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Senate Hold Hearings on FBI Conduct in Clinton E-Mail Investigation. Aired 3-3:30p ET

Aired June 18, 2018 - 15:00   ET

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

[15:00:03]

SEN. PATRICK LEAHY (D), VERMONT: A letter that could not have come at a worse time, likely impacted the election.

Now, last year, I asked Director Comey specifically about leaks to Mr. Giuliani. He acknowledged for the first time that an internal investigation was ongoing.

Director Wray, was Mr. Comey telling the truth in that? He said here that there was an internal investigation ongoing to the leaks to Mr. Giuliani. Was he correct?

CHRISTOPHER WRAY, FBI DIRECTOR: Senator, I can't speak to what Director Comey was or wasn't saying.

LEAHY: I'm just asking, but was he correct that there is an internal investigation ongoing on the leaks to Mr. Giuliani?

WRAY: Senator, for reasons that I'm sure you can appreciate, I can't confirm or deny the existence of an ongoing investigation, whether there is one or isn't one.

LEAHY: OK.

WRAY: One of the main lessons of this report...

LEAHY: The only reason I raise it is, it was an open hearing, former Director Comey said there was such an internal investigation.

WRAY: Well, there are a number of things that I probably would have done differently.

LEAHY: Mr. Horowitz, you want to take a stab at that or...

MICHAEL HOROWITZ, INSPECTOR GENERAL: I'm certainly not going to comment on whether or not there is an open or ongoing investigation one way or the other.

We have, over the years, refused to do that, and I'm not going to change the policy now.

LEAHY: But, Mr. Horowitz, you and I have known each other a long time. I assume that's the answer you give. But we -- but here we know about Mr. Strzok's private life, and we

know about his text messages, but we know nothing about the leaks from FBI personnel who were actively taking steps to sway the election to Mr. Trump.

You did not include an investigation of those leaks in your report. Is that correct?

HOROWITZ: That's correct, for the reasons we noted, that we're not able to speak to work we might have ongoing.

LEAHY: Well, I would hope that the investigation is ongoing. And, at some point, you will report it to us, because it was generally accepted around here that leaks were going to Mr. (INAUDIBLE) and were going to Mr. Giuliani during the campaign.

In fact, Mr. Giuliani basically said so on TV.

Now, the president says that this report totally exonerates him and says there is no collusion with the Russians. Inspector General Horowitz, did your report even consider the question of collusion?

HOROWITZ: Our report consisted of the FBI and department's handling of the Clinton investigation. It touched on the Russian investigation, as we lay out here, when we found the text messages in that July-August time period, and then the decision that was made in October about whether to proceed or not proceed with the Weiner laptop.

That was the sum total of our...

(CROSSTALK)

LEAHY: But there was nothing in the report that says it exonerates the president from any question of collusion with the Russians? It says nothing one way or the other; is that correct?

HOROWITZ: We did not look into collusion questions.

LEAHY: So I just note that the president says it totally exonerates him, even though there is no conclusion one way or the other about the question of collusion with the Russians.

Now, Director Wray, after learning that the FBI utilized a confidential source during the early stages of the Russia investigation, the president described it as a scandal bigger than Watergate.

I'm one of the few people here that -- in fact, the only person in the Senate that remembers directly knowledge of Watergate. I tend to disagree with him. And I would say that confidential sources are a routine investigative tool.

I have got a -- I have a document that is publicly available in the FBI's online FOIA library. It's a redacted interview summary from the Clinton investigation. It shows that the FBI used a confidential human source in September 2015, well into Secretary Clinton's campaign for president.

So, Director, does a possible use of confidential sources in either the Clinton or Russia investigation by itself show any wrongdoing by the FBI?

WRAY: Senator, as you alluded to, we use confidential sources in all manner of investigations, covering kind of the waterfront, and it's a very, very, very important tool in that mission.

LEAHY: You also have been -- prosecutors know you probably don't have a significant prosecution without some confidential sources.

