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Continuing Coverage of Textimony by FBI Director Comey Before Congress. Aired 1:30-2p ET

Aired July 07, 2016 - 13:30   ET


LUJAN GRISHAM: -- independent and apolitical Department of Justice investigations on any level, whether it involves Hillary Clinton or anybody else.

[13:30:06] Do you agree with that general statement?


LUJAN GRISHAM: For me, that's a really important ethical line that I believe should never be crossed. I worry that some of what we did today, could be frankly interpreted as violating that very standard.

And for that I certainly want the American people and my constituents who are watching to understand that very important line and to be sure that our responsibility is better served making sure that we do have, in fact, an independent body, whose aim it is to bring about truth and justice and uphold the federal law.

And, sir, based on everything that you said today, I don't see any reason to disagree with your statements, your assessments or the explanation of that process. With the little time I do have left, I do want to say that given that some of the classified material that we've both debated and talked about today can be classified later or up classified.

Or that other agencies have different determinations of what constitutes classified and not. I do think that's a process that warrants refining. And if something can come out of this hearing about making sure that we do something better in the future, for everyone, not just appointed or elected officials that, that ought to be something that we do.

I'm often confused by some of the things that are clearly told to us in a classified briefing that appear to be different or -- or already out in the public in some way, and I'm not sure who's making those decisions. I honor my responsibility to the highest degree, but I think that's a process that could use some significant refining, and that's my only suggestion, sir.

Thank you for being here today.

COMEY: Thank you.

CHAFFETZ: I thank the -- I thank the gentlewoman. We'll now recognize the gentleman from Georgia, Mr. Carter for five minutes. CARTER: Thank you Mr. Chairman. And Director Comey, thank you for being here today. I appreciate it. I'm over here.

COMEY: Oh, sorry. CARTER: I'm over here. And I'm gonna -- I'm gonna be real quick and -- and try to be succinct. I -- I want to clarify some things that you said, and -- and look, I -- I don't want to go over everything that everybody's been through today. I mean, we've had some great questions that have -- have asked you about, you said this, she said that.

Representative Gowdy made a great case of, you know, this is what she said under oath, and -- and publicly, and yet, you dispute that and say, no, this is the case. But, look I'm just -- just got a couple of questions. OK?

First of all, did I understand you correctly that your decision, that this decision was made within 3 and 1/2 hours of -- of an interview, and that was all?

COMEY: No, we investigated it for a year.

CARTER: You investigate, but you interviewed her for 3 and 1/2 hours last week and then came to the conclusion?

COMEY: Correct. We interviewed her on Saturday for 3 and 1/2 hours, the last step in a year-long investigation.

CARTER: OK. Now, as I understand that Hillary Clinton has testified that -- that the servers that she used were always safe and secure. Yet, you refute that and say, no, that is not the case at all. Were they ever secure? Were the servers that she would use, were they ever secure?

COMEY: The challenge of security is not binary, it's just degrees of security. It was less secure than one at the State Department, or as I said, even one at a private commercial provider like a Gmail.

CARTER: Well, let me ask you this, she's got staff, and she's got people around her. Did they know she was doing this? Did they know that she was using these other devices? Did anybody ever bring it to her attention and say, hey, you don't suppose to be doing that?

COMEY: I think a lot of people around the secretary understood she was using a private personal email set...

CARTER: Than why didn't they say something? Don't they have a responsibility as well?

COMEY: That's an important question that goes to the culture of the State Department that's worth asking.

CARTER: I -- you -- I mean, look we all surround ourselves, we get people and we depend on to help us. I don't -- should they be held responsible for that? For not bringing that to someone's attention? If I see someone who's breaking -- who's not following protocol, is it my responsibility to report them? COMEY: Yes. Yeah. CARTER: Well, I certainly...

COMEY: Especially when it comes to security matters. Obligation to report a security violation that you may witness, whether it's involving you or one of your co-workers. But this is about -- so if someone...

CARTER: What about Bryan Pagliano? Did -- did he ever know? Do you know if he knew that she was -- she was not following proper protocol here?

COMEY: He helped set it up.

CARTER: He helped set it up? So obviously he knew.

COMEY: Yeah. Obviously he knew that...

CARTER: OK, is anything going to be done to him? Any -- any prosecution, or any discipline, any...

COMEY: I don't know about discipline, but there's not going to be any prosecution of him.

CHAFFETZ: Will the -- will the gentleman yield?

CARTER: I yield.

CHAFFETZ: My understanding, Director, is that you offered him immunity. Why did you offer him immunity and what did you get for it?

COMEY: You know, that I have to -- I'm not sure what I can talk about in open setting about that.

CHAFFETZ: Well, he's not going to be prosecuted, so...

COMEY: Right, but I -- I want to be careful. I'm doing this 24 hours after the investigation closed. I want to be thoughtful, because we're -- we're as you know, big about the law, that I'm following the law about what I disclose about that. So I'll have to get back to you on that one. I don't want to answer that off the cuff.

CARTER: Director Comey, I -- I am not a lawyer. I'm not an investigator. I'm a pharmacist, but I'm a citizen. And citizens are upset. I watched with great interest last -- earlier this week when you laid out your case. And -- and I'm telling you, you laid it out, bam, bam, bam, here's what she did wrong, wrong, wrong, wrong.

And then all of a sudden you used the word, however. And -- and it was like you could hear a gasp throughout the country of people saying, ah, here we go again. Do you regret presenting it in a way like that?

COMEY: No, I -- I'm highly -- I think I didn't use the word "however." I try never to use that in speaking, but I did lay it out, I thought in the way that made sense and that I hoped was maximum transparency for people. And I know... CARTER: But that's the point -- I'm sorry, but that's the point it didn't make sense. The way you were laying it out, it would have made sense in the way that the questions have been asked here and -- and we've made all these points of where -- where she was obviously told lies underneath -- under oath that it would have been OK, we -- we finally got one here.

COMEY: Yeah, I think it made sense. I just hope folks go back, maybe with a cup of tea and open their minds and read my statement again, carefully. But again, if you disagree, that's OK.

CARTER: But it -- but it -- but when we -- look, I've only been here 18 months. And I'm gonna tell ya, it -- this "inside the beltway" mentality, no wonder people don't trust us.

COMEY: Well, I -- I have no -- I don't know who you're talking about. I have no kind of "inside the beltway" mentality.

CARTER: But this is an example of what I'm talking about here. It -- it -- it -- just was as a non-lawyer, as a non-investigator, it would appear to me, you have got a hell of a case.

COMEY: And I'm telling you do, and I hope people take the time to understand why.

CARTER: Mr. Chairman, I yield back.

CHAFFETZ: Thank the gentleman. I will now recognize the gentleman from Arizona, Mr. -- Mr. Goshar. Oh, let's go ahead and go to the gentleman from South Carolina, Mr. Mulvaney first.

MULVANEY: Thank you gentleman. Director Comey, earlier today you heard a long list of statements that Ms. