Let’s listen in to Jason Chaffetz.
REP. JASON CHAFFETZ (R), UTAH: The Committee on Oversight and Government Reform will come to order.
Without objection, the chair is authorized to declare a recess at any time.
I want to thank Director Comey for being here, and doing so on short notice.[10:05:05]
My — I have the greatest admiration for the FBI. My grandfather was a career FBI agent.
I’d say I’m here because we’re mystified and confused by the fact pattern that you laid out and the conclusions that you reached.
It seems that there are two standards. And there’s no consequence for these types of activities and dealing in a careless way with classified information. 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 and they might be on their way to jail and they probably should.
And I think there is a legitimate concern that there is a double standard. If your name isn’t Clinton or you’re not part of the powerful elite, that Lady Justice will act differently. It’s a concern that Lady Justice will take off that blindfold and come to a different conclusion.
Hillary Clinton created this mess. Wasn’t Republicans. It wasn’t anybody else. She made a very conscious decision. On the very day that she started her Senate confirmation, she set up and got a domain name. And set up a system to avoid and bypass the safety, security, and the protocol of the State Department.
Classified information is classified for a reason. It’s classified because if it were to get out into the public, there are nefarious actors, nation states, others that want to do harm to this country. And there are people who put their lives on the line protecting and serving our country. When those communications are not secure, it puts their lives in jeopardy.
This classified information is entrusted to very few, but there is such a duty and an obligation to protect that, to fall on your sword to protect that. And yet, there’s — there doesn’t seem to be any consequence.
I was talking to Trey Gowdy and he made a really good point with us yesterday. Mr. Gowdy said, you know, in your statement, Mr. Director, you mentioned that there was no precedent for this. But we believe that you have set a precedent and it’s a dangerous one.
The precedent is if you sloppily deal with classified information, if you’re cavalier about it — and it wasn’t just a innocent mistake, this went on for years — that there’s going to be no consequence. We — we’re a different nation in the United States of America. We are self-critical. Most nations would never do this. But we do it in the spirit of making ourselves better. There will be all kinds of accusations about political this and political that.
I — I have defended your integrity, every step of the way. You are the definitive voice. I stand by that. But I am mystified and I am confused because you listen to your fact pattern and come to the conclusion that there is no consequence, I don’t know how to explain that.
We’ll have constituents ask us, they’ll get mad, they’re — you know, they’re frustrated. They’ve seen this happen time and time again. I don’t know how to explain it. And I hope that it — through this hearing, we can stick to the facts and understand this because there does seem to be two standards, there does seem to be no consequence, and I want to understand that. And I want to be able to explain it to the person that’s sitting at home. And that’s where we’re here.
And so I yield back. I now recognize the ranking member, Mr. Cummings.
REP. ELIJAH CUMMINGS (D), MARYLAND: Director Comey, thank you for being here today.
I want to begin by commending you and the public servants at the FBI for the independent investigation you conducted. You had a thankless task. No matter what recommendation you made, you were sure to be criticized.[10:10:00]
There’s no question that you were extremely thorough. In fact, some may even say you went too far in your investigation. But of course, that was your job. That is your job.
Secretary Clinton has acknowledged that she made a mistake in using a personal e-mail account. You explained on Tuesday that she and her colleagues at the State Department were extremely careless with their e-mails. But after conducting this exhaustive review, you determined that no reasonable prosecutor would bring a case based on this evidence. And you and the career staff recommended against prosecution.
Based on the previous cases you examined, if prosecutors had gone forward, they would have been holding the secretary to a different standard from everyone else. Amazingly, amazingly, some Republicans who were praising you just days ago for your independence, for your integrity, and your honesty, instantly turned against you because your recommendation conflicted with the predetermined outcome they wanted.
In their eyes, you had one job, and one job only: to prosecute Hillary Clinton. But you refused to do so. So now you are being summoned here to answer for your alleged transgressions. And in a sense, Mr. Director, you’re on trial. Contrary to the claims of your critics, there is absolutely no evidence that you made your recommendation for political reasons; no evidence that you were bribed or coerced or influenced; no evidence that you came to your conclusion based upon anything but the facts and the law.
I firmly believe that your decision was not based on convenience, but on conviction. Today, House Republicans are doing what they always do, using taxpayers’ money to continue investigating claims that have already been debunked just to keep them in the headlines one more day. When they hear a political siren, they rush towards it over and over again, even if the evidence is not there.
Exhibit A. Majority Leader Kevin McCarthy, who admitted on national television that Republicans established the Benghazi Select Committee to bring down Secretary Clinton’s poll numbers. I didn’t say that. McCarthy said it. The fact was confirmed by a Republican staffer on that committee who reported that he was fired in part for not going along with the hyper-focus on Secretary Clinton.
I give House Republicans credit. They certainly are not shy about what they are doing. They’ve turned political investigations into an art form. If our concerns here today are with the proper treatment of classified information, then we should start with a review of our previous hearing on General David Petraeus, who pled guilty last year to intentionally and knowingly compromising highly classified information.
The problem is, Mr. Director, we never had that hearing. This committee ignored that breach of national security because it did not match the political goals of House Republicans. If our concerns today were with finally addressing a broken classification system in which security levels are arbitrarily changed up and down, that would have been a legitimate goal. That would have been a valuable addition to reforming and improving our government. After all, we are the Government Reform Committee.
We could have held hearings here on Zika — the Zika virus, preventing gun massacres like the one in Orlando, or a host of other topics that could actually save people’s lives. But that’s not why we’re here. That is not why our chairman called this emergency hearing 48 hours after you made your recommendation.[10:15:05]
Everyone knows what this committee is doing. Honestly, I would not be surprised and I say this with all seriousness, I would not be surprised if tomorrow Republicans set up a new committee to spend $7 million-plus on why the FBI failed to prosecute Hillary Clinton.
Director Comey, let me conclude with this request. Even with all that I have said, I believe that there is a critical role for you today. I’ve listened carefully to the coverage on this issue. And I’ve heard people say as recently as this morning, three hours ago, that they were mystified by your decision. As a matter of fact, the chairman repeated it a minute ago.
So there is a perceived gap between the things you said on Tuesday and your recommendation. There’s a gap, Mr. Director. So in this moment, and this is a critical moment, I beg you to fill the gap. Because when the gap is not filled by you, it will be filled by others. Share with us, the American people, your process and your thinking. Explain how you examine the evidence, the law, and the precedent. Describe in clear terms how you and your team career professionals arrived at this decision.
If you can do that today, if you can do that, that could go a long way towards people understanding your decision.
Finally, I want to make it clear that I condemn these completely unwarranted political attacks against you. They have attacked you personally. They have attacked your integrity. They have impugned your professionalism. And they have even suggested that you were somehow bought and paid for because you made your recommendation based upon the law and the facts.
I know you’re used to working in a world of politics, but these attacks have been beyond the pale.
So, you do not deserve this. Your family does not deserve it. And the highly skilled and dedicated agents of the FBI do not deserve it. I honor your professionalism and your service to our country. And again, even if it takes until hell freezes over, I beg you to close the gap. Tell us what happened between what you found and your decision so that not only the members of this panel and this Congress will understand, but so that Americans will understand.
And if you do that, if you do that, then it will be all worth it today.
With that, I yield back.
CHAFFETZ: I think — hold on one second. With — with your indulgence, to the ranking member, for which I have the greatest respect, you asked for a hearing on General Petraeus and how that was dealt with. You got it. We will have one in this oversight committee and the record will reflect that in the Judiciary Committee, I repeatedly questioned Attorney General Holder. I repeatedly questioned the FBI director about the disposition of that case, probably more than any member in the House or Senate. And if you want a hearing, we’ll do that.
CUMMINGS: Does the gentleman yield?
CUMMINGS: Thank you.
CHAFFETZ: Number two, you complained that we haven’t done a hearing on Zika. The Oversight and Government Reform Committee I believe was the very first committee to actually do a hearing on Zika that was chaired by Mr. Mica. And I’m proud of the fact that we did a Zika hearing and we did it first.
CUMMINGS: Does the gentleman yield?
CUMMINGS: Can we have another one? Because the problem is still there.
CUMMINGS: Big time. Thank you.
CHAFFETZ: Absolutely, absolutely.
REP. MICA (R), FLORIDA: Mr. Chairman, I just — a unanimous consent request that we put the date of the hearing in the record at this time that I chaired, thank you, on Zika.
CHAFFETZ: Absolutely. And the ranking member knows that we have held multiple hearings on the criminal justice — on criminal justice reform. You asked for it. You’re passionate about it. And we did do that as well. So to suggest we haven’t addressed some of those issues I think is inaccurate.
CUMMINGS: I don’t think I did that, Mr. Chairman. But again, as late as yesterday with the problem in Minnesota, with an African American man being killed, I’d like to have some hearings still on the criminal justice system. Thank you.
CHAFFETZ: I thank the gentleman, without objection.
I’m going to work with you on that, as I have every step of the way.
CUMMINGS: Thank you, Mr. Chairman.
CHAFFETZ: Without objection, the chair is authorized to declare a recess at any time.[10:20: 02]
We’ll hold the record open for five legislative days for any members who would like to submit a written statement.
We’ll now recognize our distinguished witness for our first panel.
I am pleased to welcome the Honorable James Comey, the director of the Federal Bureau of Investigations. We welcome Director Comey, and thank him for being here.
Pursuant to committee rules, all witnesses are to be sworn before they testify. If you’ll please rise and raise your right hand. Do you solemnly swear or affirm that the testimony you’re about to give is the truth, the whole truth, and nothing but the truth?
Let the record reflect that the witness answered in the affirmative.
Mr. Comey, the floor is yours. You can take as long or as short as you’d like. If you have a written statement that you would like to submit afterwards, we’re happy to do that as well. It will be made part of the record. The time is now yours. Director Comey, you’re recognized.
JAMES COMEY, DIRECTOR, FBI: Thank you Mr. Chairman, Mr. Cummings, members of the Committee.
I am proud to be here today representing the people of the FBI who did this investigation as they do all their work in a competent, honest, and independent way. I believe this investigation was conducted consistent with the highest traditions of the FBI. Our folks did it in an apolitical and professional way, including our recommendation as to the appropriate resolution of this case.
As I said in my statement on Tuesday, I expected there would be significant public debate about this recommendation. And I’m a big fan of transparency, so I welcome the conversation we’re going to have here today. And I do think a whole lot of folks have questions about, “so why did we reach the conclusion we did and what was our thinking?” I hope to get an opportunity to address that and explain it. People can disagree, can agree, but they will at least understand that the decision was made and the recommendation was made the way you would want it to be, by people who didn’t give a hoot about politics, who cared about what are the facts, what is the law, and how similar people, all people have been treated in the past.
Maybe I can say a few words at the beginning that would help frame how we think about this. There are two things that matter in a criminal investigation of a subject. What did the person do, and when they did that thing, what were they thinking? When you look at the hundred years plus of the Justice Department’s investigation and prosecution of the mishandling of classified information, those two questions are present. What did the person do? Did they mishandle classified information? And when they did it, did they know they were doing something that was unlawful.? That has been the characteristic of every charged criminal case involving the mishandling of classified information.
I’m happy to go through the classifications in particular. In our system of law, there’s a thing called mens rea. It’s important to know what you did and when you did it. This Latin phrase “mens rea” means, “What were you thinking?”
We don’t want to put people in jail unless we prove that they knew they were doing something they shouldn’t do. That is the characteristic of all the prosecutions involving mishandling of classified information. There was a statute passed in 1917 that on its face makes it a crime, a felony for someone to engage in gross negligence. So that would appear to say, well, maybe in that circumstance you don’t need to prove they were doing something unlawful, maybe it’s enough to prove they were really, really careless beyond a reasonable doubt. At the time Congress passed that statute in 1917, there was a lot of concern in the House and Senate about whether that was going to violate the American tradition of requiring that before you go and lock somebody up, you proved they knew they were doing something wrong. So there was a lot of concern about it.
The statute was passed. As best I can tell, the Department of Justice has used it once in the 99 years since reflecting that same concern. I know from 30 years with the Department of Justice, they have grave concerns about whether it’s appropriate to prosecute somebody for gross negligence, which is why they’ve done it once that I know of in a case involving espionage.
When I look at the facts we gather here, as I said, I see evidence of great carelessness, but I do not see evidence that is sufficient to establish that Secretary Clinton or those with whom she was corresponding, both talked about classified information on e-mail and knew when they did it, they were doing something that was against the law. So given that assessment of the facts, my understanding of the law, my conclusion was and remains, no reasonable prosecutor would bring this case. No reasonable prosecutor would bring the second case in 100 years focused on gross negligence. I know that’s been a source of some confusion for folks, that’s just the way it is. I know the Department of Justice, I know no reasonable prosecutor would bring in the case. I know a lot of my former friends are out there saying, they would. I wonder where they were in the last 40 years because I’d like to see the cases they brought on gross negligence. Nobody would. Nobody did.
So judgment was, the appropriate resolution of this case was, not with a criminal prosecution.[10:25:04]
As I said, folks can disagree with that. I hope that they know that, that view, not just my view but of my team, was honestly held, fairly investigated, and communicated with unusual transparency because we know folks care about it.
So I look forward to this conversation. I look forward to answering as many questions as I possibly can. I’ll stay as long as you need me to stay because I believe transparency matters tremendously. I thank you for the opportunity.
CHAFFETZ: Thank you, director. I’m going to recognize myself here. Physically where were Hillary Clinton’s servers?
COMEY: The operational server was in the basement of her home in New York. The reason I’m answering it that way, is that sometimes after they were decommissioned they were moved to other facilitates — storage facilities, but the live device was always in the basement.
CHAFFETZ: Was that an authorized or unauthorized location?
COMEY: It was an unauthorized location for the transmitting of classified information.
CHAFFETZ: Is it reasonable or unreasonable to expect Hillary Clinton would receive and send classified information?
COMEY: As Secretary of State, reasonable that the Secretary of State would encounter classified information in the course of the Secretary’s work.
CHAFFETZ: Via e-mail?
COMEY: Sure, depending upon the nature of the system. To communicate classified information, it would have to be a classified rated e-mail system.
CHAFFETZ: But you did find more than 100 e-mails that were classified that had gone through that server correct?
COMEY: Through an unclassified server correct.
CHAFFETZ: Yes. So Hillary Clinton did come to possess documents and materials that contained classified information via e-mail on these unsecured servers is that correct?
COMEY: That is correct.
CHAFFETZ: Did Hillary Clinton lie?
COMEY: To the FBI? We have no basis to conclude she lied to the FBI.
CHAFFETZ: Did she lie to the public?
COMEY: That’s a question I’m not qualified to answer. I can speak about what she said to the FBI.
CHAFFETZ: Did she — did Hillary Clinton lie under oath?
COMEY: To the — not to the FBI. Not in a case we’re working.
CHAFFETZ: Did you review the documents where Congressman Jim Jordan asked her specifically and she said, quote, “there was nothing marked classified on my e-mails either sent or received,” end quote?
COMEY: I don’t remember reviewing that particular testimony, I’m aware of that being said, though.
CHAFFETZ: Did the FBI investigate her statements under oath on this topic?
COMEY: Not to my knowledge. I don’t think there’s been a referral from Congress.
CHAFFETZ: Do you need a referral from Congress to investigate her — her statements under oath?
COMEY: Sure do.
CHAFFETZ: You’ll have one. You’ll have one in the next few hours. Did Hillary Clinton break the law?
COMEY: In connection with her use of the e-mail server, my judgment is that she did not.
CHAFFETZ: Are you just not able to prosecute it or did Hillary Clinton break the law?
COMEY: Both. I don’t want to give an overly lawyerly answer. The question I always look at is, is there evidence that would establish beyond a reasonable doubt that somebody engaged in conduct that violated a criminal statute. And my judgment here there is not.
CHAFFETZ: The FBI does background checks. If Hillary Clinton applied for the job at the FBI, would the FBI give Hillary Clinton a security clearance?
COMEY: I don’t want to answer a hypothetical. The FBI has a robust process in which we adjudicate the suitability of people for employment in the bureau.
CHAFFETZ: Given the fact pattern you laid out less than 40 hours ago, would that person who had dealt with classified information like that, would that person be granted a security clearance at the FBI?
COMEY: It would be a very important consideration and a suitability determination.
CHAFFETZ: You’re kind of making my point, Director. The point being because I injected the word “Hillary Clinton,” you gave me a different answer.
If I came up to you and said that this person was extremely careless with classified with classified information, the exposure to hostile actors, had used despite a warning — created unnecessary burdens and exposure, if they said they had one device and you found out they had multiple devices, if there had been e-mail chains with somebody like Jake Sullivan asking for classification changes; you’re telling me that the FBI would grant a security clearance to that person?
COMEY: I hope I’m giving a consistent — I’m not saying what the answer would be.
I’m saying that would be an important consideration in a suitability determination for anybody.
CHAFFETZ: It’s — personally, I think that sounds like a bit of a political answer, because I can’t imagine that the FBI would grant a security clearance to somebody with that pattern.[10:30:06]
Do you agree or disagree with that?
JAMES COMEY, DIRECTOR, FBI: I say what I said before, again, it’s very hard to answer a hypothetical. I will repeat it: It would be a very important consideration in a suitability determination.
CHAFFETZ: Did Hillary Clinton do anything wrong?
COMEY: What do you mean by wrong?
CHAFFETZ: I think it’s self-evident.
COMEY: Well, I’m lawyer, I’m an investigator and I’m — hope, a normal human being.
CHAFFETZ: Do you really believe there should be no consequence for Hillary Clinton and how she dealt with this?
COMEY: Well I didn’t say, I hope folks remember what I said on Tuesday. I didn’t say there’s no consequence for someone who violates the rules regarding the handling of classified information. There are often very severe consequences in the FBI involving their employment, involving their pay, involving their clearances.
That’s what I said on Tuesday. I hope folks walk away understanding that just because someone’s not prosecuted for mishandling classified information, that doesn’t mean, if you work in the FBI, there aren’t consequences for it.
CHAFFETZ: So if Hillary Clinton or if anybody had worked at the FBI under this fact pattern, what would you do to that person?
COMEY: There would be a security review and an adjudication of their suitability and a range of discipline could be imposed from termination to reprimand and in between, suspensions, loss of clearance.
So you could be walked out or you could — depending upon the nature of the facts — you could be reprimanded. But there is a robust process to handle that.
CHAFFETZ: I’ve gone past my time. I yield back. I now recognize the ranking member Mr. Cummings.
REP. ELIJAHN CUMMINGS (D), MARYLAND: Thank you very much. Director Comey, and I want to thank you very much for being here today, especially on such short notice. You and your staff should be commended for the thorough and dedicated review you conducted.
Unfortunately, some of my colleagues are now attacking you personally because your final recommendation conflicted with their preconceived political outcome in this case.
Some have tried to argue that this case is far worse than the case of General David Petraeus, who was convicted in 2015 of knowingly and intentionally compromising highly classified information.
In fact, one very vocal politician we all know said this, and I quote, “If she isn’t indicted, the only reason is because the Democrats are protecting her. She is being protected 100 percent, because you look at General Petraeus, you look at all the other people that did a fraction of what she did, but she has much worse judgment than he had and she’s getting away with it and it’s unfair to him,” end of quote.
Director Comey, you were the director of the FBI when General Petraeus pled guilty. Is that right?
CUMMINGS: If I understand that case correctly, General Petraeus kept highly classified information in eight personal notebooks at his private residence. Is that correct?
COMEY: That is correct.
CUMMINGS: According to the filings on that case, his notebook included the identities of covert officers. He also included war strategy, intelligence capabilities, diplomatic discussions, quotes and (inaudible) discussions from high level national security council meetings and discussions with the president.
General Petraeus shared his information with his lover and then biographer. He was caught on audio tape telling her, and I quote, “I mean, they are highly classified, some of them. They don’t have it — it on — on it, but I mean, there’s code word stuff in there,” end of quote.
Director Comey, what did General Petraeus mean when he said he intentionally shared, quote, “code word” information with her? What does that mean?
COMEY: The Petraeus case, to my mind, illustrates perfectly the kind of cases the Department of Justice is willing to prosecute. Even there, they prosecuted him for a misdemeanor. In that case, you had vast quantities of highly classified information, including special sensitive compartmented information. That’s the reference to code words. Vast quantity of it. Not only shared with someone without authority to have it, but we found it in a search warrant hidden under the insulation in his attic and then he lied to us about it during the investigation.
So you have obstruction of justice, you have intentional misconduct and a vast quantity of information. He admitted he knew that was the wrong thing to do. That is a perfect illustration of the kind of cases that get prosecuted. In my mind, it illustrates importantly the distinction to this case.
CUMMINGS: And General Petraeus did not admit to these facts when the FBI investigators first interviewed him, did he?
COMEY: No, he lied about it.
CUMMINGS: But he did admit to these facts in a plea agreement. Is that correct?
CUMMINGS: Here’s what the department filing said about General Petraeus, and I quote. “The acts taken by defendant David Howell Petraeus were in all respects knowing and deliberate and were not committed by mistake, accident or other innocent reason,” end of quote.[10:35:04]
Is that an accurate summary, in your view, Director Comey?
COMEY: Yes, it actually leaves out an important part of the case, which is the obstruction of justice.
CUMMINGS: Was he — was he charged with obstruction of justice?
CUMMINGS: And why not?
COMEY: A decision made by the leadership of the Department of Justice not to insist upon a plea to that felony.
CUMMINGS: So the question is, do you agree with the claim that General Petraeus, and I quote, “got in trouble for far less,” end of quote? Do you agree with that statement?
COMEY: No, it’s the reverse.
CUMMINGS: And what do you mean by that?
COMEY: His conduct, to me, illustrates the categories of behavior that mark the prosecutions that are actually brought. Clearly intentional conduct, knew what he was doing was a violation of the law, huge amounts of information that even if you couldn’t prove he knew it, it raises the inference that he did it, an effort to obstruct justice. That combination of things makes it worthy of a prosecution. A misdemeanor prosecution, but a prosecution nonetheless.
CUMMINGS: Sitting here today, do you stand by the FBI’s recommendation to prosecute General Petraeus?
COMEY: Oh, yeah.
CUMMINGS: Do you stand by the FBI’s recommendation not to prosecute Hillary Clinton?
COMEY: Oh — yes.
CUMMINGS: Director Comey, how many times have you testified before Congress about the General Petraeus case? Do you know?
COMEY: I don’t think I’ve ever testified — I don’t think I’ve testified about it at all. I don’t think so.
CUMMINGS: With that, I’ll yield back.
CHAFFETZ: I have to check the record, but I believe I asked you a question about it at the time. But maybe not.
COMEY: You could have. That’s why I was squinching my face. It could have been a Judiciary Committee hearing I was asked about it.
CHAFFETZ: Yeah. We’ll now recognize the gentleman from South Carolina, Mr. Gowdy, for five minutes.
REP. TREY GOWDY (R), SOUTH CAROLINA: Good morning, Director Comey. Secretary Clinton said she never sent or received any classified information over her private e-mail. Was that true?
COMEY: Our investigation found that there was classified information sent…
GOWDY: So it was not true?
COMEY: That’s what I said.
GOWDY: OK. Well, I’m looking for a little shorter answer so you and I are not here quite as long. Secretary Clinton said there was nothing marked classified on her e-mails, either sent or received. Was that true?
COMEY: That’s not true. There were a small number of portion markings on, I think, three of the documents.
GOWDY: Secretary Clinton said, I did not e-mail any classified material to anyone on my e-mail, there is no classified material. Was that true?
COMEY: There was classified material e-mailed.
GOWDY: Secretary Clinton said she used just one device. Was that true? COMEY: She used multiple devices during the four years of her term as secretary of state.
GOWDY: Secretary Clinton said all work-related e-mails were returned to the State Department. Was that true?
COMEY: No. We found work-related e-mails, thousands that were not returned.
GOWDY: Secretary Clinton said neither she nor anyone else deleted work related e-mails from her personal account. Was that true?
COMEY: That’s a harder one to answer. We found traces of work- related e-mails in — on devices or in slack space. Whether they were deleted or whether when the server was changed out something happened to them. There’s no doubt that the work-related e-mails that were removed electronically from the e-mail system.
GOWDY: Secretary Clinton said her lawyers read every one of the e-mails and were overly inclusive. Did her lawyers read the e-mail content individually?
GOWDY: Well in the interest of time, and because I have a plane to catch tomorrow afternoon, I’m not going to go through anymore of the false statements. But I am going to ask you to put on your old hat. False exculpatory statements, they are used for what?
COMEY: Either for the — a substantive prosecution or for evidence of intent in a criminal prosecution.
GOWDY: Exactly. Intent and consciousness of guilt, right? Is that 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 content (ph) — 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. You would also, probably, under common scheme or plan, argue the burn bags of daily calendar entries or the missing daily calendar entries as a common scheme or plan to conceal.[10:40:01]
GOWDY: Two days ago, Director, you said, “A reasonable person in her position should have known a private e-mail was no place to send and receive classified information.” You’re right. An average person does know not to do that.
This is no average person. This is a former first lady, a former United States senator, and a former secretary of state that the president now contends is the most competent, qualified person to be president since Jefferson. He didn’t say that in ’08, but he says is now.
She affirmatively rejected efforts to give her a state.gov 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-mail comrades was in fact hacked, and you don’t know whether or not she was. And this scheme took place over a long period of time and it 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. You and I both know intent is really difficult to prove. Very rarely do defendants announced “on this date, I intend to break this criminal code section; just to put everyone on notice, I am going to break the law on this date.” 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.
My time is out, but this is really important. You mentioned there’s no precedent for criminal prosecution. My fear is there still isn’t. There’s nothing to keep a future secretary of state or president from this exact same e-mail scheme, or their staff.
And my real fear is this — it’s what the chairman touched upon, this double-track justice system that is rightly or wrongly perceived in this country, that if you are a private in the Army and you e-mail yourself classified information, you will be kicked out. But if you are Hillary Clinton and you seek a promotion to commander in chief, you will not be. So what I hope you can do today is help the average — the reasonable person you made reference to, the reasonable person understand why she appears to be treated differently than the rest of us would be.
With that, I would yield back.
CHAFFETZ: I will now recognize the gentlewoman from New York, Ms. Maloney.
REP. CAROLYN MALONEY (D), NEW YORK: Director, thank you for your years of public service. You have distinguished yourself as the assistant U.S. attorney for both the Southern District of New York and the Eastern District of Virginia. That’s why you were appointed by President Bush to be the deputy attorney general at the Department of Justice, and why President Obama appointed you as the director of the FBI in 2013.
Despite your impeccable reputation for independence and integrity, Republicans have turned on you with a vengeance immediately after you announced your recommendation not to pursue criminal charges against Secretary Clinton.
Let me give you some examples. Representative Turner said, and I quote, “The investigation by the FBI is steeped in political bias,” end quote. Was your investigation steeped in political bias? Yes or no?
COMEY: No. It was steeped in no kind of bias.