[15:05:05]

Now, Director Wray, the president said on Friday the Mueller investigation has been totally discredited by the inspector general report.

I asked you last month when you before the Appropriations Committee about the Russia investigation. You confirmed at that time you do not believe it is a witch-hunt.

Now, the special counsel investigation has already resulted in the indictment of 20 individuals, three Russian companies. Do you have any reason to believe that this investigation has been discredited?

WRAY: Senator, as I said to you last month and as I said before, I do not believe special counsel Mueller is on a witch-hunt.

LEAHY: Thank you, and I appreciate that. And you were very direct in both occasions.

Now, the mistakes made by Director Comey during the Hillary Clinton investigation didn't exist in a vacuum. Republicans in Congress relentlessly pressured the FBI to release details concerning the Clinton investigation.

And I'm deeply concerned that we're repeating these mistakes today. The White House, working with allies in Congress, have been aggressively demanding information from the Russia investigation.

And Director Wray and the deputy attorney general pushed back. They have been threatened with impeachment. Well, that's outrageous, obviously something that would never happen. But some accommodations have been made, and members of Congress eager to politicize any details have reviewed a FISA application and learned the identity of a confidential source.

Are you confident that kind of precedent will not damage the FBI in the future?

WRAY: Senator, I think we have two competing interests that we have to balance. We have an obligation to be responsive to congressional oversight. That's important. I think that's part of our job.

But we also have an obligation to protect sources and methods, to protect ongoing criminal investigations, to respect things like grand jury secrecy. And it's a challenge at times to do both, but I'm confident that we can do both as long as both sides are willing to work together on it. And I'm committed to trying to do both.

LEAHY: Thank you very much.

(CROSSTALK)

UNIDENTIFIED MALE: Senator Cornyn?

SEN. JOHN CORNYN (R), TEXAS: General Horowitz, I believe your report summarizes, as regards to former Director Comey, that he concealed from the attorney general his intention to make a unilateral declaration or declination of intent to pursue charges against Secretary Clinton.

He made inappropriate comments on uncharged conduct. He erred when he said that no reason -- he usurped really the role of the attorney general and the Department of Justice when he said that reasonable prosecutor would bring charges under the facts, and that he violated a number of Department of Justice policies and norms. Is that correct?

HOROWITZ: That's correct.

CORNYN: I think your opinion was certainly reinforced by op-ed pieces by former Attorney General Holder, when he wrote an op-ed in "The Washington Post," and by Jamie Gorelick and Larry Thompson, former deputy assistant attorney generals, in an article they wrote: "James Comey is damaging our democracy."

The Rosenstein memo that was written by the deputy attorney general, forwarded to the attorney general and then attached, I think, to a letter whereby the president informed Mr. Comey that he -- his services as director of the FBI were being terminated, is substantially -- are substantially similar to what you found in your report. Correct?

HOROWITZ: I haven't gone back recently and read the letter. I think it's -- a straightforward comparison that could be made about it. I will leave it at that.

CORNYN: Well, the way I read it, it looks to me like you validated what Deputy Attorney General Rosenstein said in his memorandum. Would you dispute that, or do you agree with it?

HOROWITZ: I wouldn't dispute it, but I haven't gone back recently and re-read it.

CORNYN: I think what's so disturbing about this era in the FBI leadership is, it just seemed to be a culture of impunity, where the rules did not apply to the director and his leadership team, but obviously were designed to apply to everybody else.

And, by the way, I agree with Director Wray when he talks about rank- and-file FBI professionals. We're not talking about them. We're talking about a group that somehow went terribly awry in the leadership team of Director Comey.

[15:10:03]

General Horowitz, you mentioned that you found no evidence of bias in the investigation. But you qualify that in talking about documentary and testimonial evidence.

Are you discounting the text messages from Mr. Strzok and Ms. Page, for example?

