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Congressional Testimony of FBI Director Comey Continues. Aired 2-2:30p ET

Aired July 07, 2016 - 14:00   ET


GROTHMAN: -- 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.

COMEY: Correct.

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 haven 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?

COMEY: Correct.

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?

COMEY: Correct.

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?

COMEY: Correct.

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; 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.