MALONEY: Thank you.
The speaker of the House Paul Ryan was even more critical. He accused you of not applying the law equally. He said your recommendation shows, and I quote, “the Clintons are living above the law; they’ve being held to a different set of standards; that is clearly what this looks like,” end quote.
How do you respond to his accusations that you held the Clintons to a different set of standards than anyone else? Did you hold them to a different standard or the same standard?
COMEY: It’s just not — it’s just not accurate. We try very hard to apply the same standard whether you’re rich or poor, white or black, old or young, famous or not known at all. I just hope folks will take the time to understand the other cases, because there’s a lot of confusion out there about what the facts were of the other cases that I understand good people, reasonable people to have questions.
MALONEY: Senator Cruz also criticized you. He said that there are, and I quote, “serious concerns about the integrity of Director Comey’s decision.” He stated that you, quote, “you had rewritten a clearly worded federal criminal statute.” Did you rewrite the law in any way or rewrite any statute?[10:45:15]
MALONEY: Now, I hesitate — I truly hesitate to mention the next one. But Donald Trump took these conspiracy theories to a totally new level. He said, and I quote, “It was no accident that charges (inaudible) recommended against Hillary the exact same day as President Obama campaigned with her for the first time.” So did you plan the timing of your announcement to help Secretary Clinton’s campaign event on Tuesday?
COMEY: No. The timing was entirely my own. Nobody knew I was going to do it, including the press. I’m very proud of the way the FBI, nobody leaked that. We didn’t coordinate it. Didn’t tell. Just not a consideration.
MALONEY: Mr. Trump also claimed that Secretary Clinton bribed the attorney general with an extension of her job. And I guess this somehow affected your decision. I know it’s a ridiculous question, but I have to ask it. Did you make your decision because of some kind of bribe to the attorney general?
MALONEY: I — I tell you, are you surprised as I am by the intensity of the attacks from the GOP on you, after having made a decision, a thoughtful decision, an independent decision with the professional staff of the FBI?
COMEY: I’m not surprised by the intense interest and debate. I predicted it. I think it’s important that we talk about these things. They inevitably become focused on individual people. That’s OK. We’ll just continue to have the conversation.
MALONEY: I believe that what we’re seeing today is that if the GOP does not like the results of an investigation or how it turns out, and we saw they originally were lauding you. The minute you made your announcement, they’re now attacking you — the same people.
And now, I predict they’ll be calling for more hearings, more investigations, all at the expense of the taxpayer. And they do this instead of working on what the American people really care about. They want Congress to focus on jobs, the environment, homeland security, the security of our nation, affordable childcare, affordable college educations, and an economy that works and helps all people.
I thank you for performing your job with distinction and the long history of your whole profession of integrity and independence. And thank you very much. My time is expired.
CHAFFETZ: I thank the gentlewoman.
We’ll now recognize the gentleman from Ohio, Mr. Jordan, for five minutes.
REP. JIM JORDAN (R), OHIO: Thank you, Mr. Chairman.
Director, thank you for being with us.
On Tuesday, you said, “any reasonable person in Secretary Clinton’s position should have known that an unclassified system was no place for these conversations.” You said on Tuesday, “some of her e-mails bore classified markings.” And you also said on Tuesday there were potential violations of the appropriate statutes.
Now, I know a bunch of prosecutors back home would look at that fact pattern and look at that evidence — you even referenced it in your opening statement, some of your prosecutor — friends in the prosecution business have been on TV saying they would have looked at that same evidence and they would have taken it to a grand jury.
But on Tuesday, you said, and today in your opening statement, you said, “no reasonable prosecutor would bring such a case.”
And then in your statement Tuesday, you cite factors that helped you make that decision and make that statement. And one of the factors you said was “consider the context of a person’s actions.” Typically, when I hear “context” in the course of a criminal investigation, it’s — it’s from the defense side, not the prosecution side. It’s at the end of the case after there’s been a trial and a guilty verdict, and it’s during the sentencing phase — mitigating circumstances. That’s the context we typically think about.
But you said it on the front end. You said “consider the context of the person’s actions.” And so I’m curious. What does “consider the context” mean? Because a lot of Americans are thinking just what the chairman talked about in his opening statement, that there are two standards: one for we the people, and one for the politically connected.
A lot of folks I get the privilege of representing back in Ohio think that when you said “consider the context,” they think that’s what Mr. Gowdy just talked about — the fact that she is former first lady, former secretary of state, former senator, major party’s nominee for the highest office in the land. And, oh by the way, her husband just met with the individual you work with at an airport in Arizona five days ago.[10:50:03] So, you said none of that influenced your decision. But tell us what “consider the context” means.
COMEY: Thank you, Mr. Jordan.
What I was trying to capture is the fact that the exercise for prosecutorial discretion is always a judgment case. It is in every single case. Among the things you consider are, what was this person’s background? What was the circumstances of the offense? Were they drunk? Were they inflamed by passion? Was it somebody who had a sufficient level of education, and training, and experience that we can infer certain things from that to consider the entire circumstances of the conduct and background? I did not mean to consider political context.
JORDAN: The entire circumstances, and Mr. Gowdy just talked about this scheme — remember what she did, right? She sets up this unique server arrange. She alone controlled it.
On the server, on that system are her personal e-mails, her work related e-mails, Clinton Foundation information, and now we know, classified information. This gets discovered. We find out this arrangement exists. Then what happens? Her lawyers, her legal team decides which ones we get and which ones they get to keep.
They made the sort on the front end. And then we find out the ones that they kept and didn’t give to us, didn’t give to the American people, didn’t give to Congress, the ones they kept, they destroyed them. And you don’t have to take my word. I’ll take what you said on Tuesday, “they deleted all e-mails they did not return to the State Department, and the lawyers cleaned their devices in such a way as to preclude complete forensic recovery.” Now, that sounds like a fancy way of saying they hid the evidence, right? And you just told Mr. Gowdy thousands of e-mails fell into those categories.
Now, that seems to me to provide some context to what took place here. Did Secretary Clinton’s legal team — excuse me, let me ask it this way. Did Secretary Clinton know her legal team deleted those e- mails that they kept from us?
COMEY: I don’t believe so.
JORDAN: Did Secretary Clinton approve those e-mails being deleted?
COMEY: I don’t think there was any specific instruction or conversation between the Secretary and her lawyers about that.
JORDAN: Did you ask that question?
JORDAN: Did Secretary Clinton know that her lawyers cleaned devices in such a way to preclude forensic recovery?
COMEY: I don’t believe she did.
JORDAN: Did you ask that question?
JORDAN: Do you see how someone could view the context of what she did, set up a private system, she alone controlled it, she kept everything on it? We now know from Ms. Abedin’s deposition they did it for that reason, so no one could see what was there based on the depositions Ms. Abedin gave. And then when they got caught, they deleted what they had and they scrubbed their devices. Is that part of the context in evaluating this decision?
COMEY: Sure, sure. And I understand what inferences can be drawn from that set of facts, of course.
JORDAN: Mr. Chairman, I yield back.
CHAFFETZ: I thank the gentleman. We will now recognize the gentle woman from the District of Columbia, Mrs. Norton for five minutes.
DEL. ELEANOR HOLMES NORTON (D), D.C.: Thank you, Mr. Chairman. Director Comey, I appreciate your conduct of this investigation in a nonpartisan way in keeping with the sterling reputation, which has led presidents of both parties to appoint you to highly placed law enforcement positions in our federal government.
I want to say for the record that this hearing where you call the prosecutor, Mr. Comey, stands in the place of the prosecutor, because the Attorney General has accepted entirely the FBI’s recommendations. When you call the prosecutor to give account for the decision to prosecute or not a particular individual raises serious questions of separation of powers, and particularly when you’re questioning the prosecutor’s decision with respect to the decision, to prosecute or not a particular individual, it raises serious bill of attainder Constitutional questions.
These hearings are so often accusatory that they yield no guidance as to how to conduct business in the future. And that’s the way it looks — it looks as though that is how this hearing is going. Of course, now, everyone understands in the abstract, why it is important for security reasons to use official government mail or e- mail rather than private e-mail if security matters are involved. It’s a very broad, wide proposition.[10:55:27]
Now, there are no rules so far as I know, requiring members of Congress to use their — as to how they use their official e-mail accounts, whether involving security or not. The Chairman of this Committee lists his personal account, for example, on his business card. No one says that’s wrong. I don’t know if it’s wrong or right, because there’s no guidance.
Federal agency employees, members of Congress, often have secure information or at least sensitive information that shouldn’t be made public. Some of our members on the Intelligence Committee, or the Defense Committee or even this committee, and they have such matters — some of these matters may concern national security issues. And I don’t know if something is sensitive, as the itinerary — if you’re going to a hotel as to the route you’re taking, and where you will be, all that could be on people’s personal e-mails.
Of course, there’s a legislative branch, and I spoke of separation of powers. I’m not indicating that there should be a government-wide sense that it is ordained from or hide (ph) — but there ought to be rules that everybody understands about especially after the Clinton episode, about the use of personal e-mail. So I would like your insight for guidance as far as other federal employees are concerned or other members of Congress and their staff because I think we could learn from this episode.
So strictly from a security standpoint, do you believe that federal employees, staff, even members of Congress, should attempt guidance on the issue of the use of personal e-mails versus some official form of communication? What should we learn from the process the Secretary has gone through? I’m sure there will be questions about how there was even confusion, for example, in the State Department. But what should we learn when it comes to our own — our own use of e-mail and the use of federal employees on this question?
COMEY: May I answer, Mr. Chairman?
The most important thing to learn is an unclassified e-mail system is no case for an e-mail conversation about classified matters. By that, I mean either sending a document as an attachment over unclassified e-mail that is classified, or having a conversation about something that is a classified subject on an unclassified e-mail system. That’s the focus of the concern.
That’s the focus of this investigation, that it was also a personal e-mail adds to the concern about the case because of the security vulnerabilities associated with a personal system. But the brute of the problem is people using unclassified systems to conduct business that is classified. So all of us should have access to, when we have access to classified information, classified communication systems.
The FBI has three levels an unclassified system, a secret system, and a top secret system. You can e-mail on all three, but you need to make sure you don’t e-mail on the unclassified system, even if that’s a government classified system about matters that are classified. That’s the important lesson learned.
Everybody ought to be aware of it. Everybody ought to be trained on it. We spend a lot of time training on it in the FBI to make sure folks are sensitive to the need of moving a classified discussion, even if it doesn’t involve sending a document to the appropriate forum.
NORTON: Members of Congress included?
COMEY: Of course.
NORTON: Thank you, Mr. Chairman.
CHAFFETZ: We’ll now recognize the gentleman from Florida, Mr. DeSantis for five minutes.[11:00:00]
REP. RON DESANTIS (R), FLORIDA: Director, the reason why that’s so important is because of if top secret information is compromised, that could damage our national security, correct?
JAMES COMEY, DIRECTOR, FBI: Yes, by definition…
DESANTIS: And American lives are at stake in some instances, correct?
DESANTIS: You mentioned, a lot of people are upset that there are no consequences for Secretary Clinton, but in your statement you pointed out that administrative and security consequences would be appropriate if someone demonstrated extreme carelessness for classified information. So for those consequences, that would include potentially termination of federal employment?
DESANTIS: It could include revocation of security clearance?
DESANTIS: It could include and ineligibility for future employment in national security positions?
COMEY: It could.
DESANTIS: Would you as the FBI Director allow someone, and employee of your agency to work in a national security capacity, if that person had demonstrated extreme carelessness in handling top- secret info?
COMEY: The answer to that is we would look very closely at that in a suitability determination. It’s hard to answer in the abstract, “yes in all cases and no in all cases,” but it would be a very important suitability scrub.
DESANTIS: So there would be instances where someone could be extremely careless and maintain competence? We have a lot of people who are competent in this country who would love to work for your agency, but yet, it would be potentially — you would allow someone to be potentially careless and carry on?
COMEY: In the hypothetical, I can imagine if it was a long time ago, and it was a small amount of conduct or something — that’s why it’s hard to say other than it would be a very important part…
DESANTIS: Let’s put it this way. Would being extremely careless in handling top secret information expose an employee of the FBI to potential termination?
DESANTIS: Why shouldn’t U.S. officials use mobile devices when traveling to foreign countries, especially if they’re discussing classifying or sensitive information?
COMEY: Because the mobile device will transmit its signal across networks that are likely controlled or at least accessed by that hostile power.
DESANTIS: That’s the guidance that the FBI gives all officials when they’re traveling overseas? That’s still good guidance, correct?
COMEY: That’s good guidance.
DESANTIS: How did top secret information end up on the private server, because your statement addressed Secretary Clinton. You did not address any of her aides in your statement. Attorney general Lynch exonerated everybody. That information just didn’t get there on its own, so how did it get there? Were you able to determine that?
COMEY: Yes, by people talking about a top secret subject in an e-mail communication.
COMEY: Not about forwarding a top secret document, it’s about having a conversation about a matter that is top secret.
DESANTIS: And those were things that were originated by Secretary Clinton’s aides and sent to her, which would obviously be in her server, but it was also included Secretary Clinton originating those e-mails, correct?
COMEY: That’s correct.
In most circumstances, it initiated with aides starting the conversation. In the one involving top secret information, Secretary Clinton not only received but sent e-mails talking about the same subject.
DESANTIS: And of that top secret information you found, would somebody who is sophisticated in those matters, should it have been obvious to them that was sensitive information?
DESANTIS: So I guess my issue about knowledge of what you’re doing is, in order for Secretary Clinton to have access to top secret, SCI FBI information, didn’t she have to sign a form with the State Department acknowledging her duties and responsibilities under the law to safeguard this information?
COMEY: Yes. Anybody who gets access to SCI, Sensitive Compartmented Information would sign a read-in form that lays that out. I’m sure members of Congress have seen the same thing.
DESANTIS: And it stresses in that document and other training people would get, that there are certain requirements to handling certain levels of information. For example, a top secret document, that can’t even be on your secret system at the FBI, correct?
DESANTIS: So you have to follow certain guidelines. And I guess my question is, is she’s very sophisticated person, she did execute that document, correct?
DESANTIS: And her aides who were getting the classified information, they executed similar documents to get a security clearance, correct?
COMEY: I believe so.
DESANTIS: And she knowingly clearly set up her own private server in order to — let me ask you that, was the reason she set up her own private server in your judgment was because she wanted to shield communications from Congress and the public?
COMEY: I can’t say that.
Our best information is that she set it up as a matter of convenience. It was an existing system her husband had and she decided to have a domain on that system.
DESANTIS: So the question is, is very sophisticated, this is information that clearly anybody who had knowledge of security information would know that it would be classified? But I’m having a little bit of trouble to see, how would you not then know that that was something that was inappropriate to do?
COMEY: Well, I just want to take one of your assumptions about sophistication. I don’t think that our investigation established she was actually particularly sophisticated with respect to classified information and the levels and treatment, and so far as we can tell…
DESANTIS: Isn’t she in an original classification of authority?
COMEY: Yes, sir.
DESANTIS: Good grief.
Well, I appreciate you coming. I yield back the balance of my time.
REP. JASON CHAFFETZ (R), UTAH: I thank the gentleman. I ask unanimous consent to enter into the record two documents that Mr. DeSantis referred to. One is the Sensitive Compartmented Information Nondisclosure agreement, the other one is the Classified Information Nondisclosure Agreement, both signed by Hillary Rodham Clinton. Without objection, so ordered.
I now recognize the gentleman from Missouri, Mr. Clay, for five minutes.
REP. WILLIAM CLAY (D), MISSOURI: Thank you, Mr. Chairman. Thank you, Director Comey, for being here today and for the professionals whom you lead at the FBI.
Two years ago, after my urgent request to then Former Attorney General Eric Holder for an expedited Justice Department investigation into the tragic death of Michael Brown in Ferguson, Missouri, I witnessed first hand the diligence, professionalism, and absolute integrity of your investigators. And I have no doubt that was the case in this matter as well.
I did not think it was possible for the majority to exceed their unprecedented arrogant abuse of official channels and federal funds that we have witnessed over the past two years. As they have engaged in a partisan political witch hunt at taxpayer expense against Secretary Clinton. But I was wrong, this proceeding is just a sequel to that very bad act and the taxpayers will get the bill.
It’s a new low, and it violates both house rules and the rules of this Committee. So with apologies to you and the FBI for this blatantly partisan proceeding, let me return to the facts of this case as you have clearly outlined them.
First question. Did Secretary Clinton or any member of her staff intentionally violate federal law?
COMEY: We did not develop clear evidence of that.
CLAY: Did Secretary Clinton or any member of her staff attempt to obstruct your investigation?
COMEY: We did not develop evidence of that.
CLAY: In your opinion, do the mistakes Secretary Clinton has already apologized for and expressed regret for, rise to a level that would be worthy of federal prosecution?
COMEY: As I said Tuesday, our judgment, not just mine, but the team’s judgment at the FBI is that the Justice Department would not bring such a case. No Justice Department would under any –whether Republican or Democrat administration.
CLAY: Thank you for that response.
I know the FBI pays particular attention to groups by training agents and local law enforcement officers and participating in local hate crime working groups. Is that right?
COMEY: Yes, sir.
CLAY: Some of these organizations seem relatively harmless, but others appear to be very dangerous and growing. Some even promote genocide in their postings and rhetoric online. In your experience, how dangerous are these groups and have they incited violence in the past?
COMEY: I think too hard to answer, Congressman in the abstract, there are some groups that are dangerous, there are some groups that are exercising important protected speech under the First Amendment.
CLAY: Let me ask about it in a more direct question. A gentleman named Andrew England is the editor of a website called the Daily Stormer that is dedicated to the supremacy of the white race, as well as attacking Jews, Muslims, and others. The website features numerous posts with the hash #whitegenocide, to protest what they contend is an effort to eliminate the white race. Are you familiar with this movement?
COMEY: I’m not.
CLAY: Okay. Well, this hash tag has been promoted all over social media by a growing number of white supremacists. For example, one Nazi sympathizer tweeted repeatedly using the handle, @whitegenocidetm. Are you concerned that some groups are increasing their followers in this way, particularly if some of those followers could become violent?
COMEY: I don’t know the particular enough to comment, Congressman.
We are always concerned when people go beyond protected speech, which we do not investigate, moving towards acts of violence. And so, our duty is to figure out when have people walked outside the First Amendment protection and are looking to kill folks or hurt folks.
I don’t know enough to comment on the particular.
CLAY: I see.
Well, one of my biggest concerns is that certain public figures are actually promoting these groups even further, and as you may know, one of our most vocal candidates for president retweeted @whitegenocidetm. Three weeks later, he did it again. Two days after that, he retweeted a different user whose image also included the term white genocide, and that’s not even all of them.
Director Comey, don’t these actions make it easier for these racist groups to recruit even more supporters?
COMEY: I don’t think I’m in a position to answer that in an intelligent way sitting here.
CLAY: I appreciate you trying, and thank you, Mr. Director, for your exceptional principled service to our country.
I yield back.
CHAFFETZ: Thank you. We’ll now recognize the gentlewoman from Wyoming, Ms. Lummis for five minutes.
REP. CYNTHIA LUMMIS (R), WYOMING: Welcome, Director. Thank you so much for being here.
My phone has been ringing off the hook in my Washington office, in my Wyoming office — from constituents who don’t understand how this conclusion was reached. So I appreciate you being here to help walk us through it.
And here’s the issue that the people that are calling me from Wyoming are having, they have access to this statute, it’s Title XVIII U.S. Code 1924. I’m going to read you the statute, it says, “whoever being an officer employee, contractor, or consultant to the United States and by virtue of his office, employment, position, or contract becomes possessed of documents or materials containing classified information of the United States knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than one year or both.” Armed with that information, they’re wondering how Hillary Clinton, who is also an attorney, and attorneys are frequently held to a higher standard of knowledge of the law, how this could not have come to her attention.
She was the Secretary of State. Of course, the Secretary of State is going to become possessed of classified materials. Of course, she was an attorney, she practiced with a prominent Arkansas law firm, the Rose Law Firm. She knew from her White House days with her husband, the President, that classified materials can be very dangerous if they get into the wrong hands.
She had to have known about this statute because she had to have been briefed when she took over the job as the Secretary of State. So how, given that body of knowledge and experience, could this have happened in a way that could have potentially provided access by hackers to confidential information?
COMEY: You know, it’s a good question. A reasonable question.
The protection we have as Americans is that the government in general and in that statute in particular, has to prove before they can prosecute any of us, that we did this thing that’s forbidden by the law. And when we did it, we knew we were doing something that was unlawful. We don’t have to know the code number, but that we knew we were doing something that was unlawful. That’s the protection we have, one I have worked for very hard.
When I was in the private sector, I did a lot of work with the Chamber of Commerce to stop the criminalization of negligence in the United States…
LUMMIS: Your know thought Mr. — may I interrupt and suggest that, this statute says, “knowingly removes such documents or materials without authority and with the attempt to retain such documents or materials at an unauthorized location.” The intent here in the statute is to retain the documents at an unauthorized location. It’s not intent to pass them on to a terrorist or to someone out in Internet land, it’s just the intent to retain the documents or materials at an unauthorized location.
COMEY: It’s more than that, though.
You would have to show that and prove criminal intent both by law, that’s the way the judgment would instruct the jury, and practice by the Department of Justice. They have reserved that statute, even though it’s just a misdemeanor, for people who clearly knew they were breaking the law, and that’s the challenge.
So should have known, must have know, had to know — does not get you there. You have to prove beyond a reasonable doubt that they knew they were engaged in something that was unlawful. That’s the challenge.
LUMMIS: Then may I turn to her attorneys? Did all of Secretary Clinton’s attorneys have the requisite clearances at the times they received all of her e-mails, especially those that were classified at the time they were sent?
LUMMIS: They destroyed, as has been noted, 30,000 e-mails of Secretary Clinton’s. Do you have 100 percent confidence that none of the 30,000 e-mails destroyed by Secretary Clinton’s attorneys was marked as classified?
COMEY: I don’t have 100 percent confidence.
I’m reasonably confident some of them were classified. There were only three in the entire batch we found that bore any markings to indicate they were classified. So that’s less likely, but surely, it’s a reasonable assumption some of the ones they deleted contained classified information.
LUMMIS: Thank you, Director. Thank you, I yield back.
CHAFFETZ: I now recognize the gentleman from Massachusetts, Mr. Lynch, for five minutes.
REP. STEPHEN LYNCH (D), MASSACHUSETTS: Thank you, Mr. Chairman. Thank you, Director Comey, for appearing here to help the Committee with this work.
Director Comey, Secretary Clinton is certainly not the only Secretary of State to use a personal e-mail account with information later identified as being classified. I want to show you, this is a book that was written by Former Secretary of State Colin Powell. And in his book, he says, “to complement the official state department computer in my office, I installed a laptop computer on a private line. My personal e-mail account on a laptop allowed me to direct access to anyone online. So I started shooting e-mails to my principle assistants, to individual ambassadors, and increasingly, to my foreign minister colleagues who like me were trying to bring their ministries into the 186,000 miles per second world.” Were you aware of this, that Secretary Colin Powell actually had a private server as well?
COMEY: Not a private server. I think he used a commercial e- mail account for state department business.
LYNCH: Private line? Unprotected?
COMEY: Correct. Not a State Department e-mail system.
LYNCH: He went rogue, so to speak. Right?
COMEY: I don’t know whether I would say that.
LYNCH: All right. I’m not going to put words in your mouth.
Do you think this was careless for him to do that, to start — get his own system.? He installed a laptop computer on a private line. “ My personal e-mail account was on a laptop and allowed me direct access to anyone. Anyone online.” That’s his own statement.
I’m just trying to compare Secretaries of State because Secretary Powell has never been here. As a matter of fact, when we asked him for his e-mails, unlike the 55,000 that we received from Secretary Clinton, he said, “I don’t have any to turn over.” This is a quote. This was on ABC this week. He explained, “I don’t have any to turn over. I didn’t keep a cache of them. I did not print them off. I do not have thousands of pages somewhere in my personal files.” But he was Secretary of State and he operated, you know, on a private system. Were you aware of that?
COMEY: Not at the time 15 years ago, but I am now.
LYNCH: Yes, okay.
So recently, well, back in October 2015, the State Department sent Secretary Powell a letter requesting that he contact his e-mail provider, AOL, to determine whether any of his e-mails are still on the unclassified systems. Are you aware of that ongoing investigation?
COMEY: I don’t know of an investigation…
LYNCH: Well, that request for information from Secretary Powell, the former Secretary?
COMEY: Yes. Yes, I am.
LYNCH: You’re aware of that. Are you surprised that he has never responded?
COMEY: I don’t know enough to comment. I don’t know exactly what conversation he had with the State Department.
LYNCH: I try to look at the — where we have a lot of comparisons of other cases. And it seems like all the cases where prosecutions have gone forward, the subject of the investigation has demonstrated a clear intent to deliver classified information to a person or persons who were unauthorized to receive that.
So if you look at the, you know, PFC Bradley Manning, now Chelsea Manning, that was a court-martial, but he demonstrated a clear intent to publish that information, which was classified. Julian Assange, the WikiLeaks editor I guess and publisher, again a wide and deliberate attempt to publish classified information. General Petraeus, which we talked about earlier today, shared information with his biographer. Jeffrey sterling, of the New York times and Former CIA Officer Kiriakou who was interested in writing a book, so he hung on to his information. And even Former Director of the CIA, John Deutsche, who retains classified information on a couple of servers, one in Belmont, Massachusetts, and one in Bethesda, Maryland, now that is after he became a private citizen.
So in all those cases, there’s a clear intent. As you said before, you look at what people did and what they were thinking when they did that. And I would just ask you, is there a clear distinction between what those people did and what Secretary Clinton did in her case?
COMEY: In my view, yes. The Deutsche case illustrates it perfectly. He took huge amount of documents, almost all of the TS-CIA level, had them in hard copy at his house, had them on an unclassed system attached to the Internet, attempted to destroy some when he got caught. Admitted, “I knew I wasn’t supposed to be doing this,” — clear intent, obstruction of justice. Those are the kind of cases that get prosecuted.
That’s what I said and I meant it when I said it. In my experience, which is three decades, no reasonable prosecutor would bring this case. I know that frustrates people, but that’s the way the law is, and that’s the way the practice is in the Department of Justice.
LYNCH: Thank you for your testimony and for your service. I yield back.
CHAFFETZ: I thank the gentleman. We’ll go to the gentleman from North Carolina, Mr. Meadows, for five minutes.
REP. MARK MEADOWS (R), NORTH CAROLINA: Thank you, Mr. Chairman. Director Comey, thank you. There has been much said today about criticizing you and your service. And I want to go on record that even though many of my constituents would love for me to criticize your service because of the conclusion you reached, never have I, nor will I criticize your service. And we appreciate your service to this country and the integrity.