HOROWITZ: No, what we were trying to do was be clear that we were focused on the very specific investigative decisions we looked at.

And what was significant about the pre -- I'm now talking about the pre-July 5 announcement decisions -- was that Strzok, Page and others were not the sole decision-makers there. They were team decisions, and in many cases prosecutors' decisions, as opposed to the individuals who wrote the e-mails.

We made very clear we were not saying as to every single decision. As you know from doing these kinds of cases, there are hundreds of decisions to be made. And, in fact, we did not find no bias with regard to the October events.

CORNYN: Well, Director Comey was pretty clear that he expected Hillary Clinton to be the next president of the United States, correct?

HOROWITZ: He described that with regard to, yes, the October events, the Weiner laptop.

CORNYN: And sometime in the spring of 2016, he already decided that there would be no recommendation to prosecute Hillary Clinton, correct?

HOROWITZ: Yes. He started drafting his statement on May 2.

CORNYN: And it wasn't until July 5 when he made his initial press conference, where he said that the evidence did not rise to the point where any reasonable prosecutor, basically, would prosecute Ms. Clinton, correct?

HOROWITZ: That's correct.

CORNYN: Do you think it's possible -- or let me just ask you, is it a fair interference to draw that Director Comey, expecting Mrs. Clinton to win the presidency, was thinking about his future as the FBI director?

HOROWITZ: I think that was a concern we had even, certainly where it's even clearer in that October time period, because we have testimony that indicated that when he explained why -- when he explained through his chief of staff why he was going to do what he did on October 28, he was concerned about his survivability.

CORNYN: And when, for example, he used the word grossly negligent, which are the words of the statute in describing Ms. Clinton's conduct, later on, it was changed to extremely careless.

HOROWITZ: Right.

CORNYN: Do you feel like he was riding toward a preordained result or that this was a genuine process to think through what the evidence was and try to apply the applicable law?

HOROWITZ: I think that would be hard to say and probably would be speculation in terms of what he was thinking at the time. We try and lay out in great detail the various places, including that, how it changed and how it evolved and why.

But I'm not sure I can sit here and say precisely what was his thinking on the time.

CORNYN: Were you shocked to learn that Director Comey had his own private Gmail account at a time he was investigating a possible prosecution for Mrs. Clinton for recklessly using a private e-mail server?

HOROWITZ: I have to say it surprised us that he would have been sending e-mails, although they were unclassified, but nevertheless using a personal Gmail account.

CORNYN: Director Wray, it's -- Director Comey has talked about higher loyalty to his own sense of justice and his belief that that was required in order to protect the reputation of the FBI, rather than to follow established policies and guidelines and the law.

I believe that that hubris that Director Comey was demonstrating and suggesting that the rules did not apply to him that applied to everybody else has brought this firestorm down on the FBI.

Do you think it's appropriate for any director of the FBI to attribute their actions to a higher loyalty, to some other cause, other than the rule of law and the policies and guidelines of the Department of Justice?

WRAY: Well, Senator, I don't want to speak to what Director Comey may or may not have been thinking, but what I can tell you is that my own view is that the rules, the policies, the guidelines, the long- established norms, as the inspector general's report refers to them, those things are there for a reason and it's important that we track those.

And that's why, when I'm going around from field office to field office doing town halls with over 30 offices, the point I keep making everywhere is that it's not enough to say that you're going to do the right thing for the right reason. That pretty quickly can become the ends justify the means.

What we need to be doing is doing the right thing in the right way, so not to let the ends justify the means, but let our means justify our ends.

[15:15:03] CORNYN: Well, General Horowitz, I believe that your report, as comprehensive as it was -- and I commend you on the great care that you have undertaken -- I don't necessarily agree with every word of it, including -- especially the no -- finding of no bias.

But I think your findings call into question the credibility of the whole Clinton e-mail investigation and cast a cloud over the Russian -- Russia investigation, because the same group of people that led the Clinton investigation were leading the Russian investigation until at least such time as Director Mueller, the special counsel, terminated their services because of the appearance of conflict of interest.

Do you share those concerns?

HOROWITZ: I share the concerns. And we wrote, in fact, here that it did cast a cloud over the entire Clinton e-mail investigation.

CORNYN: And the Russia investigation?

HOROWITZ: Well, we haven't reached a conclusion on that.

But we laid out the concern that, when this choice was made in October whether to work on the -- in the case of Mr. Strzok in particular, the Russia organization vs. the Weiner laptop matter, the choice was to make that a higher priority, the Russia matter, over the Clinton matter, and we were not convinced that that was not a biased decision.

UNIDENTIFIED MALE: Senator Durbin.

SEN. RICHARD DURBIN (D-IL), MINORITY WHIP: Thanks, Mr. Chairman.

Thank you very much for your testimony.

The communication, in which you go into detail describing, between Peter Strzok and Lisa Page includes some damning statements. And you make that very clear in your conclusion about their possibly using their governmental authority to achieve a political result. Is that correct?

HOROWITZ: That's correct. I felt that was a very serious error.

DURBIN: And that should not be downplayed by anyone. It was...

(CROSSTALK)

HOROWITZ: That should not be downplayed by anybody. I can't think of something more concerning than a law enforcement officer suggesting that they're going to try and use or may use their powers to affect an election.

DURBIN: What did special counsel Mueller do when he learned about the statements by Mr. Strzok?

HOROWITZ: We informed him on July 27 of the last year of our first findings of these texts. We subsequently gained more. But my understanding is, within a week or two of that, he had been removed from the investigation.

DURBIN: Which was the right thing to do.

And I want to make it clear, based on previous questioning here, no one is making excuses for these things. Mr. Strzok said something that was inappropriate, unacceptable for a person in his position.

Mr. Mueller responded professionally and terminated him as soon as he learned that. I hope that's on the record and clear.

You spent a lot of time -- and I just -- I want to echo the comments made earlier in this work -- reviewing all these documents, texts, and interviewing all of these witnesses. And I know you, and I have heard your testimony, and there's no doubt that you know this inspector general's report in detail.

Lots of people reacted to it, politicians, individuals, news commentators and others.

I'm going to ask you for the record specifically your thoughts on one reaction. Last Friday, President Trump said -- and I quote -- I think that the report yesterday, maybe more importantly than anything, it totally exonerates me. There was no collusion. There was no obstruction, and if you read the report, you will see that," the president said.

He went on to say: "I did nothing wrong. There was no collusion. There was no obstruction. The I.G. report yesterday went a long way to show that" -- end of quote.

General Horowitz, does your report totally exonerate President Trump?

HOROWITZ: I'm going to stick, Senator, to what our report does speak to, which is the handling of the Clinton e-mail investigation, and to the extent it touches on the Russia investigation, it does it, as we lay out here, when the Weiner laptop comes out in October.

And I can't speak beyond to what -- how this report might impact the Russia investigation or what individuals think it -- how it may impact the rest of the Russia investigation.

DURBIN: I ask you to clarify that. You can't speak to whether your report exonerates, because it does or it doesn't? What are you saying?

HOROWITZ: We did not investigate -- as we laid out here, when we saw those text messages, many of which are in that July-August time period, we made it quite clear here that this review does not touch on the Russia investigation, with the exception of what occurred in October with the Weiner laptop.

DURBIN: And does it say anything as the issues of collusion and obstruction in that Russia investigation?

HOROWITZ: We don't go into any issues related to the Russia investigation beyond what I mentioned. [15:20:01]

DURBIN: Last Friday, when he was talking about the I.G. report, President Donald Trump said the special counsel investigation led by Robert Mueller -- quote -- "has been totally discredited."

Mr. Horowitz, does your report show any reason to doubt Robert Mueller's integrity or discredit any decisions he has made?

HOROWITZ: I'm not going to make, Senator, a judgment on special counsel Mueller's investigation. I can only -- I'm going to speak to what I have here.

DURBIN: I want to stay within the four corners of your report.

(CROSSTALK)

DURBIN: Did you address the credibility of the investigation of Robert Mueller?

HOROWITZ: We did not address the credibility of the special counsel's investigation here.

We laid out what occurred and we laid out what individuals did in October where it touches the Russia investigation.

DURBIN: Last Thursday, Senate Majority Leader Mitch McConnell said in an interview with "The Washington Examiner" he wanted the Mueller investigation to conclude.

He said -- quote -- "If the I.G. is through, why can't the Mueller investigation finally wrap up?"

Was there any connection in substance or duration between what you were tasked in doing and what Robert Mueller is tasked in doing?

HOROWITZ: gain, other than the issues we talked about where we identify text messages and brought them to his attention, we do not have any connections, interactions in that regard.

DURBIN: Director Wray, my colleague Senator Leahy and others have raised the question about the New York field office and leaks in that field office.

And there are quotes in the report relative to Mr. Comey's concern that New York field office would leak information. And that's one of the reasons why he made certain decisions.

As Senator Leahy said, former Mayor Giuliani has bragged publicly about information that he's received from that office.

What are we to make of this? Is this being investigated? Is this just a problem that's acknowledged and accepted?

WRAY: Senator, I think leaks are unacceptable. I think they have a pernicious effect on our ability to conduct investigations, to protect sources and methods, to retain our foreign liaison partner relationships.

They damage the privacy of individuals under investigation. I could go on and on. So, I have a very strong view about it, and we're doing a number of things to try to make sure we crack down on it.

DURBIN: That's what I want to get to.

WRAY: Right.

DURBIN: What -- what are we doing about it?

WRAY: Well, I can't comment on any specific investigation, but we have -- as I think I mentioned earlier, we have a dedicated unit specifically focused on leak investigations. That's new.

We have a policy that we issued in November that makes the rules crystal clear, so that there can't be any ambiguity for any of our employees in any office about what their obligations are. And when there are misconduct found, we will report them to our OPR for appropriate actions. And if we find one that is criminal, we will pursue it criminally.

DURBIN: Mr. -- Director Wray, I just have a minute-and-a-half left. And I would like to ask one last question, please.

There was a question raised earlier about Mr. Comey having a separate personal phone that he was using and whether or not that was an unusual thing for a person in his position.

There's been -- reportedly, the president uses two White House-issued iPhones. One allows him to make calls. The second is for his Twitter's -- his Twitter habit.

According to Politico, the president has -- quote -- "resisted his aides' entreaties to swap out the Twitter phone on a monthly basis because it's too inconvenient."

Supposedly, the president has given Kim Jong-un his direct phone number. If he was referring to his cell phone, this would some interesting security concerns.

Are you aware of these reports about various phones that are being used by the president? Are you concerned about whether or not sensitive information from those devices may be intercepted by our adversaries?

WRAY: Senator, I'm not aware of the particulars of the president's phone usage.

DURBIN: Would it be a matter of concern if anyone who has access to such information was using a device that could be intercepted by our enemies?

WRAY: I think it's important for all of us to recognize that device security is a particularly important part of our security, and it's something that we emphasize heavily in the intelligence community. DURBIN: And, of course, we have gone to great lengths when it comes

to Hillary Clinton to make that point.

Thank you very much.

UNIDENTIFIED MALE: Senator Lee.

SEN. MIKE LEE (R), UTAH: Thank you, Mr. Chairman.

Thanks to both of you for being here.

I want to point out one clarifying matter at the outset. The report did, in fact, find bias. So, insofar as anyone is suggesting that there was no bias found here, that's just not true. There was in fact bias found. What wasn't found was any smoking gun indicating that that bias translated to and was admitted to have translated to how anybody did their job.

[15:25:12]

But the absence of evidence on that point is not the same as evidence of absence. And so I think we need to keep that in mind as we have this discussion.

Mr. Wray, I would like to start with you on this point. Let's assume for a minute that these text messages between Strzok and Page, let's assume that these came about earlier in the discussion, and that you just swap out the name Trump for Hillary, such that the text messages said, well, she's not ever going to become president, is she? No, no, we will stop it.

What if that had been the exchange occurring earlier in the -- midway investigation? In that circumstance, in that hypothetical, could she, as a practical matter, have been prosecuted, assuming that the facts warranted it, and assuming that people making the charging decision concluded that there was a good cause to charge her?

Or would the bias displayed in that exchange make it too difficult to proceed?

WRAY: Well, Senator, I'm reluctant to engage in discussions of hypotheticals.

LEE: It's what we do. We're lawyers.

WRAY: Right.

LEE: We talk about hypotheticals, right?

WRAY: But I'm no longer practicing as a lawyer.

(LAUGHTER)

WRAY: Now I get to blame the lawyers. It's a wonderful experience.

(LAUGHTER) WRAY: So I'm not going to try to engage in specific hypotheticals.

What I would tell you is that I expect all of our employees, all of our employees, to engage in professional conduct, including in how they communicate with each other by text message.

LEE: I get that, and that didn't happen here.

So if -- let's make it more of a hypothetical then. Let's take it a step back. Could that be a complicating factor if you had text messages between agents involved in a case indicating bias against the target of that investigation? Can that be a complicating factor in deciding whether to bring charges?

WRAY: I think any time that agents conduct themselves in a way that doesn't have not just objectivity, but the appearance of objectivity, that can have an impact on the viability of the case.

LEE: Thank you.

Mr. Horowitz, let's talk about these text messages for a minute. Was it easy for you to get them?

HOROWITZ: No, it was -- well, the initial batch was easy. They were with the FBI. We requested them.

The latter part of this over the last six months or so was challenging.

LEE: Challenging. When you say challenging, tell me what you mean by that.

HOROWITZ: So, when they were produced by the FBI, it turned out that there was a period during which, about four to six months -- I don't remember the exact time -- where there were no text messages produced to us.

It turned out there was a flaw in their collection software or a failure in their collection software. We then went out and seized and obtained their two phones, voluntarily -- I shouldn't say seized -- obtained their phones from the FBI.

These are now FBI devices we're talking about. And our cyber-forensic team actually undertook a series of steps to seek to exploit, to extract the missing text messages from the phones.

We first used our own tools to do that. That was step one. We then went to a contractor that we use, a vendor that we use to see whether there were additional tools. They provided us with some additional tools. So, we did a second extraction and gained more text messages.

We then went to the Department of Defense and asked them if they had additional tools that those first two steps didn't use. They said they did. And they gave us those tools, and we used that and extracted more text messages. We then went to the FBI and said, OK, here are the steps we have

taken. Did we miss anything? Would you do anything differently? They said they wouldn't.

We then did a quality control check, as you're supposed to do, again, following the rules, our forensic examiners. And they discovered in that last search, which occurred last month, in May, that the phone had a database on it that was actually also doing a collection of text messages.

They extracted those messages from the phone, and found the second part of the August 8 text. "No, no, we will stop it." That was found in early May because of that fourth effort to extract information from the phones.

It turned out that the FBI wasn't aware that that database on there, which was supposed to be an operating function, was actually collecting data.

LEE: They weren't aware of that and hadn't given it to you, but had they gone through the same steps you had gone through, they might have found it, in other words.

HOROWITZ: Correct.

LEE: Does that cause you to have any lack of confidence about whether or not you have all the evidence you need, all of the evidence you have requested?

HOROWITZ: Clearly, as a result of that effort -- and we're going to issue a separate report about the technological efforts we undertook there -- and I will be careful on how I describe them, because I'm also a lawyer, not a --