convenience — it was an ongoing system her husband already had and she wanted to set up a domain.”
“I don’t think that our investigation established she was actually particularly sophisticated with respect to classified information and the levels and treatment,” he said.
“Isn’t she an original classification authority?” DeSantis asked.
“Yes,” Comey replied.
Rep. Wm. “Lacy” Clay (D-Mo.), who called the hearing “a new low” that “violates both House rules and the rules of this committee” for being “blatantly partisan,” asked if Clinton intentionally violated the law or attempted to obstruct the FBI’s investigation.
“We did not develop clear evidence of that,” Comey replied.
On the recommendation against prosecution, the director said: “I know that frustrates people but that’s the way the law is.”
Rep. Mark Meadows (R-N.C.) noted that “many of my constituents would love me to criticize your service because of the conclusion you reached,” but he still valued Comey’s overall service.
Comey testified that three of the documents reviewed by the FBI had a making that it was partially confidential: a (C) at the beginning of a paragraph. He said none of the emails had headers indicating material within was classified. He later added that the FBI did not investigate “up the chain” to determine who added the (C) to the paragraphs in the emails passed on Clinton’s server.
Meadows asked if a “reasonable person” would know that was a classified marking.
“Before this investigation I would have said ‘yes’; now, I’m not so sure whether she was actually sophisticated enough to understand what a ‘c’ in parenthesis would mean,” Comey said.
“I think it’s possible that she didn’t understand what a ‘c’ meant when she saw it in the body of an email like that.”
The director said again that it was possible the server was hacked but not substantiated, prompting the Clinton campaign to send out an email stating “contrary to the baseless speculation and conspiracy theories, there has never been any evidence found to support the allegation that Hillary Clinton’s server was hacked” and including a list of article links.
Rep. John Duncan (R-Tenn.) asked if Clinton knew or should have known that she was obligated to protect classified information.
“Yes,” the FBI chief replied.
Comey later stressed to the committee: “We went at this very hard to see if we could make a case.”
He said people may brand him an “idiot” for the decision not to recommend prosecution “but what I hope they will not conclude is that I’m a dishonest person.”