So I’m going to focus on the things that you said, not the conclusion that you drew. And Congressman Trey Gowdy and I talked a little bit about this. On February 4th, 2016, Secretary Clinton during a presidential debate said, “I never sent or received any classified material. They are retroactively classifying it. “ Close quote.
And so in your statement on July 5th, you said that, “there were indeed 110 e-mails, 52 e-mail chains which there was classified information on it at the time it was sent or received.” So those two statements, both of them cannot be true. Is that correct, your statement and her statement.?
COMEY: It’s not accurate to say that she did not send or receive classified…
MEADOWS: So she did not tell the truth during that presidential debate that she never sent or received classified information, and it was retroactively classified?
COMEY: I don’t think that’s a question I should be answering of what was her in head.
MEADOWS: Well, either your statement is not true or hers is not true. Both cannot be true. Is your statement true?
COMEY: That I can speak to.
MEADOWS: OK, so your statement is true, so the American people will have to judge with her statement not being true.
So let me go on to another one. On October 22nd, she said, “there was nothing marked classified on e-mails either sent or received,” and in your statement, you said ,a” very small number of e- mails contained classified information, bore markings indicating the presence of classified information at the time.” So she makes a statement that says there was no markings. You make a statement that there was. So her statement was not true?
COMEY: That one I actually have a little insight into her statement because we asked her about that. There were three documents that bore portion markings where you’re obligated when something is classified to put a marking on that paragraph.
COMEY: There were three that bore “c” which means that’s confidential classified information.
MEADOWS: So a reasonable person who has been a Senator, a Secretary of State, a First Lady, wouldn’t a reasonable person know that that was a classified marking? As a secretary of state, a reasonable person? That’s all I’m asking.
COMEY: Before this investigation, I probably would have said, yes. I’m not so sure. I don’t find it incredibly…
MEADOWS: Director Comey, come on.
I mean, I have only been here a few years and I understand the importance of those markings. So you’re suggesting that a long length of time that she had no idea what a classified marking would be? That’s your sworn testimony today?
COMEY: No, no, not that she would have no idea what a classified marking would be, but it’s an interesting question as to — the question about sophistication came up earlier — whether she was sophisticated enough to understand what a “c” means.
MEADOWS: So you’re saying the former Secretary of State is not sophisticated enough to understand a classified marking?
COMEY: That’s not what I said.
MEADOWS: That’s a huge statement.
COMEY: That’s not what I said. You asked me did I assume someone would know. Probably before the investigation, I would have, I’m not so sure of that answer any longer. I think it’s possible — possible that she didn’t understand what a “c” meant when she saw it in the body of the e-mail like that.
MEADOWS: After years in the Senate and Secretary of State, I mean, that’s hard for me and the American people to believe, Director Comey. And I’m not questioning your analysis of it, but wouldn’t a reasonable person think that someone who has the highest job of handling classified information would understand that?
COMEY: I think that’s the conclusion a reasonable person would draw. It may not be accurate…
MEADOWS: Let me go a little bit further, because that last quote actually came on October 22nd, 2015, under sworn testimony before the Benghazi Committee. So if she gave a sworn testimony, that a reasonable person would suggest is not truthful, isn’t it a logical assumption she may have misled Congress, and we need to look at that further?
COMEY: Well, the reasonable person test is not what you look at for perjury or false statements. But like I said, I can understand why people would ask that question.
MEADOWS: All right.
So let me in the last little portion of this, in your three and a half-hour interview on Saturday, did she contradict some of these public statements in private? Because you said she didn’t lie to the FBI, but it’s apparent that she lied to the American people. So did she change her statements in that sworn testimony with you last Saturday?
COMEY: I haven’t gone through that to parse that…
MEADOWS: Can you do that and get back to this Committee? It’s important, I think to the American people and to transparency.
COMEY: I’m sure. And as the Chairman and I have talked about, I’m sure the Committee is going to want to see documents of our investigation and whatnot. And we’ll work to give you whatever we can possibly give you under our law, but I haven’t done that analysis at this point.
MEADOWS: Will you do that and get back to us?
CHAFFETZ: The gentleman’s time has expired. We’ll now recognize the gentleman from Tennessee, Mr. Cooper, for five minutes.
REP. JIM COOPER (D), TENNESSEE: Thank you, Mr. Chairman. Thank you, Director Comey.
I hate to see one of America’s most distinguished public servants pilloried before this Committee. We’re all highly partisan here. We’re a good back seat drivers. We’re all today, apparently, armed chair prosecutors.
And you stated the truth when you said, “you didn’t know of anyone who would bring a case like this”. Some of the prosecutors have had the case to do that. I hope that this Committee’s effort is not intended to intimidate you, or the FBI ,or law enforcement in general, or government employees. And I’m thankful at this moment that you have such a lifetime record of speaking truth to power because that’s very important.
It’s also very important that apparently you’re a life-long Republican. You’re just here to do your job, state the facts.
I think the key issue here is whether in fact there is a double standard, whether some Americans are being treated differently than others? I think I can rely on my Republican colleagues to make sure that Hillary Clinton is treated no better than anybody else. There should be some attention given to make sure she’s not treated any worse than anybody else.
I think we all know that we wouldn’t be having this hearing, especially on an emergency basis, unless she were running for President. My colleague from Massachusetts has just pointed out the previous Secretaries of State are not being called on the carpet, whether that be Condoleezza Rice, or Colin Powell, or others. But I think the grossest double standard here today is the fact that all of the members of this Committee, every member of Congress, is not subject to the same law that Secretary Clinton was subject to.
And as lawmakers, that means that we have exempted ourselves from the standard of other federal employees. My colleague from D.C., Ms. Norton, referred to this. Why did we exempt ourselves from the same rules? Apparently, our Chairman lists his private e-mail account on his business card. We all have access to classified information.[11:30:05]
I would like to challenge my Republican colleagues here today. Let’s work together and introduce legislation to make the same laws apply to us as applied to the executive branch and to Secretary Clinton.
I would be happy to join in such legislation to make sure that we’re not being hypocritical on this panel, that we’re holding ourselves to the same standards as Secretary Clinton and not trying to accuse her of things that we may be guilty of ourselves. I bet my colleagues would be the first to complain if, for example, e-mails were retroactively classified.
That’s a situation most people in public service would object to pretty strongly. How did you know at the time if you had no idea? So I think it’s very important, if we want as Congress to have the trust of the American people, to not be hypocritical. To uphold the same standards that we want to see upheld by others.
And I’m just thankful at this moment in our history that we have someone like you who’s in charge of the FBI. Because too many things are highly politicized. The last thing we should do is criminalize our political system.
I didn’t see any of my Republican colleagues complain when former Governor Bob McDonnell was exonerated by an eight to zero vote at the Supreme Court for having done certain things that I think most Americans would find object able.
But our court on a bipartisan, unanimous basis exonerated him just a week or two ago. So I think this is a moment for committee members reflect, to take a deep breath, to calm down and realize exactly what you said, that no reasonable prosecutor would have brought this case. And thank you for stating that so clearly and publicly.
I yield back the balance. I yield to the Ranking Member.
REP. ELIJAH CUMMINGS (D), MARYLAND: Mr. Director, lemme ask you this. First of all, I associate myself with everything the gentleman just said. You were talking about some markings a little bit earlier, is that right?
Can you describe what those markings are like — markings on the documents? You said there were three documents with certain markings on them.
JAMES COMEY, DIRECTOR, FBI: Yeah.
CUMMINGS: That indicated classified, go ahead.
COMEY: There were three e-mails that down in the body of the e- mail, in the three different e-mails, there were paragraphs and the beginning of the paragraph had a parenthesis, a capital “c” and then a parenthesis.
And that is a portion marking to indicate that.
CUMMINGS: That paragraph.
COMEY: That paragraph is classified at the confidential level, which is the lowest level of classification.
CUMMINGS: And so out of 30,000 documents, this is — you found these three markings. Is that what you’re saying?
COMEY: Three e-mails bore “c” markings down in the body. None of the e-mails had headers, which is at the top of a document that says it’s classified. Three had — within the body — the portion marking for “c.”
CUMMINGS: Thank you.
REP. JASON CHAFFETZ (R), UTAH: I thank the gentleman.
I now recognize the gentleman from Tennessee, Mr. Duncan, for five minutes.
REP. JOHN DUNCAN (R), TENNESSEEE: Thank you, Mr. Chairman.
Mr. Meadows mentioned one instance in which Secretary Clinton said that she had — that she did not mail any classified material to anyone. Actually, she said that several other times.
But it is accurate, Director Comey, that you found at least 110 instances of when she had mailed, e-mailed classified material?
COMEY: One hundred and ten that she either received or sent.
DUNCAN: Right. And it also is accurate that, quote, “Clinton’s lawyers cleaned their devices in such a way as to preclude complete forensic recovery.”
DUNCAN: And also, when she said — when Secretary Clinton said that nothing she sent was marked classified and you said in your press conference, but even if information is not marked classified in an e- mail particularly, our participants who know or should know that the subject matter is classified are still obligated to protect it.
Do you — do you feel that Secretary Clinton knew or should have known that she was obligated to protect classified information?
DUNCAN: With her legal background and her long experience in government. Also, she said at one point that she has directed all e- mails, work-related e-mails, to be forwarded to the State Department.
Is it also accurate that you discovered thousands of other e- mails that were work-related other than the 30,000 she submitted?
DUNCAN: Before I came to Congress, I spent several years as a criminal court judge. I tried several — presided (ph) over several hundred felony criminal cases. And I can assure you that I saw many cases where the evidence of criminal intent was flimsier than the evidence in this case.
But do you — do you realize or do you realize that great numbers of people across this country felt that you presented such a strong — such an incriminating case against Secretary Clinton in your press conference that they were very surprised or even shocked when you reached the conclusion to let her off?
Do you doubt that great numbers feel that way?
COMEY: No, I think so. And I understand the questions. And I wanted to be as transparent as possible. We went at this very hard to see if we could make a case. And I wanted the American people to see what I honestly believed about the whole thing.
DUNCAN: Well, do you understand as the chairman said earlier, that great numbers of people feel now that there’s one standard of justice for the Clintons and another for regular people?
COMEY: Yeah, I’ve heard that a lot. It’s not true, but I’ve heard it a lot.
DUNCAN: Well, even the Ranking Member who is here, who of course, as we understand had to defend Secretary Clinton as strongly as possible, he almost begged you to explain the gap between the incriminating case you presented and the conclusion that was reached.
Did — did that surprise you, that he felt so strongly that there was this big gap?
COMEY: No, not at all. It’s a complicated matter. It involves understanding how the Department Of Justice works across decades, how prosecutorial discretion is exercised. I get that folks see disconnections, especially when they see a statute that says gross negligence.
Well, the director just said she was extremely careless. So how is that not prosecutable? So it takes an understanding of what’s going on over the last 99 years.
What’s the precedent, how do we treat these cases — I totally I get people’s questions and I think they’re in good faith.
DUNCAN: Do you — we talk about gross negligence here and you said that Secretary Clinton was extremely careless with this classified material and how dangerous it could be, how threatening to — even to people’s lives that it could be to disclose classified material.
Do you agree that there is a very thin line between gross negligence and extreme carelessness? And would you explain to me what you consider to be that difference?
COMEY: Sure, judge — Congressman. As a former judge, you know there isn’t actually a great definition in the law of gross negligence. Some courts interpret it as close to willful, which means you know you’re doing something wrong.
Others drop it lower. My term (ph) extremely careless is trying to be kind of an ordinary person. That’s a common-sense way of describing it; it sure looks real careless to me.
The question of whether that amounts to gross negligence frankly is really not at the center of this because when I look at the history of the prosecutions and see, it’s been one case brought on a gross negligence theory.
I know from 30 years there’s no way anybody from the Department Of Justice is bringing a case against John Doe or Hillary Clinton for the second time in 100 years based on those facts.
DUNCAN: You ended your statement to Congressman Cooper a while ago saying no — saying once again that no reasonable prosecutor could have brought this case, yet you also mentioned earlier today that you had seen several of your friends and other prosecutors who have said publicly, many across this country, they would have been glad to prosecute this case.
COMEY: I smile because they’re friends and I haven’t talked to them I want to say, guys, so where were ya over the last 40 years?
Where were these cases? They just have not been brought for reasons that I said earlier. It’s a good thing the Department Of Justice worries about prosecuting people for being careless. I don’t like it.
As a citizen, I want people to show they knew they were breaking the law and then we’ll put you in jail.
DUNCAN: Of course, you know many people have been prosecuted for gross negligence by the Federal Government, by the FBI.
CHAFFETZ: The gentleman’s time has expired.
We’ll now recognize the gentleman from Virginia, Mr. Connolly, for five minutes.
REP. GERALD CONNOLLY (D), VIRGINIA: Thank you.
And welcome, Director Comey and although our politics are different, I gather you’re a Republican. Is that correct?
COMEY: I have been registered Republican for most of my adult life. Not registered any longer.
CONNOLLY: We don’t register by party in Virginia but many have suspected my politics as being Democratic. And I thank you for your integrity. As my colleague said and I said in my opening statement, your career has been characterized as speaking truth to power.
And you’re doing it again today.
Just to set the context, Director Comey, not that you’re unaware of this, today’s hearing is political theater. It’s not even the pretense of trying to get at the truth. This is the desperate attempt under a — an extraordinary set of circumstances, an emergency hearing.
I don’t know what the emergency is other than one side is about to nominate somebody who is a pathological narcissist who, you know, was talking about banning Muslims and Mexicans crossing who are all rapists and women who are pigs and terrified at the prospect of the consequences of that in the election, so let’s grab onto whatever we can to discredit or try to discredit the other nominee. Putative nominee. And you took away their only hope.
And so the theater today is actually trying to discredit you. Subtly (ph), in some cases. My friend from South Carolina uses big words like “exculpatory” and kind of goes through what a prosecutor would do. The insinuation being you didn’t do your job.
My friend from Wyoming is apparently flattered (ph) with citizens in her home state who are reading the statute that governs classification. A lot of time on the hands back there, I guess, but yeah, this is all designed to discredit your finding.
Now, the FBI interviewed Secretary Clinton, is that correct?
CONNOLLY: Did she lie to the FBI in that interview?
COMEY: I have no basis for concluding that she was untruthful with us.
CONNOLLY: Is it a crime to lie to the FBI?
COMEY: Yes, it is.
CONNOLLY: David Petraeus did lie to the FBI?
CONNOLLY: And he was prosecuted for that — well, could have been.
COMEY: Could have been. Was not for that.
CONNOLLY: Right. That’s always a judgment call.
CONNOLLY: Was she evasive?
COMEY: I don’t think the agents assessed she was evasive.
CONNOLLY: Hmm. How many e-mails are we talking about, total, universe, that were examined by your team?
COMEY: Tens of thousands.
CONNOLLY: Tens of thousands. And how many are in a questionable category that maybe could have, should have been looked at more carefully because there could be some element of classification, apparently my friend from North Carolina assumes we’re all intimately familiar with a fact if a “c” appears, it means a classification, though there seems to be some dispute about that because the State Department, as I understand it, has actually said some of those were improperly marked and shouldn’t have had the “c.”
Are you aware of that?
CONNOLLY: Yes. So could it be that in her hundred trip, four years, 100 overseas trips to 100 countries, as secretary of state trying to restore U.S. credibility that had been destroyed in the previous eight years overseas, and tens of thousands of e-mail communications, not including phone calls and classified conversation and skips and the like, that maybe the small percentage of e-mails she didn’t pay as much attention to them as maybe in retrospect one would hope she would have.
Is that a fair conclusion? Could that be a fair conclusion?
COMEY: I don’t usually deal in maybes. It’s possible.
CONNOLLY: Well, you do deal in distinguishing between willful and inadvertent.
CONNOLLY: And in this case, you concluded it has to be in the latter category. It wasn’t willful.
COMEY: We concluded there was not adequate evidence of willful conduct.
CONNOLLY: Right. So there’s no obfuscation, here, unlike in the Petraeus case, and there’s no evasion, there’s no lying. There’s no willful attempt to compromise classified material, despite the insinuations of my friends on the other side of the aisle.
And the only hope left in this political theater is to discredit you and your team in the hopes that therefore you won’t have credibility and we can revisit this monstrous crime of using a private server, that server being the server of the former president of the United States, that maybe Mrs. Clinton thought would be more secure than the leaky system at the State Department.
I yield back.
CHAFFETZ: I now recognize the gentleman from Texas, Mr. Hurd, for five minutes.
REP. WILLIAM HURD (R), TEXAS: Thank you, Mr. Chairman. Mr. Chairman, I’m offended. I’m offended by my friends on the other side of the political aisle saying this is political theater. This is not political theater. For me, this is serious.
I spent nine and a half years as an undercover officer in the CIA. I was the guy in the back allies collecting intelligence, passing it to lawmakers. I have seen my friends killed, I have seen assets put themselves in harm’s way. And this is about protecting information, the most sensitive information the American government has, and I wish my colleagues would take this a little bit more seriously.
Mr. Comey — Director Comey, excuse me. SAP. Special Access Program. You alluded to earlier that includes SCI information. Does SCI information include HUMINT and SIGINT?
HURD: HUMINT and SIGINT, Human intelligence information collected from people that are putting themselves in harm’s way to give us information to drive foreign policy. Signals intelligence, some of the most sensitive things to understand what al Qaeda is doing, what ISIS is doing.
So, the former secretary of state had an unauthorized server. Those are your words. In her basement, correct?
HURD: Who was protecting that information? Who was protecting that server?
COMEY: Well, not much. There was a number of different people who were assigned as administrators of the server.
HURD: And at least seven e-mail chains or eight that — was classified as TS/SCI?
HURD: So the former secretary of state, one of the president’s most important advisers on foreign policy and national security, had a server in her basement that had information that was collected from our most sensitive assets, and it was not protected by anyone. And that’s not a crime?
That’s outrageous. People are concerned. What does it take for someone to misuse classified information and get in trouble for it?
COMEY: It takes mishandling it and criminal intent.
HURD: And so an unauthorized server in the basement is not mishandling?
COMEY: Well, no, there is evidence of mishandling here. This whole investigation at the end focused on is there sufficient evidence of intent.
HURD: Were — was this unanimous opinion within the FBI on your decision?
COMEY: The whole FBI wasn’t involved, but the team of agents, investigators, analysts, technologists, yes.
HURD: Did you take into any consideration the impact that this precedence can set on our ability to collect intelligence overseas?
COMEY: Yes. My primary concern is the impact on what other employees might think in the federal government.
HURD: And you don’t think this sends a message to other employees that if a former secretary of state can have an unauthorized server in their basement that transmits top-secret information, that that’s not a problem?
COMEY: Oh, I worry very much about that. That’s why I talked about that in my statement, because an FBI employee might face severe discipline, and I want them to understand that those consequences are still going to be there.
HURD: Director Comey, do you have a server in your basement?
COMEY: I do not.
HURD: Does anybody in the FBI have a server in their basement? Or in their house?
COMEY: I don’t know. Not to my knowledge.
HURD: Do you think it’s likely?
COMEY: I think it’s unlikely.
HURD: I would think so, too. I would think so, too. Because I’m proud — always been proud to serve alongside the men and women that you represent.
So there was no dissenting opinion when you make this decision. It’s your job to be involved in counterintelligence as well. Right?
HURD: So that means protecting our secrets from foreign adversaries collecting them. Is that correct?
HURD: Did this activity you investigated make America’s secrets vulnerable to hostile elements?
HURD: Do you think that pattern of behavior would continue?
COMEY: I’m sorry? I missed the…
HURD: Do you think that pattern of behavior would continue?
COMEY: Would continue…
HURD: By — by our former secretary of state?
COMEY: I’m not following you. You mean if we hadn’t — if this had not come to light, you mean?
HURD: Right now. Based on what we see, do you think there’s going to be other elements within the federal government that think it’s OK to have an unauthorized server in their basement?
COMEY: They better not. That’s one of the reasons I’m talking about it.
HURD: So but — what is the ramifications of them doing that? What is the — what is — you know how is there going to be any consequences levered if it’s not being levered here? Because indeed, this is — you’re setting a precedent.
COMEY: The precedent — I want people to understand, again, I only am responsible for the FBI, that there will be discipline from termination to reprimand and everything in between for people who mishandle classified information.
HURD: Director Comey, I’m not a lawyer, and so I may misstate this. Is there such a thing as the case of first impression, and why was this not possibly one of those?
COMEY: There is such a thing, which just means the first time you do something. The reason this isn’t one of those is that’s just not fair. That would be treating somebody differently because of their celebrity status or because of some other factor that doesn’t matter. We have to treat people — the bedrock of our system of justice, we treat people fairly, we treat them the same based on their…
HURD: And that person mishandling the most sensitive information that this government can collect is — is not fair? It’s not fair to punish someone who did that?
COMEY: Not on these facts. If would be fair — if that person worked for me, it would be fair to have a robust disciplinary proceeding. It’s not fair to prosecute that person on these facts.
CHAFFETZ: I thank — thank…
HURD: Mr. Chairman, I yield back the time I do not have.
CHAFFETZ: Thank the gentleman. I will now recognize the gentleman from Pennsylvania, Mr. Cartwright, for five minutes.
REP. MATT CARTWRIGHT (D), PENNSYLVANIA: Thank you, Mr. Chairman. I’d like to open by acknowledging my colleague from North Carolina, Mr. Meadows — here he comes back in the room — for — for acknowledging your integrity, Director Comey.
I think bipartisan sentiments like that are few and far between around here and I appreciate Congressman Meadows’ remark. You are a man of integrity, Director Comey. It is troubling to me that that remark from Congressman Meadows is not unanimous at this point. It used to be.
Just weeks ago our chairman, Representative Chaffetz, stated on national TV that Republicans, quote, “believe in James Comey,” unquote. He said this, and I quote, “I do think that in all of the government, he is a man of integrity and honesty. His finger’s on the pulse of this. Nothing happens without him. And I think he is going to be the definitive person to make a determination or a recommendation.” But just hours after your actual recommendation came out, Chairman Chaffetz went on TV and accused you of making a, quote, “political calculation.”
And then our speaker of the House weeks ago referring to you, Director Comey, said, “I do believe that his integrity is unequaled.” So your integrity was — it was unanimous about your integrity before you came to your conclusion, but after, not so much. That’s troubling.
And I want to give you a chance, Director Comey, how do you respond to that? How important to you is maintaining your integrity before the nation?
COMEY: I think the only two things I have in life that matter are the love of my family and friends and my integrity. So I care deeply about both.
CARTWRIGHT: All right. Now Director Comey, you discussed your team a little bit and they deserve a lot of credit for all of the hard work and effort that went into this investigation. And I think you just said that they were unanimous that everyone who looked at this agreed that no reasonable prosecutor would bring a case. Am I correct in that?
CARTWRIGHT: How many people were on this team?
COMEY: It changed at various times, but somewhere between 15 and 20. Then we used a lot of other FBI folks to help from time to time.
CARTWRIGHT: How many hours were spent on this investigation?
COMEY: We haven’t counted yet. They — they — I said to them, they moved — they put three years of work into 12 calendar months.
CARTWRIGHT: And how many pages of documents did the FBI review in this investigation?
COMEY: Thousands and thousands and thousands.
CARTWRIGHT: And the agents do the document review, were they qualified or were they unqualified?
COMEY: They were an all-star team. They are a great group of folks.
CARTWRIGHT: How about Secretary Clinton? Did she agreed to be interviewed?
CARTWRIGHT: Come in voluntarily without the need of a subpoena?
CARTWRIGHT: Was she interviewed?
CARTWRIGHT: Was she interviewed by experienced, critical, veteran agents and law enforcement officers or by some kind of credulous, gullible, newbies doing their on-the-job training, Director?
COMEY: She was interviewed by the kind of folks the American people would want doing the interview. Real pros.
CARTWRIGHT: All right. You were asked about markings on a few documents. I have the manual here. Marking classified national security information. And I don’t think you were given a full chance to talk about those three documents with the little “c”s on them.
Were they properly documented? Were they properly marked according to the manual?
CARTWRIGHT: According to the manual, and I ask unanimous consent to enter this into the record, Mr. Chairman.
CHAFFETZ: Without objection…
CARTWRIGHT: According to the manual, if you’re going to classify something, there has to be a header on the document. Right?
CARTWRIGHT: Was there a header on the three documents that we’ve discussed today that had the little “c” in the text someplace?
COMEY: No. They were three e-mails. The “c” was in the body, in the text, but there was no header on the e-mail or in the text.
CARTWRIGHT: So if Secretary Clinton really were an expert at what’s classified and what’s not classified and were following the manual, the absence of a header would tell her immediately that those three documents were not classified. Am I correct in that?
COMEY: That would be a reasonable inference.[11:55:00]
CARTWRIGHT: All right. I thank you for your testimony, Director. I yield back.
CHAFFETZ: I thank the gentleman. Will now recognize the gentleman from Colorado, Mr. Buck, for five minutes.
DR. KEN BUCK (R), COLORADO: Good morning, Director Comey.
COMEY: Morning, sir.
BUCK: Thank you for being here. I also respect your commitment to law and justice and your career. And I — first question I want to ask you, is this hearing unfair? Has it been unfair to you?
BUCK: Thank you. One purpose of security procedures for classified information is to prevent hostile information — hostile nations from obtaining classified information. Is that fair?
BUCK: And do — did hostile nations obtain classified information from Secretary Clinton’s servers?
COMEY: I don’t know. It’s possible, but we don’t have direct evidence of that. We couldn’t find direct evidence.
BUCK: I want to — without making this a law school class, I want to try to get into intent. There are various levels of intent in the criminal law, everything from knowingly and willfully doing something all the way down, to strict liability. Would you agree with me on that?
BUCK: And in Title 18, most of the — criminal laws in Title 18 have the words “knowingly” and “willfully” in them and that is the standard typically that United States attorneys prosecute under.
COMEY: Most do. Unlawfully, knowingly, willfully is our standard formulation for charging a case.
BUCK: And there are also a variety of others between the knowingly and willfully standard and the strict liability standard. And in many, like environmental crimes, have a much lower standard because of the toxic materials that are at risk of harming individuals. Is that fair?
COMEY: That’s correct.
BUCK: Okay. Let’s talk about this particular statute, 18 U.S.C. 1924. I take it we could all agree — you and I can agree on a couple of the elements. She, Secretary Clinton was an employee of the United States.
BUCK: And as a result of that employment, she received classified information.
BUCK: And there is no doubt about those two elements. Now I don’t know whether the next element is one element or two, but it talks about knowingly removed such materials without authority and with the intent to retain such material at an unauthorized location.
So I’m going to treat those as two separate parts of the intent element. First of all, do you see the word “willfully” anywhere in this statute?
COMEY: I don’t.
BUCK: And that would indicate to you that there is a lower threshold for intent?
COMEY: No, it wouldn’t.
COMEY: Because we often — as I understand, the Justice Department’s practice and judicial practice will impute to any criminal statute at that level with a knowingly also requirement that you know that you’re involved in criminal activity of some sort. A general mens rea requirement.
