Comey's Peculiar Explanations

Congress grills the FBI chief on why he let Hillary off the hook.

FBI Director James Comey testified Thursday before the House of Representatives Oversight and Government Reform Committee on the FBI’s probe of Hillary Clinton’s and her aides’ handling of e-mails containing classified information on her private e-mail system while she was Secretary of State. In more than four and a half hours of testimony, he sought to explain his recommendation, which he made public in his July 5th press statement, that there was not sufficient evidence for a reasonable prosecutor to bring a criminal case against Hillary Clinton. He said the FBI had not developed clear evidence that Clinton intentionally violated the law. Attorney General Loretta Lynch closed the case on July 6th based on the FBI’s recommendation.

When asked whether the FBI was looking into the Clinton Foundation, however, Director Comey notably declined to answer.

Director Comey admitted that he did not participate himself in the FBI’s interview of Hillary Clinton last Saturday, nor did he talk to all of the agents who were present at the interview. There evidently is no recording or full transcript of the interview, but there is an analysis which may or may not be provided to Congress. He also admitted that he did not compare Hillary’s FBI interview with her prior sworn testimony to Congress before he made his decision on what to recommend. Director Comey said a new referral from Congress for an investigation of possible perjury before Congress would be required. House Oversight and Government Reform Committee Chairman Jason Chaffetz (R-UT) responded that such a referral would be forthcoming shortly. The referral could include Clinton’s testimony that her attorneys had actually read the e-mails that they then deleted and that “There was nothing marked classified on my emails, either sent or received.”

In defending his recommendation not to prosecute Hillary Clinton or her aides regarding their handling of e-mails containing classified information on insecure e-mail facilities, the FBI director declared that there was not sufficient proof of willful intent, which he said is regularly imputed as a requirement to convict in all applicable criminal statutes. He said that proof of Hillary Clinton’s knowledge that what she did was unlawful would be required to justify a referral for criminal prosecution, which he claimed was lacking. In response to questions, the director tried to distinguish the Hillary Clinton case from the prosecution of General David Petraeus, which he claimed was based on evidence of Petraeus’s knowing and willful wrong-doing.

Although denying that he was effectively re-writing the language of any relevant statute to reach his conclusion, Director Comey asserted that it was appropriate to ignore the express “gross negligence” element in one such statute dealing with the gathering of defense-related information (18 U.S. Code §793(F)). He based his decision to ignore the “gross negligence” statutory element, despite his own statement that Hillary Clinton had been “extremely careless” in the “handling of very sensitive, highly classified information,” on his understanding of past precedent. He explained that federal prosecutors have brought only one case based on gross negligence in the last 99 years because, in part, of constitutional concerns with convictions in cases where there is no showing of criminal intent.  He also concluded that it would be unfair to embark on what he called “celebrity hunting” by singling out Hillary Clinton for prosecution for “gross negligence” when only one such case has been brought in 99 years. Similarly, the director disputed that the requisite criminal intent was provable under a separate criminal statute involving the unauthorized removal and retention of classified documents or material in an unauthorized location (18 U.S. Code § 1924), even though that is precisely what Hillary Clinton did.

Director Comey walked a tightrope during the Congressional hearing. He tried to reconcile the findings he set forth in his July 5th press statement and his Congressional testimony, which were at significant variance with assertions Hillary Clinton has made publicly over the last year and in her Congressional testimony under oath. He failed to square the circle. 

Even assuming that Director Comey was correctly applying what he described as a criminal intent standard, he failed to take into account the relevant circumstantial evidence of such intent.

Rep. Trey Gowdy (R-SC) had an exchange with Director Comey that set out the case for concluding that Hillary Clinton had criminal intent based on such circumstantial evidence. It is worth quoting from at length:

“GOWDY: …I’m going to ask you to put on your old hat. False exculpatory statements — they are used for what?

COMEY: Well, either for a substantive prosecution, or for evidence of intent in a criminal prosecution.

GOWDY: Exactly. Intent, and consciousness of guilt, right? Is that right?

COMEY: Right.

GOWDY: Consciousness of guilt, and intent. In your old job, you would prove intent, as you just referenced, by showing the jury evidence of a complex scheme that was designed for the very purpose of concealing the public record. And you would be arguing, in addition to concealment, the destruction that you and I just talked about, or certainly the failure to preserve. You would argue all of that under the heading of intent.

You would also be arguing the pervasiveness of the scheme: when it started, when it ended, and the number of e-mails, whether they were originally classified or up-classified. You would argue all of that under the heading of intent…

She affirmatively rejected efforts to give her a account, she kept these private e-mails for almost two years, and only turned them over to Congress because we found out she had a private e-mail account.

So you have a rogue e-mail system set up before she took the oath of office; thousands of what we now know to be classified e-mails, some of which were classified at the time; one of her more frequent e-mailed comrades was, in fact, hacked, and you don’t know whether or not she was; and this scheme took place over long period of time and resulted in the destruction of public records — and yet you say there is insufficient evidence of intent?

You say she was “extremely careless,” but not intentionally so. Now, 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. Just to put everyone on notice, I am going to break the law on this day.” It never happens that way. You have to do it with circumstantial evidence — or, if you’re Congress, and you realize how difficult it is to prove specific intent, you will formulate a statute that allows for “gross negligence.”

Congressman Gowdy asked Director Comey point-blank if Clinton’s testimony that she did not e-mail “any classified material to anyone on my e-mail” was true. Comey said it was not true. Was Clinton telling the truth when she said that she used only one device while Secretary of State? Comey said she used multiple devices. Did she return all work-related e-mails to the State Department as she had claimed? No was the reply. “We found work-related emails, thousands that were not returned,” Comey said.

Yet Director Comey skated by the voluminous amount of circumstantial evidence linking Hillary  Clinton’s many lies demonstrating guilty knowledge to proof of her criminal intent. Contrary to common sense, Director Comey said he did not think that Clinton meant to erase any e-mails despite the volume of erased e-mails that were work-related and some of which contained information that was deemed classified at the time they were sent or received. He rationalized Clinton’s handling of classified information on her private unsecured server on the grounds that she appeared to be “unsophisticated” in such matters. He tried to explain away Clinton’s direction to have a classified marking removed from a document and sent to her unsecured system as a so-called “non-paper.”

In short, Director Comey did not budge from his recommendation, accepted by Attorney General Lynch, that there be no criminal prosecution of Hillary Clinton or her aides as a consequence of their handling of classified information in e-mails sent or received over insecure facilities. He insisted that the FBI investigation and his recommendation, to which he said there was no dissent within the FBI team that conducted the investigation, were honest, apolitical and even-handed. Whatever his reasons for reaching the legal conclusion that he did, Director Comey has at least provided enough factual findings for the court of public opinion to judge Hillary Clinton’s “extreme carelessness” and pattern of lies to cover up her wrong-doing. 

The only real news to come out of the Congressional hearing was that there will be a new referral to the FBI to investigate Hillary Clinton for possible perjury and that she may not be out of the woods yet with regard to the Clinton Foundation.