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Legal View with Ashleigh Banfield

Continuing Coverage of FBI Director Testimony Before Congess. Aired Noon-12:30p ET

Aired July 07, 2016 - 12:30   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

[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.

COMEY: Yes.

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 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?

COMEY: Yes. LIEU: Did you get any political interference from the White House?

COMEY: None.

LIEU: Did you get any political interference from the Hillary Clinton campaign? COMEY: None.

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?

COMEY: 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?

COMEY: 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?

COMEY: Yes.

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?

COMEY: No.

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?

COMEY: Yes.

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.

COMEY: Sure.

MICA: Now, did you write the statement that you gave on Tuesday?

COMEY: Yes.

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...

(CROSSTALK)

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.

Thank you.

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?

COMEY: Yes.

FARENTHOLD: And were these folks that regularly communicated with the secretary?

COMEY: Yes.

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?

COMEY: Yes.

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] 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?