BUCK: So — and you would apply that same standard to environmental (inaudible)?
COMEY: No, if it specifically says it is a negligence-based crime, I don’t think a judge would impute that.
BUCK: But — but Congress specifically omitted the word “willfully” from this statute, and yet you are implying the word willfully in the statute. Is that fair?
COMEY: That’s fair.
BUCK: Okay. So what this statute does say is “knowingly removed such materials without authority.” Is it fair that she knew that she didn’t have authority to have this server in her basement?
COMEY: Yes, that’s true.
BUCK: And she knew that she was receiving materials, classified information, in — in the e-mails that she received on — on her BlackBerry and other devices.
COMEY: I can’t answer — I’m hesitating as a prosecutor because it’s always — to what level of proof. I do not believe there’s evidence beyond a reasonable doubt that she knew she was receiving classified information in violation of the requirements.
BUCK: But that’s not my question.
COMEY: (Inaudible) evidence of that.
BUCK: That’s not my question. My question, in fairness, is did she know that she was receiving information on the servers at her location?
COMEY: Oh, I’m sorry. Of course, yes. She knew she was using her e-mail system.
BUCK: And as secretary of state, she also knew that she would be receiving classified information.
COMEY: Yes, in general.
BUCK: Okay. And did she then have the intent to retain such material at an unauthorized location? She retained the material that she received as secretary of state at her server in her basement and that was unauthorized.
COMEY: You’re asking me did she have the — I’m going to ask you the burden of proof question in a second. But did she have the intent to retain classified information on the server or just to retain any information on the server?
BUCK: Well, we’ve already established that she knew as secretary of state that she was going to receive classified information in her e- mails. And so did she retain such information that she received as secretary of state on her servers in her basement?[12:00:02]
COMEY: She did in fact — there is, in my view, not evidence beyond certainly probable cause. There’s not evidence beyond a reasonable doubt that she knew she was receiving classified information or that she intended to retain it on her server.
There’s evidence of that but when I said there’s not clear evidence of intent, that’s what I meant. I could not, even if the Department Of Justice would bring that case, I could not prove beyond a reasonable doubt those two elements.
BUCK: Thank you very much.
CHAFFETZ: Thank the gentleman.
Now, we’ll go to the gentlewoman from Illinois, Ms. Duckworth for five minutes.
DUCKWORTH: Thank you, Mr. Chairman. When I first entered Congress three years ago, like many freshmen members, I — I’m like many freshmen members. I actually sought out this committee.
I wanted to be on this committee because I wanted to tackle the challenges of good government, like working to eliminate proper payments or prevent wasteful programs duplication. Before I joined Congress, I had the privilege of serving in the army for 23 years and I — you know, and as I tackled those challenges and in the challenges of helping reduce veteran’s homelessness, I witnessed firsthand the real world importance of improving and streamlining government operations.
How even the best policies in the world will not work without proper implementation. And so when it comes to implementing true and lasting reforms that will make sure that electronics records and other records and the history of our great nation are preserved for future generations, I’ve done my best to approach this goal seriously.
I’m focused on making sure that our nation sustains a long-term commitment to modernizing our federal records keeping (ph) system from improving the laws governing what needs to be collected to ensuring our civil servants across government have the necessary tools to achieve what should be nonpartisan and a shared goal.
With respect to examining the tough lessons learned from numerous record keeping incidents that our committee has dealt with which transcend any one agency or any single administration, my mission is clear. Make sure we here in Congress move beyond partisan politics and engage in the serious hard work of ensuring that the laws written in an era of pen and paper are overhauled to meet the digital challenges of the 21st century.
Dr. Comey, the Office of Management and Budget and the national archives and records administration released a memorandum known as “the managing government records directive” in 2012.
And this directive states, and I quote, “by December 31st, 2016, federal agencies will manage both permanent and temporary e-mail records in an accessible electronic format. Federal agencies must manage all e-mail records in an electronic format. E-mail records must be retained in an appropriate electronic system that supports records management and litigation requirements which may include preservation in place models, improving the capability to identify, retrieve and retain the records as long as they are need.”
As a director of a bureau who deals with sensitive information on a daily basis, do you believe that this directive is necessary and attainable for agencies across the board within that four-year time frame from August 2012 to December 2016?
COMEY: I don’t know enough to say both. I can say it’s certainly necessary. I don’t know whether it’s achievable.
DUCKWORTH: OK are you familiar with the capstone approach? That’s the federal — it’s approach it says that federal agencies should save all e-mails for select senior-level employees and that the e-mails of other employees will be archived for a temporary period set by the agency so that senior employees’ e-mails are kept forever and those by other lower-level employees are actually archived for short period — a shorter period.
COMEY: I’m aware generally. I know what applies to me and when I was Deputy Attorney General of the Bush Administration.
DUCKWORTH: Yes in fact, I understand that FBI is currently actively using this approach according to the agencies — senior agency official for records for records management F.Y. ’15 annual report.
My understanding that capstone approach is aimed at streamlining the record-keeping process for e-mails and reducing the volume of records that an agency has to maintain. Nearly all agencies will be required to comprehensively modernize their approach to managing federal records in the near future.
As the head of a component agency, Director Comey, within the Department of Justice which appears to be a leader in adopting the innovative capstone approach across the agency, would you agree with respect to instituting foundational reforms that will strengthen records preservation, the capstone approach used by DOJ should be accelerated and rode out across the Federal Government?
COMEY: I think we’re doing it in a pretty good way. I don’t know — I’m not an expert enough to say whether anybody should do it the way we do it, honestly.
DUCKWORTH: Are you satisfied with the way that you’re doing it?
COMEY: I am but I don’t want to sound overconfident because I’m sure there’s a why we can do it better but I think we’re doing it in a pretty good way.
DUCKWORTH: Do you have any one person within the FBI that continually reviews the — your record-keeping and also — or do they report directly to you, as well as — is there a periodic review of — of how you’re implementing this process?
COMEY: Yes. We have an entire division devoted to records management that assistant director reports up to the deputy director who reports to me. We have — it’s an enormous operation as you might imagine, requiring constant training.
And so I — that’s what I mean when I say I think we’re doing it in a pretty good way. And we have record marking tools. We prompt with dialogue boxes requiring employees to make a decision, what’s the nature of this record you’re creating now and where should it be stored?
So I think we’re doing it in a pretty good way. That’s why I say that.
DUCKWORTH: Have you seen that in any of the other agencies that you have interacted with or have you had a chance — an occasion to look at what some of the other agencies are doing with their sensitive and classified information?
Are they following the same technique as you are doing in the FBI?
COMEY: I don’t know enough to say. I personally.
DUCKWORTH: OK. I am out of time but thank you.
CHAFFETZ: Thank the gentlewoman.
We’ll now recognize the gentleman from Michigan, Mr. Walberg, for five minutes.
WALBERG: I thank the chairman.
And thank you, Director Comey, for being here.
Mr. Chairman, thank you for holding this hearing.
And Director Comey for making it very clear that you believe we’ve done this respectfully with good intention. And I wish some of my colleagues that had instructed us on our intent were here. They have a great ability to understand intent better than I guess the director of the FBI.
But it is an intent that’s important here, that we understand we are oversight and government reform committee. And if indeed, the tools aren’t there to make sure that our country is secure and that officials at the highest levels in our land don’t have the understanding on what it takes to keep our country secure, that we do the necessary government reform to put laws in place that will be effective and will meet the needs of distinguished agencies and important agencies like the FBI.
So thank you, Mr. Chairman, for doing this hearing. It’s our responsibility to do oversight and reform as necessary.
Going back, Director Comey, to paraphrase the Espionage Act, people in the 7th district of Michigan understand it from this perspective and common sense. What it says, that whoever being entrusted with information related to national defense through gross negligence permits the information to be removed from its proper place in violation of their trust shall be fined or imprisoned under the statute.
There doesn’t seem to be a double standard there. It doesn’t express intent. You’ve explained your understanding of why intent is needed and we may agree or disagree on that.
But the general public looking at that statute says it’s pretty clear. Question I would ask, Director Comey, what’s your definition of extremely careless, if you could go through that?
COMEY: I intended it as a common-sense term. It’s one of those kind of you know it when you see it sort of things. Somebody who is — should know better, someone who is demonstrating a lack of care that strikes me as there’s ordinary accidents and then there is just real sloppiness.
So I think of that as kind of real sloppiness.
WALBERG: So you stated you had found 110 e-mails on Secretary Clinton’s server that were classified at the time they were sent or received. Yet Secretary Clinton has insisted for over a year, publicly, that she never sent or received any classified e-mails.
The question I have from that, would it be difficult for any Cabinet- level official — specifically, any Cabinet official, let alone one who is a former White House resident or U.S. Senator, to determine if information is classified?
COMEY: Would fit be difficult?
WALBERG: Would it be difficult?
COMEY: That’s hard to answer in the abstract. It would depend upon the context in which they are hearing it or seeing it. Obviously, if it’s marked, which is why we require markings, it’s easy.
It’s too hard to answer because there are so many situations you might encounter it.
WALBERG: But with the — the training that we receive and certainly a secretary Of state would receive or someone who lives in the White House, that goes a little above and beyond just the common sense individual out there trying to determine.
Knowing that classified information will be brought and to remove to an unauthorized site ought to cause a bit of pause applause there, shouldn’t it?
COMEY: Yeah and if you’re a government official, you should be attentive to it because you know that the matters you deal with could involve sensitive information. So sure.
WALBERG: So Secretary Clinton’s revised statement she never knowingly sent or received any classified information is probably also untrue.
COMEY: Yeah, I don’t want to comment on people’s public statements.
We did not find evidence sufficient to establish that she knew she was sending classified information beyond a reasonable doubt to meet the intent standard.
Like I said, I understand why people are confused by the whole discussion. I get that. But you know what would be a double standard? If she were prosecuted for gross negligence.
WALBERG: But your statement on Tuesday said there is evidence to support a conclusion that any reasonable person in secretary Clinton’s position should have known that an unclassified system was no place for the conversation.
COMEY: I stand by that.
WALBERG: Now that’s very clear.
COMEY: That’s the definition of carelessness, of negligence.
WALBERG: Which happened.
COMEY: Oh, yeah.
WALBERG: As a result of our secretary of state’s — former secretary of state’s decisions.
WALBERG: Is it your statement then before this committee that Secretary Clinton should have known not to send classified material, and yet she did?
COMEY: Certainly, she should have known not to send classified information. As I said, that’s the definition of negligent. I think she was extremely careless. I think she was negligent. That, I could establish. What we can’t establish is that she acted with the necessary criminal intent.
WALBERG: Do you believe that the — that since the Department of Justice hasn’t used the statute Congress passed, it’s invalid?
COMEY: No. I think they are worried that it is invalid, that it will be challenged on Constitutional grounds, which is why they’ve used it extraordinarily sparingly in the decades.
WALBERG: Thank you. I yield back.
CHAFFETZ: I thank the gentleman. We’ll now go to — I’ll recognize Mr. Lieu of California for five minutes.
LIEU: Thank you, Mr. Chair. As I read some of my Republican colleagues’ press statements and as I sit here today, I am reminded of that quote from Macbeth, “full of sound and fury, signifying nothing.” I’ve heard some sound and fury today from members of the committee. And the reason they largely significant nothing is because of two fundamental truths that are self-evident. The first of which, none of the members of this committee can be objective on this issue. I can’t be objective. I’ve endorsed Hillary Clinton for president. As have the Democratic members of this committee.
My Republican colleagues can’t be objective. They oppose Hillary Clinton for president. Which is why we have you. You are a non- partisan career public servant that’s served our nation with distinction and honor. And not only can you be objective, it is your job to be objective to apply the law fairly and equally regardless much politics.
I think it would be important for the American people to get a fuller appreciation of your public service, so let me ask you, before your FBI director, how many years did you serve as a federal prosecutor?
COMEY: I think 15.
LIEU: For a period of time, you were at Columbia Law School as a scholar and you specialized in national security law. Is that correct?
COMEY: Sometimes I fantasize I still am.
LIEU: All right. Thank you. When you served in the Republican administration of President George W. Bush, you were then the second- highest ranking member of the Department of Justice. Is that right?
COMEY: Yes. President Bush appointed me to be U.S. Attorney in Manhattan and then the No. 2 in the Department of Justice.
LIEU: When you were confirmed for the FBI director position, the vote was 93-1. Is that correct?
COMEY: That’s correct.
LIEU: With that strong bipartisan support, it is not surprising that Senator Grassley, a Republican, said during your confirmation, and I quote, “Director Comey has a reputation for applying the law fairly and equally regardless of politics.”
In this case, did you apply the law fairly, equally regardless of politics?
LIEU: Did you get any political interference from the White House?
LIEU: Did you get any political interference from the Hillary Clinton campaign?
LIEU: One of the reasons you are appointed to a fixed term of ten years, a very long term, is to help insulate you from politics. Isn’t that right?
COMEY: That’s correct.
LIEU: The second fundamental truth today about this hearing is that none of the members of this committee have any idea what we’re talking about because we have not reviewed the evidence personally in this case.
When I served on active duty in the U.S. Air Force in the 1990s, one of my duties was a prosecutor. One of the first things I learned as a prosecutor is it is unprofessional and wrong to make allegations based on evidence that one has not reviewed.
So let me ask you, has any member of this committee, to the best of your knowledge, reviewed the 30,000 e-mails at issue in this case?
COMEY: I don’t know. Not to my knowledge.
LIEU: Has any member of this committee sat through the multiple witness interviews that the FBI conducted in this case?
COMEY: No. That I know. No.
LIEU: Has any member of this committee received any special information about the files that you kept or other FBI agents kept on this case?
COMEY: Not to my knowledge.
LIEU: Now let’s do a little bit of math here. 1 percent of 30,000 e- mails would be 300 e-mails. Is that right?
COMEY: I think that’s right.
LIEU: 30 e-mails would be one-tenth of 1 percent. And three e- mails would be one one-hundredth of 1 percent of 30,000. Right?
COMEY: I think that’s right.
LIEU: So of those three e-mails, one one-hundredth of 1 percent of 30,000, they bore these tiny little classified markings which is, as you describe, a “c” with parentheses. Correct?
LIEU: It’s certainly (ph) possible that a busy person who has sent and received over 30,000 e-mails just might miss this marking of a “c” with parentheses. It is possible, correct?
LIEU: So let me now just conclude by stating what some of my colleagues have, which is, there is just the strongest whiff of hypocrisy going on here. The American public might be interested in knowing that all members of Congress receive security clearances just for being a member of Congress.
We get to have private e-mail servers. We get to have private e- mail accounts. We can use multiple devices. We can take devices overseas.
And really, at the end of the day when the American people look at this hearing, they need to ask themself (ph) this question — do they trust the bias partisan politicians on this committee who are making statements based on evidence we have not reviewed, or do they trust the distinguished FBI director? I would trust the FBI Director.
I yield back.
CHAFFETZ: Thank you. I will now recognize the gentleman from Florida, Mr. Mica, for five minutes.
MICA: Thank you, Mr. Chairman. Director, how long did you investigate this matter?
COMEY: Just about a year.
MICA: A year. And do you believe you conducted a legitimate investigation?
COMEY: Yes, sir.
MICA: And — it was a legitimate subject that was something that you should look into? You had that responsibility, is that correct?
MICA: We have a responsibility to hear from you on the action that you took. This weekend — well, tomorrow, we’ll go back to our districts and we have to explain to people, I’ll be at (ph) a couple of cafes where I see folks and meetings and they’re going to ask a lot of questions about what took place.
Have you seen the Broadway production Hamilton?
COMEY: Not yet. I’m hoping to.
MICA: I haven’t either. But I understand it won the choreography Tony Award. I think you and others know that. The problem I have in explaining to my constituents in what’s come down, it almost looks like a choreography.
Let me just go over it real quickly with you. Last Tuesday — not this week — one week ago, former President Clinton meets with the attorney general in Phoenix.
The next Friday, last Friday, Mrs. Lynch, the AG, says she’s going to defer to the FBI on whatever you came up with.
On Saturday morning I saw the vans pull up. This is this past Saturday. And you questioned Secretary Clinton for three hours? Is that — I guess that’s correct?
COMEY: Three and a half.
MICA: OK. And then on Tuesday morning, the morning after July 4th, we watched in our office — I had my interns, I said come in, we’ve got the FBI director, let’s hear what he has to say. We’re all kind of startled. You basically said you were going to recommend not to prosecute. Correct?
COMEY: Yes, sir.
MICA: And then Tuesday — well, we had President Obama and Secretary Clinton arrive in Charlotte at 2:00 and shortly thereafter we had the attorney general as closing the case.
This is rapid fire. I mean, now, my folks think that there is something fishy about this. I’m not a conspiracy theorist, but there are a lot of questions on how this came down.
I have questions about how this came down. Did you personally interview the secretary on Saturday morning?
COMEY: I didn’t personally, no.
MICA: How many agents did?
COMEY: I think we had five or six.
MICA: Did you talk to all of those agents after the interview?
COMEY: I did not speak to all of them, no.
MICA: Did she testify or talk to them under oath?
MICA: She did not. Well, that’s a problem. But…
COMEY: No — it’s still a crime to lie to us.
MICA: I know it is. Do you have a transcript of that — that..
COMEY: No, we don’t record our…
MICA: Do you have a 302 — I guess it’s called…
COMEY: I do. I don’t have it with me, but I do.
MICA: Did you read it?
MICA: You did? Can we get a copy of it since the case is closed?
COMEY: I don’t know the answer.
MICA: I would like a copy of that provided to the committee. I would like also for the last 30 days any communications between you or any agent or any person in the FBI with the attorney general or those in authority in the Department of Justice on this matter. Could you provide us with that?
COMEY: We’ll provide you with whether we can under the law and under our policy. It would actually be easy in my case.
MICA: You see the problem that I have though, is I have to go back and report to people what took place.
MICA: Now, did you write the statement that you gave on Tuesday?
MICA: You did. And did you — you said you didn’t talk to all of the agents. But all of the agents, did they meet with you and then is that the group that said that we all vote to not recommend prosecution?
COMEY: I did not meet with all of the agents. I’ve met with — I guess I’ve — I’ve met with all of them…
MICA: But we’re getting the word that it was like unanimous out of FBI that we don’t prosecute.
COMEY: What’s your question, Congressman?
MICA: Well, again, I want to know who counseled you. You read their summary. OK, you — she was not under oath. And it appears — members have cited here where she lied or misled to Congress which will lead now to the next step of our possibly giving you a referral on this matter. You’re aware of that?
COMEY: Yes, we — someone mentioned that earlier.
MICA: And that probably will happen. Thank you for shedding some light on what took place.
COMEY: Can I — Mr. Chairman, can I respond just very briefly?
CHAFFETZ: Go ahead.
COMEY: I hope what you’ll tell the folks in the cafe is, is look me in the eye and listen to what I’m about to say. I did not coordinate that with anyone. The White House, the Department of Justice, nobody outside the FBI family had any idea what I was about to say. I say that under oath, I stand by that. There was no coordination, no –there was an insinuation what you were saying that I don’t mean to get strong in responding but I want to make sure I was definitive about that.
MICA: Thank you, sir.
CHAFFETZ: Thank you.
We’ll now recognize the gentlewoman from the Virgin Islands. Ms. Plaskett, for five minutes.
PLASKETT: Thank you, Mr. Chairman.
And thank you all for being here.
Director Comey, I would rather be here talking with you about the FBI’s investigation and their resources to those individuals who are acting under color of law who’ve apparently committed egregious violations in the killings that we’ve seen in the recent days.
But instead, Mr. Chairman, I’m sitting here and I’ve listened patiently as a number of individuals have gone on national TV and made accusations against Director Comey, both directly and indirectly, because he recommended against prosecution based upon facts.
I’ve listened just very recently here in this hearing, as my esteemed colleague from Florida tries to insinuate the condensation of an investigation into a week that actually occurred over a much, much longer period of time.
And using that condensation and conspiracy theory to say that there’s some orchestration. And that they have accused Mr. Director Comey of basing his decision on political considerations rather than the facts.
I’ve heard chuckles and laughter here in this hearing and I don’t think there’s anything to be smiling or laughing about. Because I want to say something to those individuals who are chuckling and laughing and making attacks on Director Comey for doing his job.
You have no idea who you’re talking about. Your accusations are completely off base, utterly offensive to us as American people. I know this because I’ve had the honor of working for Director Comey during my own service at the Department Of Justice.
From 2002 to 2004, I served as Senior Counsel to the Deputy Attorney General. I worked with both director attorney — the Deputy Attorney General, Larry Thompson, and Deputy Attorney General Jim Comey when he became deputy as a staff attorney.
And I know from my own experiences that Director Comey is a man of impeccable integrity. There are very few times when you as an attorney or as an individual can work with individuals or a gentleman who is completely that.
Someone who is above the fray. Anyone who suggests or implies that he made his recommendations on anything but the facts simply does not know James Comey. We’ve used the term no reasonable prosecutor. Well, I know that James Comey doesn’t act as what a reasonable prosecutor would do because he is the unyielding prosecutor.
He is the prosecutor who does what is politically not expedient for himself, his staff, but for the law. And I’m not the only person in this hearing, in this committee, who’s worked with Director Comey or for him.
Representative Gowdy himself also commended Director Comey and he said this, and I quote, “I used to work with him. I think Comey is doing exactly what you want. He’s doing a serious investigation behind closed doors away from the media’s attention and I’m going to trust him until I see a reason not to.”
Representative Gowdy referred to Director Comey as honorable and apolitical. He said this is exactly what you want in law enforcement. Well, that’s exactly what you want in law enforcement until the decision is not the decision that you want.
Director Comey, Chairman Chaffetz, as it was said by one of my colleagues, went on television and accused you of making quote a “political calculation.” He said your recommendation was nothing more than quote, “a political determination in the end.”
I’m gonna ask you, how do you respond to that? Were your actions in any way, shape or form governed by political consideration?
COMEY: No, not in any way.
PLASKETT: And did anyone with Secretary Clinton’s campaign or the administration influence your recommendation for political reasons?
COMEY: No, they didn’t influence it in any way.
PLASKETT: I’m going to take you at your word because I know and those who will go through the record of your long tenure as a career prosecutor and they look at examples, we’ll see that you have taken decisions that have not been that.
Which your supervisors, which the president, which others have wanted you to take. As a fellow prosecutor who believed that the facts must come above politics, I’m thankful that we have you.
And Director Comey, I want to thank you for your service to our country. And you have our support. We would like to see as much documents and I’m grateful that you want to keep the transparency so that the American public can understand the difference between what they hear in the media and the elements of a crime necessary for criminal prosecution.
CHAFFETZ: Thank the gentlewoman.
We’ll now recognize the gentleman from Texas, Mr. Farenthold, for five minutes.
FARENTHOLD: Thank you very much.
Director Comey, I want to talk a little bit about cyber security. State Department’s Inspector General reported (ph) detailed instances of multiple attacks on Secretary Clinton’s computer, as well as her replying to suspicious e-mail from the personal account of Under Secretary Of State.
Director, you said that hostile actors (ph) successful gained access to the commercial e-mail accounts of people Secretary Clinton regularly communicated with. In the case of the Romanian hacker Guccifer, according to accessing Sidney Blumenthal’s account — and you know that’s been public, for some time.
During your investigation, were there other people in the State Department or that regularly communicated with Secretary Clinton that you can confirm were successfully hacked?
FARENTHOLD: And were these folks that regularly communicated with the secretary?
FARENTHOLD: And were you able to conclude definitively that the attempted hacks referenced in the I.G. report were not successful?
COMEY: We were not able to conclude that they were successful. I think that’s the best way to say it.
FARENTHOLD: All right, well while you said that given the nature of Clinton’s server, it would be unlikely to see evidence one way or the other whether or not it had been successful hacked.
How many unsuccessful attempts did you uncover, did you find any there?
COMEY: There were unsuccessful attempts. I don’t know the number off top of my head.
FARENTHOLD: Do you have an idea — were they from foreign governments? Where’d they come from?
COMEY: I want to be careful what I say in an open setting and so I — we can give you that information but I don’t want to give the — any foreign governments knowledge of what I know, so there…
FARENTHOLD: But you — would you be so far as to say if they probably weren’t American high school students fooling around?
COMEY: Correct, it was not limited to criminal activity.
FARENTHOLD: During your investigation, did you or anyone in the FBI interview the hacker Guccifer?
FARENTHOLD: And he claimed he gained access to Sid Blumenthal’s e- mail account and traced them back to Clinton’s private server. Can you confirm that Guccifer never gained access to her server?
COMEY: Yeah he did not. He admitted that was a lie.
FARENTHOLD: All right, well, at least that’s good to hear.
All right, Section 793 of Title 18 in the United States Code makes it a crime to allow classified information to be stolen through gross negligence.[12:30:05]
FARENTHOLD: Were you to discover that hostile actors had actually gotten into Secretary Clinton’s e-mail, would that have changed your recommendation with respect to prosecuting her?
COMEY: Unlikely, although we didn’t consider that question because we didn’t have those facts.
FARENTHOLD: All right. I want to go back to the question of intent real quick, for just a second.
I’m a recovering attorney. It’s been decades since I actually practiced law. But you kept referring to she had to know it was illegal to have the requisite criminal intent. I was always taught in law school, and I don’t know where this changed, that ignorance of the law was no excuse. If I’m driving a long at 45 miles and hour and didn’t see the 35 mile and hour speed limit, I was still intentionally speeding, even though I didn’t know it.
Now, I might not have had the requisite criminal intent if maybe my accelerator were jammed or something like that, but even though I didn’t know the law was 35, I was driving 45, I’m going to get a ticket. And I’m probably going to be prosecuted for that.
So, how can you say ignorance of the law is an excuse in Ms. Clinton’s case?
COMEY: Well, the comparison to petty offenses, I don’t think is — you spoke about the question of — ignorance of the law is no excuse, but here’s the distinction. You have to have general criminal intent. You don’t need to know what particular statute you’re violating, but you must be aware of the generally wrongful nature of your conduct…
FARENTHOLD: We — now, so Congress when they enacted that statute said “gross negligence.” That — that doesn’t say intent. So what are we going to have to enact to get you guys to prosecute something based on negligence or gross negligence? Are we going to have to add, “and oh by the way, we don’t mean — we really do mean you don’t have to have intent there”?
COMEY: That’s a conversation for you all to have with the Department of Justice. But it would have to be something more than the statute enacted in 1917. Because for 99 years, they’ve been very worried about its constitutionality.
FARENTHOLD: All right. Well, I think that’s something this committee and Congress as a whole, the Judiciary Committee, that Mr. Chaffetz and I also sit on, will be looking at it.
And I was on television this morning. And I just want to relay a question that I received from a caller into that television commercial (sic). It’s just real simple: Why should any person follow the law if our leaders don’t? And we can argue about intent or not, but you laid out the fact that she basically broke the law, but you couldn’t prove intent.
