Return to Transcripts main page

Legal View with Ashleigh Banfield

Coverage of FBI Driector Comey's Testimony Continues. Aired 12:30-1p 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.

[12:30:05] 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...

(CROSSTALK)

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?

COMEY: Yes.

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?

COMEY: No.

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?

COMEY: No.

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.