Maybe I’m putting words in your mouth, but I do want to know why — why any person should follow the law if our leaders don’t have to. Maybe that’s rhetorical, but I’ll give you an opportunity to comment on that.
COMEY: That’s a question I’m no more qualified to answer than any American citizen. It’s an important question. In terms of my work and my world, my folks would not be — one of my employees would not be prosecuted for this. They would face consequences for this. So the notion that it’s either prosecute or you walk around, you know, smiling all day long is just not true for those people who work for the government.
The broader question is one for a democracy to answer. It’s not for me.
FARENTHOLD: And I guess the ultimate decision as to whether or not Mrs. Clinton works in government or not is not in — is in everybody’s hands.
CHAFFETZ: I thank the gentleman.
FARENTHOLD: I yield back.
CHAFFETZ: We’ll now recognize the gentleman from Pennsylvania, Mr. Boyle, for five minutes.
BOYLE: Thank you, Mr. Chairman.
And thank you, Director Comey, for appearing especially on such short notice.
I want to share with you actually something a friend of mine was expressing when watching your press conference 48 hours ago. And this is someone who’s not in any way political. In fact, probably typical of most American citizens today in being depressed about the remarkable level of cynicism we have in our government, that specifically those of us who are in government make decisions first and foremost because of the party hat we wear and not necessarily based on the facts and the evidence. And he texted me after watching your 15-minute presentation, “Oh, it’s nice to see a real pro; you can tell that he would make the decision based on the facts and the evidence and not what party he wears.”
I think that’s so important if we’re ever going to get to a place in this country where we restore some of the faith that we had in government. If you look at the poll numbers from the 1940s and 1950s, and you look at faith in government among the American public, and you look at those numbers today, the numbers today are anemic. They’re nowhere near the levels that they were decades ago.
So for that, I want to say thank you, and I think that many citizens have the same — the same impression.
When I first met you a couple of years ago at a weekend session in Colonial Williamsburg, you might remember that we had a discussion about my biggest concern, frankly, facing the security of the American people. And that is the possibility of a lone-wolf terrorist, someone becoming self-radicalized and acting based on that. We had an exchange that I’ll keep private, but I think I can characterize that you share my concern.
I’m just thinking for the last two-and-a-half hours that we’ve been here, we’ve had the FBI director asking questions on this matter, when frankly I would have much rather your time spent dealing with the potential lone-wolf terrorists and other coordinated facts that we face.
But since this is the Oversight and Government Reform Committee, trying to find something that we can now take and possibly use in a systemic way, not just the celebrity of Secretary Clinton and the fact because it involves her, let’s face it, that’s the reason why we’re here.
But I want to try to take something out of this very expensive and long investigation and try to use it in a productive way toward reforming government that possibly we can get something good out of it. So toward that end, I’m really concerned about this issue of up- classification because it seems as if, and I was not aware of this until the investigation, there is quite a strong discrepancy between not just former Secretary Clinton, but even former Secretary Powell, what he thinks should be classified and then what is classified after the fact.
And I think you’d, if I’m right, there were some 2,000 e-mails that were up-classified. I was wondering if you could — you could speak to that.
COMEY: It actually was not a concept I was real familiar with before this. It’s the notion that something might not have been classified at the time, but that in hindsight, as a government agency considers releasing it, they raise the classification level to protect it, because it would — it’s a candid assessment of a foreign leader or something like that. I think it is largely a State Department thing because their diplomats will often be conversing in an unclassified way, that when they look at releasing it in response to a FOIA request, they think it ought to be protected in some fashion.
But honestly, those — I kind of pushed those to the side. The important thing here was what was classified at the time. That’s what matters.
BOYLE: Right. And that for a law enforcement official matters. But I’m just wondering if you could share with us any of your impressions about a system that exists where there is such gray area and discrepancy in what is classified and what’s not. And if you or your agents had any suggestions for us either in Government Reform or I happen to be on the Foreign Affairs Committee that has oversight of State Department. Do you believe that this is a matter that we should take up where there is such discrepancy on what’s classified and what’s not classified?
I even — I think of one example. Ambassador Ross put something in a book that wasn’t classified, and then was up-classified after the book came out. What — what good does that do us as a country in terms of trying to protect the intelligence of the United States?
COMEY: I’m not an expert in this up-classification business, but I do suspect it will be a fertile ground for trying to figure out whether there are ways to do it in a more predictable, reliable way.
BOYLE: Yeah. Well, thank you again for your service, and I yield back my time.
CHAFFETZ: I thank the gentleman.
I will now recognize the gentleman from Georgia, Mr. Hice, for five minutes.
HICE: Director Comey, your statement on Tuesday clearly showed that Secretary Clinton not only was extremely careless in handling classified information, but that also any reasonable person should have known better, and that also in doing so, she put our national security at risk with her reckless behavior.
So it seems to me that the American people are only left, based on your assessment, with just a few options. Either Secretary Clinton herself is not a reasonable person, or she is someone who purposefully, willfully exhibited disregard for the law, or she is someone who sees herself as above the law.
And to muddy the water even further after listening to you lay out the facts of the investigation, much of what you said directly contradicted her in previous statements that she had made.
I think that all this compiled, putting the — connecting the dots — that so many American people are irate that after all of this, there was not a recommendation for Secretary Clinton to be prosecuted.
HICE: Now, I do greatly appreciate the fact that you came out with much more information on this than you would have in other cases. And I think that was the right thing to do. Undeniably, this is not a typical case. This is something of great public interest. Obviously, the subject of the investigation, a former secretary of state, former senator, and all those things that we have talked about, former first lady and so forth. And in addition to this, her husband who happens to be a former president of the United States is meeting privately with the attorney general right before all of this interview takes place.
Obviously, this is very suspicious. Just the optics of it all. And at the same time, that you’re coming out or more or less the same time that you are announcing the decision, Secretary Clinton is flying around in Air Force One with the president doing a campaign event.
I mean there’s nothing about this case that’s ordinary. There’s nothing about the subject that’s ordinary. So let me ask you this. Director, did Secretary Clinton in fact comply with the department’s policies or the Federal Records Act?
COMEY: I don’t think so. I know you have the State Inspector General here, who’s more of expert on all the department’s policies but at least in some respects, no.
MICA: So keeping the servers at home and all these types of things obviously is not in compliance with the department’s policies.
COMEY: Yes and I’ve read the Inspector General’s report on that. So that’s part of the reason I can answer that part with some confidence.
MICA: OK and yet she said publicly that she fully complied. So there again, is another issue. If you had the same set of facts but a different subject, a different individual involved say just an average, ordinary State Department employee or an anonymous contractor, what would have been the outcome?
COMEY: I’m highly confident there would be no criminal prosecution no matter who it was. There would be some range of discipline, they might get fired, they might lose their clearance, they might be suspended for 30 days, could be some discipline.
Maybe just a reprimand, I doubt it, I think it’d be higher on the discipline spectrum but some sort of discipline.
MICA: So is it your opinion there should likewise be some discipline in this case?
COMEY: That’s not for me to say. I can talk about what would happen if it was a government employee under my responsibility.
MICA: Well, then what you’re laying out is that there is a double standard for someone else, a different subject, an anonymous contractor or someone at the State Department.
There would absolutely be discipline but because of who the subject is, you’re not willing to say there should be discipline. So there’s again — this whole issue — this is what the American people are so upset about. Let me say that — when you — when you stated that no reasonable prosecutor would pursue this case, is that because the subject of this investigation was unique?
COMEY: No. There’s no double standard there. And there’s no double standard either in the sense that if it was John Doe, former government employee, you’d be in the same boat.
We wouldn’t have any reach on the guy. He wouldn’t be prosecuted.
MICA: But he would have some discipline.
COMEY: Well, not if he had — not if he had left government service. MICA: Had they lied about having servers, had they lied about sending and receiving classified e-mails, had they lied about not deleting those e-mails to the public, had they lied about not having any marked classified — the statements are clearly documented.
And you’re saying that this — an average person would experience discipline by your own words, but Secretary Clinton does not deserve to be disciplined.
CHAFFETZ: The gentleman’s time has expired but the director may answer if he wants to.
COMEY: An average employee still in government service would be subject to a disciplinary process. Now, if they’d left, you’d be in the same boat.
CHAFFETZ: Gentleman from Georgia yields back.
The chair now recognizes the gentleman from Vermont, Mr. Welch.
WELCH: Thank you very much, Mr. Chairman.
Thank you, Director Comey. The prosecutor has really awesome power. The power to prosecute is the power to destroy. And it has to be used with restraint. You obviously know that.
You’re being asked to — you had to exercise that responsibility in the context of a very contested presidential campaign, enormous political pressure. You had to do it once before. And I go back to that evening of March 10, 2004, when the question was whether a surveillance program authorized after 9/11 by President Bush was going to continue despite the fact that the Justice Department had come to an independent legal conclusion that it actually violated our constitutional rights.
That’s a tough call because America was insecure. The president was asserting his authority as Commander In Chief to take an action that was intended to protect the American people but you and others in the Justice Department felt that whatever that justification was, the Constitution came first and you were going to defend it.
As I understand it, you were on your way home and had to divert your drivers to go back to the hospital to be at the bedside of a very sick, at that time Attorney General. And you had to stand in the way of the White House Chief of Staff and the White House Council.
I’m not sure that was a popular decision or one that you could have confidently thought would be a career booster. But I want to thank you for that. Fast forward, we’ve got this situation of a highly contested political campaign. And there is substantive concern that’s legitimate by Democrats and Republicans for independent political reasons.
But you had to make a call that was based upon your view of the law, not your view of how it would affect the outcome of who would the next Commander in Chief. Others have asked this for you, but I think I’m close to the — close to the end.
I want to give you a chance to just answer I think the bottom line questions, here.
Had you, after your thorough investigation, found evidence that suggested that criminal conduct occurred, is there anything, anything or anyone that could have held you back from deciding to prosecute?
COMEY: No. I mean I — I don’t have the power to decide prosecution but I worked very hard to make sure that a righteous case was prosecuted.
WELCH: And you would have made that recommendation to the Attorney General?
WELCH: Was there any interference, implicit or explicit, from the President of the United States or anyone acting on his behalf to influence the outcome of your investigation and the recommendation that you made?
WELCH: Was there anyone in the Hillary Clinton campaign, or Hillary Clinton herself, who did anything directly or indirectly to attempt to influence the conclusion that you made to recommend no prosecution?
WELCH: At this moment, after having been through several hours of questioning, is there anything in the questions you’ve heard that would cause you to change the decision that you made?
COMEY: No, I don’t — I don’t love this, but it’s really important to do. And I understand the questions and concerns. I just want the American people to know we really did this the right way.
You can disagree with us but you cannot fairly say we did it in any kind of political way. We don’t carry water for anybody. We’re trying to do what the right thing is.
WELCH: I — I very much appreciate that and I very much appreciate that it takes strong people of independent judgment to make certain that we continue to be a nation of laws.
Mr. Chairman, just one final thing and I’ll yield to Mr. Cummings.
We’ve got a political debate where a lot of these issues that are going to be — that have been raised are going to be fought on the campaign. And we’ve got Secretary Clinton who’s going to have to defend what she did.
She’s acknowledged it’s a mistake; we’ve got that great constitutional scholar, Mr. Trump, who’s going to be making his case about why this was wrong, but that’s politics. That’s not really having anything to do with the independence of prosecutorial discretion.
Thank you, Director Comey.
And I yield whatever additional time I have to Mr. Cummings.
CHAFFETZ: I think the gentleman’s gonna yield back, I have spoken with Mr. Cummings, so.
We’ll now recognize the gentleman from Kentucky, Mr. Massie, for five minutes.
MASSIE: Thank you, Mr. Chairman.
And thank you, Director Comey, for showing up and your willingness to be transparency and answer a lot of unanswered questions. A few hours before this hearing started I went on to social media and asked people to submit questions.
And I’ve got over 500 questions and I don’t think I’ll get to ask them all in these five minutes. But I’m sure you’ll be willing to answer them. One of the common things that I came in here to ask but I realize it’s not the right question now, is what’s the difference between extremely careless and gross negligence?
But in the process of this hearing, what I’m hearing you say is, that’s not what we — that’s not what your reluctance is based on. It’s not based on the reluctance to prosecute.
Your reluctance to recommend a prosecution — or an indictment is not based on parsing those words.
It’s based on your concern for this statute with this — this statute. Is that correct? From your opening statement?
COMEY: It’s broader than that, actually. The statute — and it fits within a framework of fairness and also my understanding of what the Department of Justice has prosecuted over the last 50 years.
MASSIE: So when you say a reasonable prosecutor wouldn’t take this case, it’s not because you don’t think she made — that she lied in public or that maybe she was negligent, it’s because you have concern with the prosecutorial history of this statute?
COMEY: Not just that statute, but also 1924, which is the misdemeanor. I also don’t see cases that were prosecuted on facts like these. 793 (ph) and 1924…
MASSIE: … But you did find one prosecution in — has it been overturned by the Supreme Court?
COMEY: No, there was one time it was charged in an espionage case, and the guy ended up pleading guilty to a different offense so it was never adjudicated.
MASSIE: So, your concern is with the negligence threshold. You think it requires mens rea, or knowing the crime. But in all 50 states, isn’t there negligent homicide statute, and aren’t people prosecuted for that all the time? Doesn’t the Supreme Court, and all the courts below that, uphold those prosecutions just on the basis of negligence?
COMEY: I don’t know about all 50 states. I think negligent homicide and manslaughter statutes are relatively common.
MASSIE: OK, don’t all 50 states have something like that, and aren’t those sustained in the upper courts, those convictions?
COMEY: I don’t know whether all 50 states have something like that, but again, I think it’s very common and I think those are sustained.
MASSIE: Don’t we have a history of — you implied the American judicial system doesn’t have a history of convicting somebody for negligence, but don’t we in other domains of justice?
COMEY: We do. I know the federal system best. There are very few in the federal system. They’re mostly, as you (ph) talked about earlier, in the environmental and Food and Drug Administration area.
MASSIE: Thank you. Now, I want to ask another question that’s come up here. You’ve basically related to us that this information, this top secret or classified information got into these e-mail chains because of conversations people were having. They were relating what they heard before in other settings. Is that correct?
COMEY: No. Maybe in some cases, but it was people having an e-mail conversation about a classified subject.
MASSIE: OK, so they were having an e-mail conversation, but how in this e-mail conversation did this bore (ph) marking show up? Like, if they’re not sophisticated enough, as you said before, even Hillary Clinton wasn’t sophisticated enough to recognize a bore (ph) marking to, the “C” with the parenthesis for confidential or classified. If they weren’t that sophisticated, how did they recreate that bore marking in their e-mails when they’re having these discussions?
COMEY: A lot of what ended up on Secretary Clinton’s server were stuff that had been forwarded up the chain. It gets to her from her stack, a lot of that, forwarding. And, then she comments sometimes on it. Someone down in the chain, in typing a paragraph that summarized something put a portion marking “C”, “paren”, “C”, “paren”, on that paragraph.
MASSIE: Doesn’t it take a lot of intent to take a classified document from a setting that’s, you know, authorized and secure, to one that’s not? Wouldn’t it require intent for somebody to recreate that classification marking in an unsecure setting?
COMEY: I don’t know. It’s possible, but also, I could…
MASSIE: … Could you accidentally type, “Open parenthesis”, “C”, “closed parenthesis”, and indent the paragraph?
COMEY: Oh no, you wouldn’t accidentally type…
MASSIE: … Right…
COMEY: … Someone actually down the chain…
MASSIE: … OK, so this is my question is someone down the chain being investigated? Because they had the intent clearly if they had the sophistication — which Hillary Clinton, you insinuate, may have lacked. If they had the sophistication to know what this bore marking was, they had to have the intent to recreate it, or the intent to cut, copy, paste from a secure system to an unsecure system. Wouldn’t that be correct?
COMEY: Potentially, but we’re not — there’s not an open criminal investigation of that person way down the chain…
MASSIE: … Shouldn’t there be?
COMEY: A criminal investigation?
MASSIE: An investigation if there’s intent, which is what you — I mean, and I think you may be reasonable in requiring that threshold. Don’t we treat everybody the same whether they’re the top of the chain or the bottom of the chain?
COMEY: Sure, you want to if the conduct is the same. We did not criminally investigate whoever started that chain and put the “C” on that — those paragraphs. We didn’t.
MASSIE: OK, I would suggest maybe you might want to do that, and I will yield back to the Chairman.
CHAFFETZ: OK, I thank the gentleman. I now recognize the gentlewoman from Michigan, Mrs. Lawrence for five minutes.
LAWRENCE: Director Comey, how many years have you been the director?
COMEY: Two — three years. I don’t know the exact day count at this point.
LAWRENCE: How many cases have you investigated, approximately, that you had to render a decision?
COMEY: The Bureau investigates tens of thousands of cases. The Director only gets involved in a very small number of them.
LAWRENCE: About how many?
COMEY: I think I’ve been deeply involved in probably 10 to 20.
LAWRENCE: Have you even been called before Congress on any of those other decisions?
COMEY: No, this is the first time.
LAWRENCE: Thank you. There are some Republicans who support you. Not surprisingly, they’re the ones who actually know you. I have a letter here, and I would like to enter it into the record, from Richard Painter, he was President Bush’s Chief Ethics lawyer. May it be entered into the record?
CHAFFETZ: She’s asking unanimous consent, without objection, so ordered.
LAWRENCE: Mr. Painter refers to Mr. Comey as a man of, and I quote, “the man of the utmost integrity who calls the shots as he saw them, without regard to political affiliation or friendship.” He states, and I quote, “throughout the FBI investigation of Secretary Clinton’s e- mail server, I have been convinced that the Director would supervise the investigation with being impartial, and strict adherence to the law, as well as procedural.”
He also adds, although I’m aware of very few prosecutions for carelessness in handling classified information as opposed to intentional disclosure, I knew that the Director would recommend prosecution in any and all circumstances where it was warranted. I can not think of someone better suited to handle such a politically sensitive investigation.”
Finally, and I quote, “I urge all members of the United States Congress to stop from inferring in specific decisions, particularly those involving political allies, or opponents. During my tenure in the White House there were very unfortunate allegation that power Senators sought politically motivating firing of United States attorney. Whether or not such allegations were true, it is imperative,” and I’m still quoting, “that members of the Senate or the House never again conduct themselves in a manner where such interference could be suspected.”
And, I want to be on the record, I wholeheartedly agree with Mr. Painter.
Director, you have demonstrated yourself, you sat here and asked (ph) the questions, and I would never oppose to finding the answers to any situation that is directly related to federal agencies which we, on this committee, are responsible for. But, I want to be clear that Congress has no business, no business interfering with these types of decisions that are coming in this — in your responsibility.
These type of attacks are not only inappropriate, but they’re dangerous. They’re dangerous because they could have a chilling effect on the future investigations. And, I ask that question, how long have you been this position? How many times have you made decisions, and it were knocked, pulled in 24 before this committee? How many times? And, then we say it’s not political.
And, you have said repeatedly, regardless of who it was you would have conducted the investigation as required under your responsibility. And, here you have Republicans who are saying you are an honorable man. Until this day, I have not heard any complaints of your judgment. So, I sit here today as a member of Congress on the record that the slippery slope that we’re seeing today in this hearing, I want every member to be cautious of what we’re saying. That in America when we have investigation that we will allow our own elected Congress and Senate to make this a political agenda to attack, but only if it’s in their agenda. This goes for Democrats and Republicans, we are not here to do that.
Thank you, and I yield back my time.
CHAFFETZ: I thank the gentlewoman.
Will now recognize the gentleman, Mr. Blum.
BLUM: Thank you, Mr. Chairman.[13:00:00]
Thank you, Director Comey for being here today, and thanks for hanging in there until every last question is answered.
I’m not a lawyer, that’s the good news. I’m a career businessman. I spent most of my career operating in the high high- tech industry.
Today, I heard words such as common sense, reasonable person, carelessness, judgment, or lack thereof. I like these words. I understand these words. I think the average American does as well. I’d like to focus on that.
Last Tuesday, Director, you said, and I quote, “none of these e- mails should have been on any kind of unclassified system, but their presence is especially concerning because all these e-mails were housed on unclassified personal servers not even supported by full- time security staff like those found at agencies of the United States government or even with a commercial e-mail service such as Gmail.” Director Comey, my small Iowa business doesn’t even use Gmail for our e-mail because it’s not secure enough.
I know some security experts in the industry. I check with them. The going rate to hack into somebody’s Gmail account, $129. For corporate e-mails, they can be hacked for $500 or less. If you want to hack into an IP address, it’s around $100. I’m sure the FBI can probably do it cheaper. This is the going rate.
Director Comey, are you implying in that statement that the private e- mail servers of Secretary Clinton’s were perhaps less secure than a Gmail account that is used for free by a billion people around this planet?
COMEY: Yes. And I’m not looking to pick on Gmail. Their security is actually pretty good, the weakness is individual users. But, yes, Gmail has full-time security staff and thinks about patching, and logging, and protecting their systems in a way that was not the case here.
BLUM: I would like to ask you, what kind of judgment — we talked a lot about judgment today — does this decision to potentially expose to hackers classified information on e-mail service that’s less secure than Gmail, your words — what does that suggest to you?
COMEY: It suggests the kind of carelessness I talked about.
BLUM: In August of last year, Secretary Clinton was asked by Ed Henry of Fox News whether she had wiped her entire server, meaning that, did she delete all the e-mails on here server? Her response, “you mean with a cloth?” March of 2015, during a press conference, Secretary Clinton assured us that her private e-mail server was secure saying, “the server was on private property guarded by the Secret Service.”
Now, this would have laughable if it wasn’t so serious. I know, you know, my constituents in eastern Iowa know, you don’t need to be a cat burglar to hack into an e-mail server and you don’t need a cloth to wipe a server clean. One would think that a former United States Senator, one would think that a Former Secretary of State would know this as well. Would you agree with that statement?
COMEY: You would think, although as I said before, one of the things I learned in this case is that the Secretary may not have been as sophisticated as people assumed.
She didn’t have a computer in her office at the State Department for example. I don’t think — so I would assume the same thing about someone who had been a Senator and a high-ranking official. I’m not sure it’s a fair assumption in this case.
BLUM: In your opinion, did Secretary Clinton know that a server could in fact be wiped clean electronically and not with a cloth?
COMEY: Well, I assume — I don’t know…
BLUM: Would you assume she knows that?
COMEY: I would assume it was a facetious comment about a cloth. I don’t know a particular on that one.
BLUM: Would you also assume Director, that Secretary Clinton knew that a server could be wiped clean electronically, that it could be hacked electronically, not physically? You don’t need a cat burglar to hack a server. Would you assume — is reasonable to assume she knows that?
COMEY: To some level she would know that. To some level of understanding.
BLUM: Then once again, for someone who knew these things or we assume to some level she knew these things, what kind of judgment does a decision to expose classified material on personal servers suggest to you? What type of judgment?
COMEY: It’s not my place to assess judgment. I talk in terms of state of mind, negligence in particular. I think there was carelessness here. In some circumstances, extreme carelessness.
BLUM: Was her server hacked?
COMEY: I don’t know. I can’t — can’t prove that it was hacked.
BLUM: That answer says to me it could have been hacked.
BLUM: And if it was hacked, potentially damaging material, damaging to American secrets, damaging to American lives, could have been hacked, could have been exposed, correct? Lives could have been put at risk if that server was indeed hacked?
COMEY: I’m not prepared to say yes as to that last piece. That would require me going into a way — I can’t here due to the nature of the classified information. But there is no doubt that it potentially would have exposed information that’s classified — information that was classified because it could damage the United States of America.
BLUM: So it could I have happened, the FBI just isn’t aware?
BLUM: Thank you very much.
I yield back the time I do not have.
CHAFFETZ: I thank the gentleman.
I now recognize the gentlelady from New Jersey, Ms. Watson Coleman, for five minutes.
WATSON COLEMAN: Thank you.
And thank you, Director. I’ve got a number of questions so I’m going to zip through these.
This is a question I’m going to ask you and you may not even have the answer to it because you may not have known this. This is about the classification marking issue that you’ve been asked about earlier. According to the State Department which addressed the issue yesterday, a spokesman said that, “the call sheets appear to bear classified markings — but this was actually a mistake.” To quote, “generally speaking, there’s a standard process for developing call sheets for the Secretary of State. Call sheets are often marked, but it’s not untypical at all for them to be marked at the confidential level prior to the decision of the Secretary that he or she will make that call. Often times, once it is cleared, the Secretary intends to make a call, the department will then consider the call sheet SBU, Sensitive But Unclassified or unclassified altogether, and then marked appropriately.”
The classifications of a call sheet therefore is not necessarily fixed in time and staffers in the Secretary’s office who are involved in preparing and finalizing these call sheets, they understand that. Given this context, it appears that markings in the documents raised in the media reports were no longer necessary or appropriate at the time they were sent as an actual e-mail. Those markings were human error. They didn’t need to be there. Did you know this?
WATSON COLEMAN: Thank you, Mr. Director.
Can you tell me based upon your information has there been and is there any evidence that our national security has been breached or at risk as a result of these e-mails and their being on this server? Is there any evidence?
COMEY: There’s no direct evidence of an intrusion.
WATSON COLEMAN: Thank you very much.
I have to tell you that while I think that this should conclude this discussion, I know we’re going to hear this issue ad nauseam. But I am concerned about another issue that I think really is resonating with the people in this country. That issue has to do with experiences that we had just the last two days.
Mr. Director, I want to bring this up for your consideration because I want to ask you, what can the FBI do in this issue? This morning, we woke up to another graphic and deeply disturbing video that actually brought me to tears when my staff played it for me, where a Minnesota woman’s boyfriend has been shot as her young child sat in the back- seat after apparently telling the officer he was licensed to carry a weapon. He had it on him, and was going to reach for his identification.
Just the other day, there was a — an incident in Baton Rouge involving a Mr. Alton Sterling, an African-American man who was shot while pinned to the ground by police officers in Baton Rouge. An interaction taped by two bystanders with cell phones captured this. So I think that we’ve got an issue here, an issue of real national security.
And I want to ask you, Mr. Director, do we have an opportunity to direct our time and resources in your department to those issues? Is it — is it not important that we save their names to remind people of the loss of a Tamir Rice, to an Eric Garland, to an Alton Sterling, to a John Crawford III, to a Michael Brown, to a Walter Scott, and even a Sandra Bland? Deaths in the hands of police custody or by police happening — are these not happening at an alarming rate and is this not a legitimate space for the FBI to be working in?
COMEY: Yes, is the emphatic answer. Those are incredibly important matters.
As you know, the FBI spends a lot of time on them because they’re very, very important. We have an investigation open on the Baton Rouge case. I was briefed this morning on the Minnesota case and I would expect we’ll be involved in that as well. It’s an important part of our work.
WATSON COLEMAN: Do you feel that you have the resources from the legal imperative to the funding to address these cases and what seems to be a disturbing pattern in our country today?
COMEY: I’m a bad bureaucrat, but I have — I believe I have sufficient resources and we are applying them against those situations. because I believe the individual cases matter enormously, but also the people’s confidence in law enforcement is one of the bedrocks of this great country of ours. I have the resources and we’re applying them too.
WATSON COLEMAN: And in addition, we believe that our law enforcement is by in large of high integrity and have the desire to keep us protected and safe. But when we find out that there are these occasions, and when there’s an indication that there’s a pattern that is taking place in this country, we have a responsibility to ensure that everyone in this country is safe. And simply because you’re a black man or a black woman does not make you a target.
Thank you. I yield back my time.
CHAFFETZ: I thank the gentlewoman. We’ll now recognize the gentleman from North Carolina, Mr. Walker.
WALKER: Thank you Mr. Chairman. Thank you Director Comey for being here.
There are a few things in this town that people agree on both sides of the aisle, one is your reputation. I’m reminded of the passage in James: Swift to hear, slow to speak, slow to wrath.
I am a little disappointed in some of the things I’ve heard from my colleagues about some of the attacks on your character and integrity. I haven’t heard those. And I hope that we have not — you’ve not experienced that.
I also struggle with a change of heart that we’re hearing today. I have a list of elected officials who have questioned your investigation, even attacked it. In fact, former President Clinton said, “This is a game.” In fact, last Friday, Congresswoman Wasserman Schultz said, “Secretary Clinton is not the target of this investigation, or whatever you want to call it.”
My question to you today: Do you feel like this has been a Republican witch hunt, this hearing?
COMEY: No. I said from the beginning, I understand people’s questions and interest. I’m a huge fan of transparency. I think that’s what makes our democracy great.
WALKER: I think that is one of the reasons as to why you are so respected. To me, this hearing is about understanding and disseminating the facts, and how you saw them, and how the American public sees them. And specifically in the areas of where there was wrongdoing admitted under your investigation, where there was obviously breaking the law, but also some cover-ups. Did Congress ask you to pursue this investigation?
COMEY: No. It was a referral from the Inspector General of the intelligence community.
WALKER: So it wasn’t Republicans either was it?
WALKER: How did you go about collecting the evidence?
COMEY: We used the tools we normally use in a criminal investigation.
WALKER: Did or do you receive a congressional referral for all the information you collected?
COMEY: Not to my knowledge.
WALKER: One of the things I’m struggling with or what I would like to know specifically is, under oath Ms. Clinton made these three comments that we now know are untrue in the Benghazi hearing.
Number one, she’s turned over all her work related e-mails. Number two, telling the committee that her attorneys went through every single e-mail. And finally, and probably the one that continues to stick the most, there was, and I quote, “nothing marked classified on my e-mails,” end quote.
Now, earlier when the chairman questioned you about this, you said something about needing a congressional referral, recommendation. My question is something of this magnitude, why — can you help me understand why didn’t it rise to your investigation or someone bringing that to your knowledge as far as saying this is a problem, here she is, again, Secretary Clinton lying under oath specifically about our investigation?
COMEY: We out of respect for the legislative branch being a separate branch, we do not commence investigations that focus on activities before Congress without Congress asking us to get involved. That’s a long-standing practice of the Department of Justice and the FBI. So we don’t watch on TV and say we ought to investigate that, Joe Smith said this — in front of the committee. It requires the committee to say, “We think we have an issue here; would you all take a look at it?”
WALKER: With all due respect, if you have the Secretary Clinton under oath speaking about your very investigation, and you’ve talked about your wonderful staff, and certainly have no reason to deny it; why wouldn’t that rise to the level of suspicion that — here she is saying this under oath. Lying under oath is a crime is it not?
WALKER: What’s the penalty on that? That’s considered perjury right?
COMEY: Perjury, it’s a felony, I forget the exact — it’s potentially years in prison.
WALKER: I don’t understand — would you help me understand why somebody wouldn’t have tipped you off that she’s talking about the specific case under oath that you’re investigating?
COMEY: There’s a difference between us being aware of testimony and us opening a criminal investigation for potential perjury.
Again, it’s not this case in particular, but all cases. We don’t do that without the committee saying, “We think there was an issue in testimony given in this separate branch of the government.”
WALKER: You also mentioned earlier, and it’s been quoted several times, that no reasonable prosecutor would move forward with some of the facts. Is there any room at all that somebody would differ on the opinion? I know that former United States Attorney General Michael Mukasey said that an illegal server disqualifies her from holding any federal office. So there are people of highest esteem that may differ obviously not privy to the exact facts.
Can you make any room? You said no reasonable person. Do you understand why American people or would understand why other people may say that she has stepped across a line or broke enough laws here that you would come to a different conclusion?
COMEY: Sure, I respect different opinions.
My only point — as I said earlier, I smile because those folks are my friends, I’ve worked with them for a long time. None of those guys in my position I believe knowing what I know, would think about it differently. But I also respect that they have a different view from the outside.
WALKER: Thank you, Mr. Chairman. I yield back.
CHAFFETZ: I thank the gentleman. I now recognize the gentleman from California, Mr. DeSaulnier.
DESAULNIER: Thank you, Mr. Chairman. Director, I just want to thank you as others have, and I know you don’t need this but I think the American people clearly need to hear it, you’ve done a wonderful job today. There are moments in my political life and as an American I despair for the future of this country, not often but — in those moments comes an individual like yourself, be it by providence or good fortune or framework of the U.S. constitution, I really believe you served this country and all Americans well irrespective of their party affiliation.
So really two questions. Two lines of questions, I should say. One is I — another colleague brought this up, but you mentioned in just previous testimony about the bedrock and the importance of public confidence and public safety institutions, yours and all. So I just want to give you an opportunity, I think you have responded to this multiple times — but given you had little opportunity tonight — because I think it’s important for the American public to know that the system isn’t rigged, that there are people such as yourself and the 15 individuals who worked on this case and others that do their job and believe in the Constitution of the United States. And if you have any further comments about — comments that would say that the system’s rigged and Americans should give up on the system.
COMEY: One of the reason I welcome this opportunity to have this conversation, is I was raised by great parents who taught me, you can’t care what other people think about you. In my business, I have to and deeply do, that people have confidence that the system’s not fixed, against black people, for rich people, for powerful people.
It’s very, very important that the American people understand that there really are people that you pay for with your tax dollars who don’t give a rip about Democrats or Republicans, or this or that, who care about finding out what is true. And I am lucky to lead an organization that is that way to its core.
I get a ten-year term to ensure that I stay outside of politics, but in a way that it’s easy. I lead an organization that is resolutely apolitical. We are tough aggressive people. If we can make a case, we’ll make a case. We do not care what the person’s stripes are or what their bank account looks like. I worry very much when people doubt that.
It’s the reason I did the press conference two days ago. I care about the FBI’s reputation, I care about the Justice Department, I care about the whole system deeply. And so I decided I’m going to do something no Director’s ever done before. I’m not going to tell the Attorney General or anybody else what I’m going to say or even I’m going to say it. They didn’t know nor did the media know until I walked out what I was going to talk about and then I offered extraordinary transparency, which I’m sure confused and bugged a lot of people.
It’s essential that people see as much as they can so they can make their judgment. Again, they may conclude I’m an idiot and that I should reason different, but what I hope they will not conclude is that I’m a dishonest person. I’m here trying to do the right thing in the right way.
I lead 36,000 people who have that as their spine. That’s what I want them to know. I don’t care that people agree or disagree about our democracy, but at its core, you need to know there are good people trying to do the right thing all day long. You pay for them and we’ll never forget that.
DESAULNIER: I appreciate that.
Within context of these are human institutions — pretty clear to me as non-lawyer that you had a bright line in terms of your decision about pursuing prosecution. But you did spend an extended period of time talking about, what I think I take from you as being a fairly objective analysis of what was careless in terms of handling of it, either ascribed to the former secretary of state or to the department.
You said, and I quote, during your comments, “while not the focus of our investigation, we also developed evidence that a security culture of the State Department in general with respect to the use of unclassified e-mail systems in particular was generally lacking in the kind of care classified information found elsewhere in the government.”
That’s accurate, isn’t it?
COMEY: Yes, sir.
DESAULNIER: So struggling with this, and this is in the context of this hearing, oversight in State Department in this committee, as to how do we go from here, and be clearer about how the State Department — we’ll talk about this with the I.G., and some of the comments former Secretary Powell has made including that the absurdity of the retroactive classification.
And now we have 1,000 of these e-mails from Secretary Clinton that’s out in the public and are being spread even further. So there are other people involved.
Sitting there, how does this committee go forward to make sure the State Department can still function in the way it does with human beings and have conversations that are both transparent, but also national security?
What are the things we need to do to make sure that this doesn’t happen again?
COMEY: Well, I think a good start — I think the reason the chairman has the I.G. from the State Department here is to start that conversation. The I.G. knows deeply the culture of a department and is far better equipped than I to say, you ought to focus here, you ought to focus there to make it better. So I think that’s the place to start.
DESAULNIER: Thank you, Mr. Director. I yield back.
CHAFFETZ: Thank you. We’ll now recognize the gentleman from Tennessee, Mr. DesJarlais, for five minutes.
DESJARLAIS: Director Comey, thank you for appearing so quickly on short notice. I think it’s really important that you’re here because of the way you laid out the case on Tuesday, there is a perception that you felt one way and then came to another conclusion.
I, like many of my colleagues, put a post up back in my district and let them know you were coming. And in less than 24 hours, I had 750 questions sent to ask you. So again, thank you for being here.
But a common theme, just to summarize a lot of those concerns, were that in this case Clinton was above the law, that there was a double standard and a lot of that was based on the way you presented your findings.
Now, your team, you said you did not personally interview her on Saturday, but your team did for about three-and-a-half hours, correct?
DESJARLAIS: OK. Do you know, in reading the review or the summary, did they ask Hillary Clinton about her comment that she had never sent or received classified information over private e-mail?
COMEY: I think so, but I can’t — I can’t remember specifically.
COMEY: It’s a very long, 302. I’d have to check and then get back to you.
DESJARLAIS: OK. And we’ll get access to that.
Do you know if they asked her when she said that there was nothing marked classified on my e-mails sent or received?
COMEY: Same answer. I’m not sure.
DESJARLAIS: OK. And so the same answer then when she said, I did not e-mail any classified material to anyone on my e-mail, there was no classified material, you don’t know whether they asked her that?
COMEY: I don’t know whether they asked her that question. The entire interview was going to be — was focused on, so what did you know, what did you see, what is this document, that kind of thing.
DESJARLAIS: OK. Do you know if she asked her whether she stands by the fact she that said she just used one device and that was for her convenience?
COMEY: I don’t know. I know they established, in talking to her, she used many devices during her four years. So I don’t know whether they asked her specifically about that statement. That’s easy to check, though.
DESJARLAIS: OK. I guess my point is, you’re trying to get inside the head of Hillary Clinton in this investigation and know whether there was intent. And so we all know what she told the people. That has been well-documented.
She said that she did not do those things, that she did not send or receive classified e-mails, that she used one server and one device for her convenience.
And since then, I think even in your statement, you recognize that those were not correct. Is that fair?
COMEY: I really don’t want to get in the business of trying to parse and judge her public statements. And so I think I’ve tried to avoid doing that sitting here.
DESJARLAIS: Why do you feel that’s important?
COMEY: Because what matters to me is what did she say to the FBI. That’s obviously first and foremost for us.
DESJARLAIS: Honest people don’t need to lie, is that right?
COMEY: Honest people don’t need to lie? I hope not.
DESJARLAIS: OK. Well, in this case, for some reason, she felt the need to misrepresent what she had done with this server all throughout the investigation. You guys after a year, brought her in on Saturday and in three-and-a-half hours came out with a conclusion that she shouldn’t be prosecuted because there was no intent, is that right?
DESJARLAIS: OK. So I don’t want to put words in your mouth. But is it fair to say that your interpretation of Hillary Clinton’s handling of top secret information, classified documents was extremely careless?
DESJARLAIS: And is it fair to say that you said that — you went on to define “extremely careless,” that Hillary Clinton’s handling of top secret information was sloppy or represents sloppiness?
COMEY: Yes. That’s another way of trying to express the same concept.
DESJARLAIS: OK. And then just a few minutes ago, you also stated that you now believe that Hillary Clinton is not nearly as sophisticated as people thought, is that correct?
COMEY: Yes, I think that’s fair, actually — no, not as people thought, but as people would assume about somebody with that background.
DESJARLAIS: OK. So…
COMEY: I’m sorry. I should be clear about this. Technically sophisticated. I’m not opining on other kinds of sophistication.
DESJARLAIS: All right. In the last minute, Director, I want to talk a little bit about precedent, because I think my colleague Trey Gowdy made a great point that there still is really no precedents in terms of punishment for this type of behavior.
Are you particular with Bryan Nishmura’s case.
DESJARLAIS: OK. He’s a naval reservist, for those who don’t know, and he was prosecuted. What is the difference between his case and Hillary Clinton’s case in terms of extremely carelessness and gross negligence, because we’re dealing with Statute 793 Section F where it does not require intent, is that correct?
COMEY: I’m sorry, 793-F is the gross negligence standard.
DESJARLAIS: Right, and is that why Bryan Nishimura was punished?
COMEY: No. Nishimura was prosecuted under the misdemeanor Statute 1924 on facts that are very different — if you want me to go through them, I’ll go through them, but very different than… (CROSSTALK)
DESJARLAIS: Well, OK, I think that there has been a review of this case, and they’re very similar. And that’s why people feel that there’s a double standard…
COMEY: What they’re reading in the media is not a complete accounting of the facts in that case.
DESJARLAIS: Well, would you agree then with Representative Gowdy that there still is really no precedents for punishing someone like Hillary Clinton, and she could really go in — potentially be elected president and do this again without fear of being punished?
COMEY: I don’t think I’m qualified to answer that question.
DESJARLAIS: All right. My time has expired. Thank you for your time.
CHAFFETZ: Thank the gentleman.
Now recognize the gentlewoman from New Mexico, Ms. Lujan Grisham.
LUJAN GRISHAM: Thank you, Mr. Chairman.
I’ve had the benefit of — when you’re last to — or nearly last, to really have both the benefit and then to question the kinds of statements and the dialogue back and forth.
And where I’m settled at this point in time is in a couple of places, but particularly, I don’t think there’s any member in this committee, or quite frankly any member in Congress who doesn’t both want and expect that the FBI and the Department of Justice to be — to operate in a fair, unbiased, and highly independent manner.
Otherwise, you can’t appropriately uphold or enforce federal law. And while we’ve all — this has been stated in a couple of different ways, I’m going to see if we can’t — I want to get direct answers.
So, Mr. Comey, is there any evidence, given that that’s the standard that we all want, desire, and expect, to suggest that Hillary Clinton was not charged by the Department of Justice due to inappropriate political influence or due to her current or previous public positions?
COMEY: Zero. And if there is such evidence, I’d love folks to show it to me.
LUJAN GRISHAM: And in that regard, was there a double standard?
COMEY: No. In fact, I think my entire goal was to avoid a double standard, to avoid what sometimes prosecutors call “celebrity hunting,” and doing something for a famous person that you would never do for an ordinary Joe or Jane.
LUJAN GRISHAM: Thank you. And I really appreciate that you’re here today and explaining the process in great detail, frankly. And I’ve — this committee works at getting specific detail about a variety of reviews, investigations, policies, concepts throughout federal government.
And I think I can say that this committee often finds that we don’t get very much clarity or specific responses to the majority of questions that we ask. So I really appreciate that, and that in explaining that what led the FBI to conclude that Hillary Clinton should not be charged.
Saying that, however, I’m still concerned, frankly, that the use of this hearing and some of the public statements made by the elected officials accusing the Department of Justice of using a double standard, without any evidence at all to support that statement, leaning on accusations of such, in fact jeopardizes the very thing we want the most, which is an apolitical and independent Department of Justice. And we have every right to ask these tough questions and to be clear that the process that you use for everyone, including elected officials, works, and that there’s a responsibility not to substitute your own political preferences for the outcome of an independent and apolitical Department of Justice investigations on any level, whether it involves Hillary Clinton or anybody else.[13:30:06]
Do you agree with that general statement?
LUJAN GRISHAM: For me, that’s a really important ethical line that I believe should never be crossed. I worry that some of what we did today, could be frankly interpreted as violating that very standard.
And for that I certainly want the American people and my constituents who are watching to understand that very important line and to be sure that our responsibility is better served making sure that we do have, in fact, an independent body, whose aim it is to bring about truth and justice and uphold the federal law.
And, sir, based on everything that you said today, I don’t see any reason to disagree with your statements, your assessments or the explanation of that process. With the little time I do have left, I do want to say that given that some of the classified material that we’ve both debated and talked about today can be classified later or up classified.
Or that other agencies have different determinations of what constitutes classified and not. I do think that’s a process that warrants refining. And if something can come out of this hearing about making sure that we do something better in the future, for everyone, not just appointed or elected officials that, that ought to be something that we do.
I’m often confused by some of the things that are clearly told to us in a classified briefing that appear to be different or — or already out in the public in some way, and I’m not sure who’s making those decisions. I honor my responsibility to the highest degree, but I think that’s a process that could use some significant refining, and that’s my only suggestion, sir.
Thank you for being here today.
COMEY: Thank you.
CHAFFETZ: I thank the — I thank the gentlewoman. We’ll now recognize the gentleman from Georgia, Mr. Carter for five minutes.
CARTER: Thank you Mr. Chairman. And Director Comey, thank you for being here today. I appreciate it. I’m over here.
COMEY: Oh, sorry.
CARTER: I’m over here. And I’m gonna — I’m gonna be real quick and — and try to be succinct. I — I want to clarify some things that you said, and — and look, I — I don’t want to go over everything that everybody’s been through today. I mean, we’ve had some great questions that have — have asked you about, you said this, she said that.
Representative Gowdy made a great case of, you know, this is what she said under oath, and — and publicly, and yet, you dispute that and say, no, this is the case. But, look I’m just — just got a couple of questions. OK?
First of all, did I understand you correctly that your decision, that this decision was made within 3 and 1/2 hours of — of an interview, and that was all?
COMEY: No, we investigated it for a year.
CARTER: You investigate, but you interviewed her for 3 and 1/2 hours last week and then came to the conclusion?
COMEY: Correct. We interviewed her on Saturday for 3 and 1/2 hours, the last step in a year-long investigation.
CARTER: OK. Now, as I understand that Hillary Clinton has testified that — that the servers that she used were always safe and secure. Yet, you refute that and say, no, that is not the case at all. Were they ever secure? Were the servers that she would use, were they ever secure?
COMEY: The challenge of security is not binary, it’s just degrees of security. It was less secure than one at the State Department, or as I said, even one at a private commercial provider like a Gmail.
CARTER: Well, let me ask you this, she’s got staff, and she’s got people around her. Did they know she was doing this? Did they know that she was using these other devices? Did anybody ever bring it to her attention and say, hey, you don’t suppose to be doing that?
COMEY: I think a lot of people around the secretary understood she was using a private personal email set…
CARTER: Than why didn’t they say something? Don’t they have a responsibility as well?
COMEY: That’s an important question that goes to the culture of the State Department that’s worth asking.
CARTER: I — you — I mean, look we all surround ourselves, we get people and we depend on to help us. I don’t — should they be held responsible for that? For not bringing that to someone’s attention? If I see someone who’s breaking — who’s not following protocol, is it my responsibility to report them?
COMEY: Yes. Yeah.
CARTER: Well, I certainly…
COMEY: Especially when it comes to security matters. Obligation to report a security violation that you may witness, whether it’s involving you or one of your co-workers. But this is about — so if someone…
CARTER: What about Bryan Pagliano? Did — did he ever know? Do you know if he knew that she was — she was not following proper protocol here?
COMEY: He helped set it up.
CARTER: He helped set it up? So obviously he knew.
COMEY: Yeah. Obviously he knew that…
CARTER: OK, is anything going to be done to him? Any — any prosecution, or any discipline, any…
COMEY: I don’t know about discipline, but there’s not going to be any prosecution of him.
CHAFFETZ: Will the — will the gentleman yield?
CARTER: I yield.
CHAFFETZ: My understanding, Director, is that you offered him immunity. Why did you offer him immunity and what did you get for it?
COMEY: You know, that I have to — I’m not sure what I can talk about in open setting about that.
CHAFFETZ: Well, he’s not going to be prosecuted, so…
COMEY: Right, but I — I want to be careful. I’m doing this 24 hours after the investigation closed. I want to be thoughtful, because we’re — we’re as you know, big about the law, that I’m following the law about what I disclose about that. So I’ll have to get back to you on that one. I don’t want to answer that off the cuff.
CARTER: Director Comey, I — I am not a lawyer. I’m not an investigator. I’m a pharmacist, but I’m a citizen. And citizens are upset. I watched with great interest last — earlier this week when you laid out your case. And — and I’m telling you, you laid it out, bam, bam, bam, here’s what she did wrong, wrong, wrong, wrong.
And then all of a sudden you used the word, however. And — and it was like you could hear a gasp throughout the country of people saying, ah, here we go again. Do you regret presenting it in a way like that?
COMEY: No, I — I’m highly — I think I didn’t use the word “however.” I try never to use that in speaking, but I did lay it out, I thought in the way that made sense and that I hoped was maximum transparency for people. And I know…
CARTER: But that’s the point — I’m sorry, but that’s the point it didn’t make sense. The way you were laying it out, it would have made sense in the way that the questions have been asked here and — and we’ve made all these points of where — where she was obviously told lies underneath — under oath that it would have been OK, we — we finally got one here.
COMEY: Yeah, I think it made sense. I just hope folks go back, maybe with a cup of tea and open their minds and read my statement again, carefully. But again, if you disagree, that’s OK.
CARTER: But it — but it — but when we — look, I’ve only been here 18 months. And I’m gonna tell ya, it — this “inside the beltway” mentality, no wonder people don’t trust us.
COMEY: Well, I — I have no — I don’t know who you’re talking about. I have no kind of “inside the beltway” mentality.
CARTER: But this is an example of what I’m talking about here. It — it — it — just was as a non-lawyer, as a non-investigator, it would appear to me, you have got a hell of a case.
COMEY: And I’m telling you do, and I hope people take the time to understand why.
CARTER: Mr. Chairman, I yield back.
CHAFFETZ: Thank the gentleman. I will now recognize the gentleman from Arizona, Mr. — Mr. Goshar. Oh, let’s go ahead and go to the gentleman from South Carolina, Mr. Mulvaney first.
MULVANEY: Thank you gentleman. Director Comey, earlier today you heard a long list of statements that Ms. Clinton has made previously, both to the public and to Congress that were not factually accurate.
I think you went down the whole long list. When she met with you folks on Saturday last week, I take it she didn’t say the same things at that interview?
COMEY: I’m not equipped sitting here without the 302 in front of me to answer in that broad…
MULVANEY: But it’s your — it’s your testimony…
COMEY: But I have no basis — we do not have a basis for concluding she lied to the FBI.
MULVANEY: Gotcha. Did anybody ask her on Saturday, why she told y’all one thing and told us another?
COMEY: I don’t know as I sit here. I mean, I can — I’ll figure that out.
MULVANEY: Would that have been of interest to you in helping to establish intent?
COMEY: It could have been, sure.
MULVANEY: More importantly I think, did anybody ask her why she set up the email system as she did in the first place?
MULVANEY: And the answer was convenience?
COMEY: Yeah, it was already there. It was a system her husband had and so she just jumped on to it.
MULVANEY: Were you aware that just earlier this week, her — her assistant actually said it was for an entirely different reason? It was to — it was to keep emails from being accessible, and that it was for concealment purpose. So she was — Huma Abedin was asked in her deposition why it was set up.
And it was said, to keep her personal emails from being accessible. To the question, to whom? To anybody. Where you aware of that testimony?
COMEY: Generally, yes.
MULVANEY: OK. So here’s — here’s sort of the summary I take from what we’ve done today, which is that over the course of the entire system, what she did, she intentionally set up a system. According to your — to your testimony, your findings, she was careless regarding its technical security.
I think you said, that even a basic free account, a Gmail account had better security than she had. And she did that according to her own staffer’s sworn deposition, “For the purpose of preventing access to those emails.” As a result of this, she exposed top secret information to potential hack by foreign actors. You’ve seen the emails. We have not.
I think you said earlier that the emails could be of the sort that would put national security at risk. And I think we had testimony earlier that — and got you to — to acknowledge that it might even put our agents overseas at risk.
COMEY: Yeah, I don’t think I agree with that. But, it’s still important.
MULVANEY: Okay, all right. She kept all of that secret until after she left the State Department. She lied about it, or at least made untrue statements about it, after it finally came to light. She thereafter ordered the destruction of evidence, evidence that was destroyed so thoroughly, that you folks could not do an adequate recovery.
Yet she receives no criminal penalty. So I guess this is my question to you, are we assume, as we sit here today, that if the next President of the United States does the exact same thing on the day he or she is sworn into office, sets up a private email service for the purpose of concealing information from the public or from anybody, that as a result of that, potentially exposes national security level information to our enemies, lies about it and then destroys the evidence during an investigation, that there be no criminal charges, if you’re the FBI Director, against that person?
COMEY: Yeah, that’s not a question the FBI Director should answer. I mean, I …
MULVANEY: No, I’m asking you, I’m asking you if, if she does the exact same thing as President as she’s done today, your result would be the exact same as it was 40 hours ago. There would be no criminal findings, right?
COMEY: If the facts were exactly the same?
COMEY: And the law was exactly the same?
COMEY: Yeah, the result would be the same.
MULVANEY: And I guess under the theory that if there’s, the law is to be equally applied to everybody. That if a White House staffer does the exact same thing, for the exact same purpose and exposes the exact same risks, that there’ll be no criminal action against that person.
It could be, as you’ve mentioned administrative penalties, there are no administrative penalties as I understand it, by the way, against the President, correct?
COMEY: I don’t think so, but I’m not at …
MULVANEY: I don’t think there are either. I don’t think, I don’t think you can take away the President’s top security clearance and I’m pretty sure you can’t fire the President, because we’ve tried.
Not only would a staffer not have any criminal charges brought against them, but it, I suppose a summer intern could do the exact same thing under the theory that, we’re going to apply the law equally regardless of who the people are.
My question to you is this, and it’s not a legal question, it’s, I guess it’s a common-sense ordinary question that folks are asking me, from a national security standpoint, somebody who used to lecture on that, does that bother you?
COMEY: The mishandling of classified information bothers me no matter what circumstance it occurs in, because it has national security implications.
MULVANEY: Does it bother you that the precedent that you are setting today, may well lead to a circumstance where our top secret information continues to be exposed to our potential enemies?
COMEY: No, in this sense, the precedent that I’m setting today is my absolute best effort to treat people fairly without regard to who they are. If that continues to be the record of the FBI and Justice Department, that’s what it should be.
The rest of the implications in your question, are beyond that.
They’re important, but they’re not, they’re not for the FBI to answer. We should, we should aspire to be apolitical, facts in the law, treat Joe the same as Sally as Secretary so-and-so. That’s my goal.
MULVANEY: If you would come to a different decision, I, by the way, I, I tend to (inaudible) agree everything you just said, if you’d come to a different decision, do you think it would have a different precedential value, that would keep our information more safe?
COMEY: If we decided to recommend criminal …
MULVANEY: Yes Sir.
COMEY: Charges here? I don’t know, that’s a good question. I don’t know. I could, I could argue it both way, I guess I’m a lawyer, I can argue everything both ways, but I could argue that both ways.
MULVANEY: All right, thank you Director Comey. Thank you Mr. Chairman.
CHAFFETZ: Thank you Gentlemen. Now recognize the gentlemen from Arizona, Mr. Gosar, for five minutes.
GOSAR: Thanks Mr. Chairman. Thank you Mr. Comey for being here. My, my colleague alluded to Brian Pagliano, the IT advisor and were you made aware of the deal of immunity with him?
COMEY: I am aware.
GOSAR: Now that Attorney General Lynch has stated there’ll be no charges, there’s many that suspect that in his (inaudible) that he failed to answer questions in his congressional deposition, that he had something to hide. Why did your investigators at the DOJ decide it was necessary to offer Mr. Pagliano immunity?
COMEY: As I said in response to your earlier question, I need to be more thoughtful about what I say about an immunity deal in public. May be totally fine, just don’t want to screw up because we’re doing this quickly.
COMEY: In general I can answer, because I’ve done it many times as a Prosecutor. You make a grant of immunity in order to get information that you don’t think you could get otherwise.
GOSAR: But you know that there maybe something there in hindsight, right? You’re looking, you’re looking ahead because of the pertinent information this person possesses?
COMEY: Right, they may have, they, you believe they have relevant information to the investigation.
GOSAR: So, did the investigators draft an interview report known as a 302 with Mr. Pagliano?
GOSAR: Do you have any importance of this case where you commit to voluntary disclosing the 302’s for review of Brian Pagliano and other witnesses interviewed on, as part of your investigation?
COMEY: I’ll commit to giving you everything I can possibly give you under the law, and to doing it as quickly as possibly. That’s said then, that means I got to go back and sort it out. For example, the 302 of Secretary Clinton, it’s classified at the TSSCI level, so we got to sort through all that, but we’ll do it, we’ll do it quickly.
GOSAR: Yeah, I know you’ve done this, because you’ve done this for Lois Learner and other cases, so we would expect that. Now, Director Comey, Hillary Clinton testified before Congress and told the American people multiple times that she never emailed any classified information to anyone on her private email servers. Your investigation revealed a 110 of Clinton’s emails, 52 email chains contained classified information. Clinton told the American people, and I quote, “The laws and regulations in effect when I was Secretary State, allowed me to use my email for work. This is undisputed.” Your investigation revealed that that also wasn’t true. Clinton claimed she turned over all her work related emails.
Your investigator, investigation revealed that this wasn’t also true. Clinton claimed that there was no security breaches and her private servers had numerous safeguards. Your investigation revealed eight email chains on Clinton’s private servers containing top secret information. And that it was possible, hostile, “Hostile actors gained access to sensitive information.”
Further, multiple people she emailed with regularity were hacked by hostile actors and her private servers are less secure than a Gmail account, making a security breach all the more likely. Director Comey, it’s a federal crime, as you know, to mishandle classified information in a grossly negligent way, and you stated Clinton and her colleagues were extremely careless.
Clinton was publicly, has publicly stated she was well aware of the classification requirements. Then she broke the law anyway. Multiple people have been prosecuted for less and there’s a growing trend of abuses in senior level employees.
The only difference between her and others, is her total resistance to acknowledge, to acknowledge her irresponsible behavior, that jeopardized our national security and the American people. I think you should have recommended Clinton be prosecuted under Section 793, or Section 1024 or Title 18.
If not who, if not now, when? Your recommendation deprived the American people of their opportunity for justice in this matter.
There shouldn’t be a double standards for the Clintons and they shouldn’t be above the law. With that, I’m going to yield the rest of my time, gentlemen from South Carolina, Mr. Gowdy.
GOWDY: Thank you Doctor Gosar. Director Comey, I want to go back to the issue of intent for just a second. We could disagree on whether or not it’s an element of the offense, let’s assume for the sake of argument, that you’re right and I’m wrong and that it is an element of the offense.
Secretary Clinton said that she was, “Well aware of classification requirements”. Those are her words, not mine and not yours. So if she were, “Well aware of classification requirements”, how did that impact your analysis of her intent? Because I’ve heard you this morning, describe her as being less than sophisticated. She disagrees with that.
COMEY: Well, I was talking about technical sophistication. The question is, I would hope everybody who works in the Government is aware of classification requirements. The question then is, if you mishandle classified information, when you did that thing, did you know you were doing something that was unlawful? That’s the intent question.
GOWDY: All right, well you and I are going to have to get together some other time and discuss all the people we prosecuted who were unaware that they were breaking the law. That, there are lots of really dumb defendants out there, who don’t know that what they’re doing is against the law. But let’s go with what you say …
COMEY: I disagree. I, you may have prosecuted a lot of those folks. I did not prosecute all those folks.
GOWDY: I was a gunner prosecutor and you were a white collar prosecutor. Trust me, there, there are lots of people who don’t know you can’t kill other people. Let me ask you this, on the issue of intent, you say it was convenience, okay? You’re a really smart lawyer, if it were convenience Director, she wouldn’t have waited two years to return the documents and she wouldn’t have deleted them four years after they were created.
So you can’t really believe that her intent was convenience when she never turned them over until Congress started asking for them, could you?
COMEY: Yeah my focus, and I hope I made this clear, my focus is on, what was the thinking around the classified information. I mean it’s relevant why the system was set up and the thinking there. But she didn’t, I don’t understand her to be saying, we’ll I think I’ve said it already, that, that’s my focus.
GOWDY: So, I know I’m out of time, but, but it just strikes me, you are reading a specific intent element into a gross negligence statute, not even general intent?
CHAFFETZ: Gentlemen’s time.
GOWDY: A specific intent …
CHAFFETZ: Gentleman’s time has expired.
COMEY: Yeah. Is that? Oh, sorry.
CHAFFETZ: Go, the Director can answer.
COMEY: I enjoyed, I enjoyed talking with him. The, the question you’ve got to ask is, why is it that the Department of Justice, since 1917, has not used that gross negligence statute for charging at once in an espionage case. And whether their decision was smart or not, that is the record of fairness.
And so you have to decide, do I treat this person against that record? And if I do, is that a fair thing to do? Even if you’re not worried about the constitutionality of it, and my judgment is, no reasonable prosecutor would do that. That would be celebrity hunting. That will be treating this person differently than John Doe.
MULVANEY: Director, I want to follow up on that.
Why did you do what you did? My interpretation of what the FBI is supposed to be doing, is to come to a determination of the facts and then turn it over to a prosecutor. You were a prosecutor but you are not a prosecutor now.
MULVANEY: It is unprecedented that an FBI Director gave the type of press conference that he did and took a position that an unreasonable prosecutor would only take this case forward. Why would do you that?
COMEY: Yes, it’s a great question.
Everything I did would have been done privately in the normal course. We have great conversation in the FBI, as prosecutors we make recommendations, we argue back and forth. What I decided to do was offer transparency to the American people about the “whys” of that, what I was going to do because I thought it was very, very important for their confidence in the system of justice. And within that their confidence in the FBI.
I was very concerned that if I didn’t show that transparency, that in that lack of transparency people would say, “what is going on here — something seems squirrely here? So I said I would do something unprecedented because I think it is unprecedented situation.
Now, the next Director who is criminally investigating one of the two candidates for president may find him or herself bound by my precedent. OK, if that happens in the next 100 years, they will have to deal with what I did. I decided it was worth doing.
CHAFFETZ: Mr. Cummings.
CUMMINGS: Director, I have just one question.
I’m sitting here listening to this and I really — this is something that bothered me in the Lois Lerner case and in this case. I’m wondering of what your opinion — Ms. Lawrence talked about this — the chilling effect of your having to come here and justify your decisions.
I know that you have been really nice and you explained why you did what you did and I’m glad you are doing it, but — you know, do you at all — taking off — I’m talking about — here you have people making decisions and then being pulled here in the Congress to then say – OK, to be questioned about the decisions. At what point, or do you even think about it becoming a chilling effect? Because most people when their decision is made, they don’t get this kind of opportunity.
As you well know, there are no statements. They either get indicted or they are not. I know you see this as a special case. I’m wondering whether you agree with Ms. Lawrence that we may be just going down a slippery slope? That’s all I want to know.
COMEY: My honest answer is I don’t think so.
When I talked to the Chairman, I agreed to come because I think the American people care deeply about this. There’s all kinds of folks watching this at home or being told, “well, lots of other cases are being prosecuted and she wasn’t.” I want them to know that’s not true.
I want to have this conversation. I welcome the opportunity. Look, it’s a pain. I have had to go to the bathroom for about an hour but is…
CHAFFETZ: Don’t worry, we’re half way done.
COMEY: It is really important to do because this is an unprecedented situation.
Transparency is the absolute best thing for me and for democracy. And I realize Mr. Chairman, my folks told me I screwed up one fact that I should fix. I was mis-remembering, in the Petraeus case, we didn’t find the note books in the attic, we found it in his desk. So I wanted to make sure I was fair to him about that.
I really don’t think it has a chilling effect. Again, if there is another presidential candidate being investigated by the FBI, maybe they will be bound by this. Lord willing it will not happen again ,certainly, my 2,619 days left on this job. It won’t happen on my term but if it does, I won’t be chilled.
CHAFFETZ: If we need a humanitarian break just give me a cue.
COMEY: I feel like we are almost done.
CHAFFETZ: We’re on the right trajectory, yes.
We would like to recognize the gentleman from Alabama, Mr. Palmer for five minutes.
PALMER: Thank you Mr. Chairman.
Director Comey, your statement on Tuesday indicated that Secretary Clinton and her colleagues sent or received e-mails marked classified on an unsecured private e-mail server that may or may not have been hacked by foreign power. Are you aware that teenage hackers hack personal accounts of CIA Director John Brennan, the Director of U.S. National Intelligence, James Clapper and FBI deputy director Mark F. Giuliano?
COMEY: I am intensely aware. They didn’t hack in the way we normally think of it, but they got there by treachery, got access to their accounts.
PALMER: The point I want to make that is that these were personal – commercial protected personal e-mail accounts that contained no classified information. Yet, Ms. Clinton used her personal e-mail, not a commercial account, on a server in her basement without even this basic protection, and transmitted classified information through that account.
If teenagers in England were able to hack personal e-mail accounts of the Director of the CIA, the Director of the U.S. National Intelligence, and the Deputy Director of the FBI, does it concern you that sophisticated hackers or hackers working for foreign interest never attempted? I mean, does it seem reasonable that they never attempted or were never successful in hacking Mrs. Clinton’s personal e-mail accounts or one of her devices?
COMEY: It concerns me a great deal. That is why we spent so much time trying to see if we could figure out — see fingerprints of that.
PALMER: You said in your statement regarding your recommendation not to prosecute – to be clear, this is not to suggest that in similar circumstances a person who engaged in this activity would face no consequences. To the contrary, these individuals are often subject to security or administrative sanctions, that is not what we are deciding here. Do you stand by that?
PALMER: I thought you would.
You also said, “you could not prove intent.” I want to touch on a couple things here. One, a reasonable person would not have compromised classified information by keeping that information on inadequately secured private devices. In other words, such a person would be viewed as unreasonable and unsuitable for any position in our government that included any responsibility for handling and protecting classified information. Would you agree?
COMEY: I would agree it would be negligent. I can’t prejudge a suitability determination but it would be definitely be stared at very hard.
PALMER: Let me tell you why I bring this up.
I sat up here next to Mr. Hurd who served our country valiantly, put his life on the line. I don’t know if you can sense the passion and intensity of his questions, because he knows people whose lives are on the line right now. In regard to his questions, if someone — a U.S. intelligence agent had mission compromised or worse, had been killed, or injured, or captured because of carelessness of someone responsible for protecting classified information, would intent matter at that point?
COMEY: In deciding whether to prosecute the person, of course. Yes, that’s the answer. Of course, it would – the matter would be deadly serious, but the legal standards would be the same.
PALMER: What we are dealing with in this hearing is not the lack of due diligence in handling routine government data or information, but the lack of due diligence by Secretary Clinton and her carelessness in handling classified information that could have compromised American national security – as Mr. Hurd pointed out, the missions and personal safety of our intelligence agents. That troubles me greatly.
And I think the issue here — I do respect you. I have spoken in your defense many times, at this point to my detriment. I do believe that your answers are honest and factual.
Based on your answers regarding plus Mrs. Clinton’s use of e-mail and based on what we know, it seems to me that she is stunningly incompetent in understanding of basic technology of e-mail and stunningly incompetent in handling classified information. I mean, you should never associate the Secretary of State and classified information with the word careless. It doesn’t matter.
I mean, we have to exercise the utmost due diligence. All of us in this Committee do in handling this. You do in prosecuting cases and I see that in what you are trying to do. I just think we need to leave here with this understanding that there is more to this story than we know.
If a foreign hacker got into this I can assure you that they know what was in those e-mails that were deleted. They read them all. They know what is in the e-mails that we never received.
Mr. Chairman, I yield back.
CHAFFETZ: I thank the gentleman. We will now go to the gentleman from Wisconsin, Mr. Grothman for five minutes.
GROTHMAN: Thank you. Thanks for coming on over to the Rayburn building.
As I understand it your testimony today, is that you have not brought criminal charges against Hillary Clinton in part because you feel you can’t prove guilt beyond a reasonable doubt, and in part because she didn’t understand the laws with regard to e-mails, and servers, and that sort of thing.[14:00:16]
Question for you: When she erased these e-mails — you, however, did say that if somebody did this under you there would be consequences.
If somebody did exactly what Mrs. Clinton did or was one of your lieutenants or you think (ph) one of the lieutenants under the CIA or some other agency that deals with top secret documents, what would you do to those underlings (ph)?
COMEY: I would make sure that they were adjudicated through a security disciplinary proceeding to figure out what are all circumstances and what punishment discipline is appropriate that could range from being terminated to being reprimanded and a whole spectrum between suspensions, loss of clearance, it’s a bunch of different options.
GROTHMAN: OK but somehow let’s say one of your top two or three lieutenants you find out that they’ve had this separate server out there and they’re keeping secret documents, flipping them around, do you think they should be fired? Not criminally charged but fired?
COMEY: Yeah, I don’t think it’s appropriate to say. I think it should go through — we have a very robust process. There ought to be a very intense suitability review of that person.
Maybe there’s something we’re missing that would mitigate the punishment we would impose but it would have to go through our system.
GROTHMAN: OK next question. Just for the listening audience, here. At first when I hear about erasing e-mails I think it’s like you know, like on my phone where I might erase an auto insurance solicitation.
The erasers here, however, were not just Mrs. Clinton pressing delete. Or they — there was a much greater effort made to make sure that these e-mails would never be recovered. Do you want to comment on what was done to erase the e-mails?
COMEY: I think what you’re referring to is after her lawyers — her lawyers say — although I don’t — I’m not able to verify this. There were 60,000 or so left at the end of 2014.
They went through them in a way I described in my statement two days ago and then they produced the ones that were work related and then they erased from their system the ones that were not work related. That was done using technical tools basically to remove them from lawyers — from the servers to wipe them away.
GROTHMAN: OK so in other words, the effort was not just Mrs. Clinton, where somebody went delete, delete, delete. They went above and beyond that so that your top technical experts could not get back at these e-mails, correct?
COMEY: Right, not fully. We were able to…
GROTHMAN: You recovered a few.
COMEY: Yeah, we can go up through the lawyer’s laptops and see some traces but not fully — not fully recover them.
GROTHMAN: OK now, the information that I have and you can correct me if I’m wrong implies that these erasers were done in December of 2014 after the Benghazi scandal broke, after there were questions about the Clinton Foundation.
Did you ever come across why she allowed these e-mails to sit out there even for years after she stopped being Secretary of State but all of a sudden as these other scandals began to bubble up she felt — or her lawyers felt — that she had to erase them?
COMEY: Yeah I think the way the process worked is she had e- mails that were just on her system. She actually had deleted some I think over time as an ordinary user would. And then the State Department contacted her and other former secretaries and said we have a gap in our records, we need you to look and see if you have e-mails and give them back.
She then tasked her lawyers to engage in this review process of that 60 some thousand and make that cut and then was asked by her lawyers at the end, do you want us to keep the personal e-mails. And she said I have no use for them anymore.
It’s then that they issued the direction that the technical people delete them.
GROTHMAN: Do you think Mrs. Clinton knew that the technical people were erasing these e-mails so that even your top technical experts could recover them?
COMEY: Based on my sense now for technical sophistication, I — I — I don’t think so.
GROTHMAN: You don’t think the lawyers told her that that’s what they were doing? Erasing all these e-mails that everybody on this committee wanted to look at?
COMEY: Yeah — and I’m sure we’ve asked this…
GROTHMAN: What type of lawyer wouldn’t tell their client they were doing that? But…
COMEY: I don’t think — I think — I think our evidence — our investigation is they did not. That they asked her, do you want to keep them and they said no and they said wipe them away.
GROTHMAN: OK. Now, as I understand it, the goal was just to erase personal e-mails but you have recovered e-mails that wouldn’t be considered personal e-mails at all.
GROTHMAN: OK I don’t know that you didn’t recover them (ph) but based upon the e-mails that you recovered presumably, her lawyers or somebody was going well beyond personal e-mails. Is it possible we’ll never be able to recover e-mails that dealt with the Clinton Foundation or dealt with the Benghazi scandal?
Is it possible because of what her lawyers did that they were erasing things that were incriminating, maybe involving items that you were not particularly investigating but these have now been destroyed forever?
COMEY: If it’s possible — as I said in my statement on Tuesday, we did not find evidence to indicate that they did the eraser to conceal things of any sort. But it’s possible, as I said on Tuesday, that there are work related e-mails that were in the batch that were deleted.
GROTHMAN: I’m sorry, when you go to this length to make sure you can never recover the e-mails who are erased, wouldn’t you think the intent is to make sure nobody looks at them again?
Why — why — otherwise, couldn’t you just (inaudible).
CHAFFETZ: I thank the gentleman. We’ll give the director time to — if he wants to respond.
COMEY: I guess it’s a bit circular. You delete because you want to delete. But that — that — what I mean is we didn’t find any evidence of evil intent and intent to obstruct justice.
GROTHMAN: You wouldn’t have been able to because you don’t know what was deleted.
CHAFFETZ: I thank the — we’ll now recognize Mr. Russell of Oklahoma, for five minutes.
RUSSELL: Thank you, Mr. Chairman.
Director Comey, thank you for your long service and your long suffering. I think we’re toward the end of the line, here. I want to say for the record with regard to national security, I sleep a little easier at night knowing that you’re at the helm of the FBI. And thank you for your dedicated service and your integrity. You have stated in your statement and also multiple times here, that there should be consequences for the mishandling of state secrets. If I hold a top secret SCI in the bureau and I did hold one when I was in the United States Army in a career of service.
I handle classified information here, if I — if I held that in the FBI and you discover that I mishandled state secrets on a private server in my basement, would I be trusted by the bureau to further handle top secret information?
COMEY: Maybe not. You would go immediately through a security process to review whether you should continue working for us and if you do what clearances you should retain.
RUSSELL: If I violated the handling of state secrets in the FBI, would you consider me the best suitable candidate for promotion and higher responsibility?
COMEY: It would be a serious concern and we would stare at it very hard in a suitability review.
RUSSELL: Although you have recommended to the Department of Justice that no criminal charges be brought to bear (ph), are you recommending to the Department of Justice that there be no consequences for mishandling of state secrets?
COMEY: No, my recommendation was solely with respect to criminal charges.
RUSSELL: What would you recommend?
COMEY: I don’t think it’s for me to recommend.
RUSSELL: But you do — you’ve been very open and even stated why you felt that these were unique sets of circumstances that called for greater transparency. You do make recommendations routinely, as you’ve stated here today.
We’re talking top secret SCI information that’s been mishandled. You would take a dim view to that if I were an agent. What consequence — this is what the American people feel exasperated about. There seems to be no consequence.
So in a case like this, if it’s not going to be criminal charges recommended, what are the American people to do to hold their officials accountable if maybe they shouldn’t be trusted for further promotion and higher responsibility?
COMEY: And what I — and what I meant earlier is that’s not a question that the American people should put to FBI director. I can answer about things within my remit but that — I understand the question but it’s not one for me to answer in my role.
RUSSELL: Well, I hope it’s one that the American people answer in the future because we do have a choice about those that would mishandle information. And while we’re all fallible human beings and we all make mistakes, in a case like this, for decades of my service in the army infantry and handling top secret SCI information and then as a member of Congress, we know those responsibilities.
Is it your view and others that have interviewed Mrs. Clinton that she would not have known what those responsibilities were?
COMEY: No, I think in a — in a way, you would expect she understood the importance of protecting classified information.
RUSSELL: Well, I would agree with that and there’s been a breach. I think that the American people demand a consequence, that they demand an accountability. And I think it’s important to uphold the form of our Republican government that we have a consequence. And with that, thank you for your appearance here today.
And I would like to yield the remainder of my time to Chairman Chaffetz.
CHAFFETZ: Thank you, I think if you yield back, through mutual agreement Mr. Cummings and I have agreed that I do have about a dozen or so quick follow up questions.
You have been most generous with your time but I would like to get through this last bit and again, we’ll do so with equal time. How did the Department of Justice, or how did the FBI view the incident in which Hillary Clinton instructed Jake Sullivan to take the markings off of a document that was to be sent to her?
COMEY: Yes, we looked at that pretty closely. There was some problem with their secure fax machine and there was an e-mail in which she says in substance, take the headers off of it and send it as a non- paper and as we’ve dug into that more deeply, we’ve come to learn that at least this one view of it that is reasonable, that a non-paper in State Department parlance (ph) means a document that contains things we could pass to another government. So essentially take out anything that’s classified and send it to me. Now it turned out that didn’t happen, we actually found that the classified fax was then sent, but that’s our best understanding of what that was about.
CHAFFETZ: So this was a classified fax?
CHAFFETZ: So Hillary Clinton sends to Jake Sullivan, Jake — well let me go back, Jake Sullivan says they say they had issues sending secure fax, they’re working on it. Hillary Clinton sends to Jake Sullivan, if they can’t, turn into non-paper with no identifying heading and send non-secure. So you’re telling me it’s a classified piece of information, she’s taking off the header and she’s instructing them to send it in a non-secure format. Is that not intent?
COMEY: Well that actually caught my attention when I first saw it and what she explained to us in her interview was, and other witnesses too as well, is what she meant by that is make it into a non-classified document, that’s what a non-paper is in their world, and send it to us because I don’t need the classified stuff I just need the…
CHAFFETZ: Then why take off the heading if it’s going to be turned into a non-classified document, why take off the heading?
COMEY: I assume because it would be non-classified anymore so you wouldn’t have a classified header on it. Because what she said during her interview…
CHAFFETZ: Because she wanted to be technically correct, is that what you’re saying, that you’re…
COMEY: No, I think what she said during the interview is I was telling him in essence, send the unclassified document, take the header off, turn it into a non-paper, which is a term I had never heard before but I’m told by people I credit that in diplomatic circles something we can pass to another government…
CHAFFETZ: You are very generous in your accepting of that. Did any unclear individuals receive any classified information over Hillary Clinton’s server?
COMEY: Did any uncleared (ph) people receive classified information? I don’t think any of the correspondents on the classified e-mails were uncleared people. These were all people with clearances working, doing State Department business, on the unclassed (ph) system.
CHAFFETZ: Did Mr. Pagliano have the requisite security clearance?
COMEY: As I sit here, I can’t remember. He was not a participant on the classified e-mail exchanges though.
CHAFFETZ: But he was running the server, he set it up…
COMEY: That’s a different question. That’s — I’m sorry I misunderstood your question then. Yes, there’s no doubt that uncleared people had access to the server because even after Pagliano there were others who maintained the server who were private sector folks.
CHAFFETZ: So there are hundreds of classified documents on these servers, how many people, without a security clearance had access to that server?
COMEY: I don’t know the exact number as I sit here, it’s probably more than two, less than ten.
CHAFFETZ: I appreciate your willingness to follow up with this. Did Secretary Clinton’s attorneys have the security clearances needed?
COMEY: They did not.
CHAFFETZ: Does that concern you?
COMEY: Oh yes, sure.
CHAFFETZ: Is there any consequence to an attorney rifling through Secretary Clinton’s, Hillary Clinton’s e-mails without a security clearance?
COMEY: Well, not necessarily criminal consequences but there’s a great deal of concern about an uncleared person not subject to the requirements we talked about in the read (ph) in (ph) documents potentially having access. That’s why very, very important for us to recover everything we can back from attorneys.
CHAFFETZ: So what’s the consequence? I mean here Hillary Clinton gave direction to her attorneys without a security clearance to go through documents that were classified.
COMEY: I think that’s what happened in fact, whether that was the direction is a question I can’t answer sitting here.
CHAFFETZ: See — you’re parsing (ph) that one a little bit…
COMEY: No, no you were just asking me — I don’t…
CHAFFETZ: What’s the consequence? They don’t work for the government, we can’t fire them so is there no criminal prosecution of those attorneys, should they lose their bar license, what’s the consequence to this?
COMEY: But they acted with criminal intent or active with some mal- intent…
CHAFFETZ: What you’re telling us is it doesn’t matter if you have a security clearance or not because I may be innocent enough, hello I’m just an attorney, I like the secretary, I’m trying to help Hillary Clinton, I’m not trying to give it to the Chinese or the Russians, I’m just trying to help her. So there’s no intent? It doesn’t matter if these people have security clearances?
COMEY: Of course it matters, that’s why I said…
CHAFFETZ: But there’s no consequence, Director, there’s no consequence.
COMEY: Well, I don’t know what consequence you’d have in mind, very…
CHAFFETZ: Prosecute them.
COMEY: An attorney for receiving from his client information that ends up being classified.
CHAFFETZ: I asked you at the very beginning, does Hillary Clinton, is there a reasonable expectation that Hillary Clinton would send and receive if not day — hourly if not daily, classified information. That’s reasonable to think that the Secretary of State would get classified information every moment. She’s not the head of Fish and Wildlife so the idea that she would turn over her e-mails, her system, her server to, what it sounds like, up to ten people without security clearances and there’s no consequence. So why not do it again?
COMEY: That’s a question I don’t think you should put to me, you’re asking — I’m talking about my criminal investigation.
CHAFFETZ: But how can that — there’s no intent there, does she not understand that these people don’t have security clearances?
COMEY: Surely she understands at least some of them don’t have security clearances.
CHAFFETZ: So she understands they don’t have security clearances and it’s reasonable to think she’s going to be in (ph) classified information. Is that not intent to provide a non-cleared person access to classified information?
COMEY: You’re mixing it up though. I don’t think it’s reasonable to assume — mixing me up, sorry, not your fault — that someone who is maintaining your server is reading your e-mails, in fact I don’t think that’s the case here. There’s a separate thing which is when she is engaging counsel (ph) to comply with the State Department’s request, are her lawyers then exposed information that may be on there that’s classified, so…
CHAFFETZ: And did they see any classified information? Did Hillary Clinton’s attorneys, without security clearances, see classified information?
COMEY: As (ph) I sit here, I don’t know the answer to that.
CHAFFETZ: It has to be yes Director, you came across 110 and they said they went through all of them.
COMEY: Well, they didn’t read them all they just looked at headings (ph)…
CHAFFETZ: So their excuse is we saw the e-mails but we didn’t read them?
COMEY: You know I think I said this in my statement on Tuesday, they sorted the e-mails by using headers and search terms to try and find work related e-mails, we read them all.
CHAFFETZ: I know that you read them all. Do you think it’s reasonable or unreasonable to think that her attorneys, under her director, did or did not read those e-mails? Because there were — let me go back to this, yes or no, were there or were there not classified e-mails that her — that Hillary Clinton’s attorneys read?
COMEY: I don’t know whether they read them at the time.
CHAFFETZ: They — did Hillary Clinton give non-cleared people access to classified information?
COMEY: Yes. Yes.
CHAFFETZ: What do you think her intent was?
COMEY: I think then was to get good legal representation and to make the production to the State Department. That can be a very tall order, in that circumstance (ph) I don’t see the evidence there to make a case that she was acting with criminal intent in her engagement with her lawyers.
CHAFFETZ: And I’d just — I guess I read criminal intent as the idea that you allow somebody without a security clearance access to classified information. Everybody knows that Director, everybody knows that. I’ve gone way past my time, let me recognize Mr. Cummings for an equal amount of time.
CUMMINGS: Director thank you for your patience. I wanted to clear up some things. I want to make sure I understand exactly what you testified to on the issue of whether Secretary Clinton sent or received e-mails that were marked as classified.
On Tuesday you stated, and I quote, “only a very small number of the e-mails containing classified information bore markings, and I emphasis bore markings, indicating the presence of classified information.”
Republicans have pounced on this statement as evidence that Secretary Clinton lied. But today we learned some significant new facts and I hope the press listens to this. First you clarify that you were talking about only three e-mails out of 30 thousand. Your office is reviewed. Is that right?
COMEY: Three, yes.
CUMMINGS: Three out of 30 thousand, is that right?
COMEY: Yes at least 30 thousand.
CUMMINGS: At least 30 thousand. Second, you confirmed that these three e-mails were not properly marked as classified at the time based on Federal guidelines and manuals.
They did not have a classification header; they did not list the original classifier, the agency, officer of origin, reason for classification, or date for declassification. Instead these e-mails included only a single quote see parenthesis, end parenthesis and then end of quotation mark for confidential on one paragraph lower down in the text, is that right?
CUMMINGS: Third, you testified that based on these facts it would have been a quote “reasonable inference for Secretary Clinton to” quote “immediately” end of quote conclude that these e-mails were not in fact classified. So that was also critical new information. But there’s one more critical fact that these e-mails were not in fact, and that is this Director, and to the press these e-mails were not in fact classified.
The State Department explained to us yesterday — they reported that these e-mails are not classified and that including the little C on these e-mails was a result of a human error. The bottom line is that those little Cs should not have been on those documents because they were not in fact classified.
When Representative Watson Coleman asked you a few minutes ago about this you testified that you had not been informed. And I understand that, I’m not beating up on you I promise you. But can you tell us why Director Comey — because I want — because republicans are pouncing saying the Secretary lied and I want to make sure we’re clear on this. Can you tell us why Director Comey did you consult, and we’re just curious, did you consult about these three e-mails out of the more than 30 thousand or did this just not come up? What happened there?
COMEY: Yes I’m not remembering for sure while I’m here. I’m highly confident we consulted with them and got their view on it. I don’t know about what happened yesterday. Maybe their view has changed or they found things out that we didn’t know. But I’m highly confident we consulted with them about it.
CUMMINGS: So this is solely different than what we understood yesterday. Today we learned that these e-mails were not in fact classified, they should not have been included in those — they should not have included those straight (ph) markings. They were not properly marked as classified and the Director of the FBI believes it was reasonable for Secretary Clinton to assume that these documents were not classified. Chairman, you raised a question about whether Secretary Clinton’s attorneys have security clearances.
It is my understanding that they did. We can double check that, but that is my understanding. And we’ll double check that. Let me move to the next topic. You explained on Tuesday that you were providing quote an update on the FBI’s investigation of Secretary Clinton’s use of a personal e-mail system during her time as Secretary of State. You explained that you received a referral on this matter from Inspector General of Intelligence Community on July 6th, 2016. Is that right?
CUMMINGS: Today 10s of thousands of Secretary Clinton’s e-mails are probably available on the State Department’s website. And our staff have been reviewing the e-mails that were retroactively determined to include classified information. Based on this review, it appears that these e-mails included more than one thousand individuals who sent or received the information that is not redacted as classified. Let me make that clear. About one thousand people sent or received the same information that was contained in Secretary Clinton’s e-mails and retroactively classified. Were you aware of that?
COMEY: No, the number doesn’t surprised me though.
CUMMINGS: Why not?
COMEY: Because this was — they were doing the business of the State Department on this e-mail system, so I don’t know how many thousands of people work in the State Department. But it doesn’t surprise there’d be lots of people on these chains.
CUMMINGS: And would you agree that something needs to be done with regard to this classification stuff because classified things are classified then they’re not classified, then they are retroactively classified. I mean does that go into your consideration when looking at a case like this?
COMEY: Yes I don’t pay much attention to the up classified stuff because we’re focused on intent. So if someone classifies it later, it’s impossible that you formed intent around that because it wasn’t classified at the time. I know that’s a process — I wasn’t familiar with it before this investigation, but I don’t spend a lot of time focused on it in the course of a criminal investigation.
CUMMINGS: I understand. We also reviewed who these people are and they include a host of very experienced career diplomats with many years of experience. So let me ask you this. When you received this referral from the Inspector General about Secretary Clinton’s e-mails, did you also receive any referrals for any of the other one thousand people who sent and received those e-mails? Did you?
CUMMINGS: I understand that…
COMEY: Well I should stop there. Within the scope of our investigation was a group of people closer to the Secretary. We looked at their conduct. I forget what the number is — four or five of them, but then the hundreds of others that may have been on the chain were not the subjects of the investigation.
CUMMINGS: OK, I have 30 more seconds. I understand that Secretary Clinton is the only one running for President, but it does not make sense that she was singled out for a referral to the FBI. Do you agree with that?
COMEY: I don’t think I agree with that.
CUMMINGS: So let’s go back to Colin Powell; do you think you ought to look at his situation or Condoleezza Rice?
COMEY: Well there’s been no referral on them. I know only brief (ph) of service (ph) superficial (ph) level of their circumstances this case strikes me as very different from those and not an inappropriate referral from the Inspector General.
CHAFFETZ: Thank you gentlemen. Who was Hillary Clinton e- mailing that was hacked?
COMEY: Yes I don’t want to say in open forum. We can get you that information, but again, I don’t want to give any hostile adversaries insight into who — what we figured out.
CHAFFETZ: Fair enough.
COMEY: So I know the names, but…
CHAFFETZ: Understood, understood. Was there any evidence of Hillary Clinton attempting to avoid compliance with the Freedom of Information Act?
COMEY: That was not the subject of our criminal investigation, so I can’t answer that sitting here.
CHAFFETZ: It’s a violation of law, is it not?
COMEY: Yes, my understanding is there are civil statutes that apply to that. I don’t know…
CHAFFETZ: So let’s put the boundaries on this a little bit. What you didn’t look at. You didn’t look at whether or not there was an intention or the reality of non-compliance with the Freedom of Information Act?
CHAFFETZ: You did not look at testimony that Hillary Clinton gave in the United State Congress, both the House and the Senate.
COMEY: To see whether it was precarious in some respect?
COMEY: No we did not.
CHAFFETZ: Did you review and look at those transcripts as to the intent of your recommendation.
COMEY: I’m sure my folks did. I did not.
CHAFFETZ: So OK, and this is an important point because I think those of us in Congress, knowing that you got a criminal referral from an Inspector General, thought that you were also looking at whether or not Hillary Clinton had provided false testimony, which is a crime, to the Congress, but you didn’t look at that.
COMEY: Correct. As I said, I’m confident my folks looked at the substance of the statements, try to understand the circumstances around the entire situation…
CHAFFETZ: Can you confirm that? I just want to make sure.
COMEY: Yes we’ll confirm that. Also, again, maybe I’m missing this, but I don’t think we got a referral from Congressional Committees — a perjury referral.
CHAFFETZ: No it was the Inspector General that initiated this. Did the fact that Hillary Clinton refused to be interviewed by the Inspector General, what did that say to you about intent?
COMEY: At least for our criminal investigation, not particularly germane.
CHAFFETZ: Are you familiar — you’re familiar there’s a website, I mean lots of government agencies have a website. The State Department has a website; state.gov. And they have a YouTube site. Videos that are uploaded to a YouTube site, would those be considered Federal Records?[14:30:05] COMEY: I don’t know.
CHAFFETZ: So they’re paid for by federal dollars. They’re maintained by federal employees. Would that not be a federal record?
CHAFFETZ: Yeah I just don’t know. I’m sure there’s an expert who can answer that in two seconds but I’m not that expert.
CHAFFETZ: OK we’ve kept you here a long time. I want to follow up on that. Is the FBI still investigating Hillary Clinton’s aides?
COMEY: No is the answer. The Department of Justice declined on all of those who were subjects communicating her through that e-mail system.
CHAFFETZ: What recommendations did you make about her aides?
COMEY: Same, same. We didn’t recommend that anybody be prosecuted on those facts.
CHAFFETZ: And if you can help us understand who precisely had been ruled out for prosecution that would be.
CHAFFETZ: Did you look at the Clinton Foundation?
COMEY: I’m not going to comment on the existence or nonexistence of any other investigations.
CHAFFETZ: Was the Clinton Foundation tied into this investigation?
COMEY: Yeah I’m not going to answer that.
CHAFFETZ: The server that was set up in her home was originally set up by, you said, former President Bill Clinton.
CHAFFETZ: Do you know who paid for that?
COMEY: I don’t sitting here.
CHAFFETZ: OK. I’ll have equal time for my colleague and friend, Mr. Cummings.
CUMMINGS: I’m going to yield two minutes of my 3.43 to Mr. Lynch.
LYNCH: Thank you, Mr. Director. We’re talking about hacking. And so on this committee, we — we — we’re very much interested in cyber security. And we review a lot of the major hacks that are going on.
So just recently, I would say in the last 18 months, we’ve had a major hack February of 2016 at the Department Of Homeland Security and the FBI. We had a hacking group; the Site Intelligence Group reported that a group called crackers with attitude had hacked 9,000 employees’ data from Department Of Homeland Security including names, e-mail addresses, locations, and telephone numbers.
Also, 20,000 FBI workers. We had another hack direct evidence obviously of those, another hack at OPM of 4.2 million current and former federal government employees. Their information had been stolen including social security numbers which are not redacted.
We had IRS in May 2015, millions — no, I’m sorry 200,000 attempted and 100,000 were successful. We had State Department announced a breach of its computer systems after an infiltration forced the agency to temporarily shut down its classification system.
We had the United States Postal Service, 800,000 postal employees, 2.9 million customers. The White House, Washington Post reported back in — this is back in 2014, that the White House computer was hacked.
National Oceanic Atmospheric Administration; we had — I’m on another committee for financial services we had Verizon, USCLA health systems, thousands and thousands and thousands of employees, Anthem Health Care, Sony Pictures, Staples, Home Depot, JP Morgan — it gets into the millions.
Community health systems, Target, TJX, all of these we have direct evidence, millions and millions and million of people their accounts being hacked. Any direct evidence that Hillary Clinton’s e- mails were hacked?
I have no further questions. I yield back.
CUMMINGS: Mr. Director, we are about at the end. I’m gonna do a concluding statement and then I think the chairman will. I wanna — first of all, I want to go back to something that Ms. Watson Coleman said a little earlier. As an African-American man in this country, 66 years old, moving towards the twilight of my life, we cannot allow black men to begin — to continue to be slaughtered. This morning I woke up to my wife literally crying, watching the tape of this guy Anton Sterling in Baton Rouge and then she looked at the one the Philandro Castle near Minneapolis.
And I hope you watch them. There’s something wrong with this picture. And don’t get me wrong, I am all for — I supported police, I am a lawyer. And I know how important police are and I know there are so many great folks.
But Mr. Director, if you do nothing else in your 2,000 plus days left, you have got to help us get a hold of this issue. It is so painful. I can’t even begin to tell you. And so I don’t want — I’ve been fortunate in my life.
I’ve been very fortunate that I have not been harmed by the police, but I’ve been stopped 50 million times. Now, with regard to this hearing I want to thank you again. You know, as I listen to you, you said something that I will never forget. And for some reason it gave me a chill.
You said there are two things that are most important to me, two things. You said my family and my reputation. My family and my reputation. And I — I don’t know whether your family is watching this but I hope that they are as proud of you as I am.
Because you are the epitome of what a public servant is all about. Sacrificing over and over and over again, trying to do the right thing, sometimes coming under ridicule, but yet still doing the right thing. And so I hope that they are proud of you.
The second thing I hope is that no matter what has happened in this hearing, I hope that you know that your reputation is still in tact. And so I conclude by summarizing that I think some of our key findings today, first the director testified that his entire team of 15 to 20 FBI investigators and analysts unanimously agree on the recommendation not to prosecute Secretary Clinton.
Second, Director Comey made crystal clear that Republican claims, some of the talking heads claims of bias are completely false. Testified that he would treat John Doe the same way he would treat Hillary Clinton, that he was forceful on that point.
Third, on the claim that Secretary Clinton sent or received e- mails that were marked as classified, that claim has now been significantly under cut. Those documents were not classified and those markings were not proper.
Finally, Republicans have repeatedly cried foul about a double standard when it comes to Secretary Clinton’s e-mails. But Director Comey testified the real double standard would have been to prosecute her with this completely — with this completely inadequate evidence. Again, director, I thank you. But I thank somebody else. I thank and having practiced law for many years and having dealt with the FBI on many cases, I want to thank the people who work with you because it’s not just — this is not just about you. This is not just about Secretary Clinton. When we are addressing you the whole cad ray of people who give their blood, their sweat and their tears to protect us as Americans. And I just want to thank them because sometimes I think they are forgotten, unseen, unnoticed, unappreciated and unapplauded.
But today I applaud them and I thank you.
Thank you very much and I yield back.
CHAFFETZ: And I thank the gentleman. And I concur with the idea that every FBI agent I have ever met has just been above reproach and they make us proud and they work hard, they put their lives on the line.
They serve overseas, they serve domestically. Can’t thank them enough for what they do. And I hope that is part of the message that we carry back.
I cannot thank you personally enough, you, on a personal level, for your accessibility, your ability to get on the phone with me the same day that you make your announcement, and then in rapid fire when I said to you, what day is best — we’re going to have to do this so which day is best for you. And you said Thursday, and here we are and doing it.
I can’t thank you enough. I wish all of the government employees would have that attitude and approach. And I really do. And I can’t thank you enough. I look forward to working with you and your staff as we move forward in getting this documentation, things that you can’t share publicly and others.
It is the intention of the committee to — I told Mr. Cummings here that we would come back after votes. Votes have been pushed back now a bit. So what I would like to do is to go into recess for five minutes and then we will start with our second panel.
Committee stands in recess until five minutes from now.
Thank you, again, Director Comey.[14:41:03] WOLF BLITZER, CNN ANCHOR: So there you see the director of the FBI, James Comey, four and a half hours of testimony today before the House Government Affairs Oversight and Government Reform Committee. Very, very strong statement. Strongly defending his decision against recommending any criminal charges be filed against Hillary Clinton or her aides in connection with the use of private e- mail servers over four years while she served as secretary of state. But also continuing to insist she and her aides were extremely careless in their handling of very sensitive, highly classified information.
I’m Wolf Blitzer in Washington.
Let’s get some analysis on what we just heard from the FBI director. Very important testimony. Our CNN political director, David Chalian, is with us; CNN justice correspondent, Evan Perez. Our legal analyst, former federal prosecutor, Laura Coates, is with us as well.
Evan, let me start with you.
Because we did get new information, new details on what Hillary Clinton knew about classified information being used on her private e- mail.
EVAN PEREZ, CNN JUSTICE CORRESPONDENT: That’s right, Wolf. One bit of information we were able to get from this hearing that was significant about those — what Comey had described on Tuesday as a small number of documents that contained markings that indicated that there was classified information. That’s important because Hillary Clinton has been saying, including before Congress, that she never sent or received classified information that was marked classified at the time that she was sending them. What we learned today from Director Comey is that there were three e-mails, three e-mails that contained a marking “C,” within parentheses, which designated that those contained classified information. That’s important because it contradicts what Hillary Clinton has been saying. Comey also clarified there was no header on the e-mails to indicate that this was classified information. This was a small letter “C” that was included in the body of the text of the e-mails. And he also said that it was reasonable that she would have known that there was classified information.
One of the things we also learned was from Jason Chaffetz, chairman of the committee there, he’s saying that because of this information, he was going to send a letter to the FBI to seek an investigation of Clinton for lying to Congress. She did testify before Congress. And he says that this is proof that she lied. I can tell you, from listening to what Comey said subsequently, there’s very much reason to believe the FBI and Justice Department will reject that request because Comey already said that he doesn’t think she knew at the time that she was not telling the truth about that — Wolf?
BLITZER: He didn’t back away though from the other point. Yes, there were these three e-mails that had that letter “C” for classified or confidential, whatever the “C” stood for. He made that clear, the State Department yesterday, said but that was an error. They cited two of those e-mails, Evan, suggesting that this was human error for that letter “C.” Those two e-mails — they didn’t say three, they said two of those e-mails were not classified in any way. It was a mistake that was made by some officials at the State Department. Explain what they’re suggesting right there.
PEREZ: Well, Wolf, what the State Department is saying that at least two of the three e-mails we’re talking about, that someone essentially mistakenly left the letter “C” in there to denote classification. And these were really matters that didn’t really matter anymore because they had to do with phone calls that were being scheduled and that once the secretary of state made those phone calls, they were simply no longer classified. That really gets into the arcane parts of how classification works and why this is such a difficult issue for people who understand.
Obviously, Comey’s larger point here — and I think the point for the Republican members of Congress — is that really we’re talking about a lot of e-mails, that none of this belongs on a private server, this was an improper way to handle classified information. And Comey’s larger point also was that, even despite the impropriety here, Wolf, it to the level of bringing charges against the former secretary of state. As a matter of fact, he said that the one standard that people were trying to look at, whether or not there was gross negligence. He says there’s only been one time that that statute has been used that way in 99 years, and that was for an espionage case. Clearly did not rise to the level to prosecute Hillary Clinton — Wolf?[14:45:48]
BLITZER: But let’s develop that a little bit right now.
David, he did not back away at all from his earlier statement on Tuesday that there were 110 e-mails that were classified, various categories of classification, confidential, secret, top-secret, special access programs, top-secret. Even though they weren’t marked classified in those e-mail chains, any reasonable person, especially a secretary of state, would have known that was classified information and had no — it was irresponsible to see that information on these private e-mail servers. He didn’t back away, David, from that at all.
DAVID CHALIAN, CNN POLITICAL EDITOR: He didn’t back away, but he also backed up his claim that he didn’t see any intent, any criminal intent, behind Hillary Clinton’s handling of those 110 classified e- mails that you’re talking about.
I mean, Wolf, think — let’s just look at the macro politics of this. On Tuesday when Comey came out and delivered what was a scathing rebuke of Hillary Clinton’s behavior, she — but then said he wasn’t recommending prosecution, today he was defending his position to not recommend prosecution, and I think on merit, today was probably a better day for Hillary Clinton, vis-a-vis, Jim Comey, than was Tuesday.
BLITZER: No doubt about that. She definitely liked what she heard from the FBI director, even though he continued to insist that she was extremely careless over those four years in handling sensitive information on the private e-mail server.
Laura — I want to get to our Manu up, on the Hill, we’ll get to you in a moment.
Manu Raju is standing by, our congressional correspondent, with Elijah Cummings, the ranking Democrat on the committee.
Go ahead, Manu, and talk to Elijah Cummings and get reaction to what we just heard.
MANU RAJU, CNN SENIOR POLITICAL REPORTER: Thanks, Wolf.
Mr. Cummings, thanks for talking to us.
Some pretty sharp criticism from the FBI director about the way Hillary Clinton handled classified intelligence. Do you have any concerns about the way she did handle classified intelligence?
REP. ELIJAH CUMMINGS, (D), MARYLAND: Sure, I have concerns. And I’m sure that she has her own concerns. She’s already admitted that she made a mistake. And so — but I think the more significant thing here is that this was an effort to — I think, to attack the FBI director, and again his reputation is impeccable and he was not shaken. He made it clear that he treated her like he would treat any Jane Doe. And he said that if he had treated her differently — that is, if he had prosecuted — recommended — made a recommendation for prosecution, that that would have been a double standard against her. In other words, that he would have treated her wrongfully as opposed to a regular person. And he said that he doesn’t go around trying to do celebrity indictments. And I think — I was very pleased about his testimony.
The other thing that he said — and we didn’t know this until today — that 15 to 20 FBI agents who worked on this unanimously, unanimously, said that this would be no prosecution in this case. And o — and there is another thing that was undercut. As a matter of fact, Mrs. Clinton is right — there were no documents that were in fact marked classified. There was — there was a mistake that he didn’t even know about, a small “C” was written on a paragraph in three documents out of 30,000-some.
RAJU: But he also said that she’s not sophisticated enough. She wasn’t sophisticated enough. That is his words.
CUMMINGS: Well, yeah, but again. Again, keep in mind, even if you take — let’s assume — let’s assume that — the fact is that they weren’t even marked classified. So I mean —
RAJU: Three of those were.[14:50:05]
CUMMINGS: Yeah, three out of 30,000-some. And they had a small “C,” and apparently it was just a mistake, that they were not classified, and they did not have six or seven things, headers on the pages, that would have notified somebody that they were in fact classified.
But I think the thing that also concerns me is that Republicans want this drum beat to continue. They’re now talking about doing a referral with regard to her testimony before the Congress. And this again is that same old political game. That is trying to bring down Hillary Rodham Clinton by any means necessary. So — but again, I thought today was very helpful. I asked him to just put in plain language for the American people why it is that he made the decision, and I thought that he did a very good job.
RAJU: One last question. Are you concerned about how — that the — Comey said that if she were in the FBI, she could potentially lose her job, lose her security clearance. Those were pretty strong words from —
CUMMINGS: Those were very strong words. But I think clearly, Hillary
Clinton, having gone through all that she’s gone through, has learned a very, very valuable lesson.
RAJU: Thank you, sir. We appreciate it.
Wolf, back to you.
BLITZER: Manu, thanks very much.
Laura Coates, one of the arguments we’ve been hearing over the past 48 hours, they could have filed gross negligence charges against Hillary Clinton and her aides because, in the words of the FBI director, they were extremely careless in handling very sensitive, highly classified information. He explained today why that would be — that was not appropriate. Did you accept that explanation?
LAURA COATES, CNN LEGAL ANALYST: I did. Because, Wolf, what he was trying to convey is that negligence is kind of a continuum. It’s not an either/or, like intent would be. Either you had the intent to do it or you didn’t have the intent to do it. You had to prove it circumstantially. You talk about gross negligence, I know much was made about the e-mail server being on her private grounds, however, but to actually have a server in place and not to have an indication that she was willy-nilly trying to release classified information in the general public in a way that didn’t do anything to safeguard its classification or confidentiality, that would be, of course, negligence. But here we had a server, as Comey talks about, may have been less secure than perhaps a commercial or even the State Department, but it is not gross negligence to have taken some measures to safeguard the material.
More importantly, what the FBI recognizes is they cannot bridge the gap between her decision to actually have an off-site e-mail server and her handling of classified documents. Frankly, three out of at least 30,000 e-mails does not an inference of intent make.
BLITZER: What about the other argument that he made that there were 110 classified documents on that — those e-mail servers that she reasonably should have known were classified and should never have been there to begin with?
COATES: Now that may, in fact, be true, according to his statements. What Comey has done is brought all the scrutiny on himself. What makes his statements before the DOJ was made aware of his decision so odd is that, by his comments about carelessness, rather than the legal standards of intent and gross negligence, he tried to have an open, public court of opinion as opposed to one that’s normally reserved for the private discussion between the DOJ and the A.G. Lynch and the actual FBI team. His statements were, in fact, the careless part because, in fact, his statements indicate it is a reproach on her character, not a legal conclusion that he is neither entitled to make nor charged with the duty to actually have. The role of the prosecutor in this case is to assess the investigation. The role of the final jury, if there had been one, is to assess whether her conduct was careless to the degree of gross negligence. He steps outside of his bounds in this regard and he is painting a bad lesson in front of Congress today.
BLITZER: David Chalian, I think this testimony, four and a half hours or so of testimony today by the FBI director, it is not completed. I think it sets the stage, correct me if I’m wrong — I’m anxious to know if you agree — for Hillary Clinton herself to address this issue.
CHALIAN: Yeah. She’s going to have to address this issue in some way. And talking to folks around the campaign that should be probably before the Democratic convention, obviously. Even if Elijah Cummings was listing through the things that he believed Comey said today that helped Hillary Clinton’s case, even if Hillary Clinton believes that, too, she still has some lingering questions now from all that Jim Comey has said. And quite frankly, she has admitted mistakes. But politically, if she really wants to try to move past this or take some of the sting out that Republicans have right now with all this fodder from it, addressing it head-on, answering questions about it is a good way.[14:55:09] Wolf, I will say though, one of the things that happens in a day like this with four and half hours of testimony, it inherently becomes partisan. Right? Because you have Republicans asking questions, Democrats asking questions, back and forth between each side. And as soon as the sort of partisan theater of it takes shape, what happens is that, if you’re a Trump supporter or a Republican looking to defeat Hillary Clinton, you go to your side and all the Hillary Clinton supporters to her side, that is a firmer ground for each sit side to sort of conduct their political talking points on, than where Hillary Clinton was by Tuesday when Jim Comey was by himself just offering a rebuke of what he called extremely careless behavior.
BLITZER: David Chalian, Evan Perez, Laura Coates, Manu Raju, thanks to all of you.
CNN’s special live coverage will continue right now with Don Lemon an Erica Hill. They’re standing by.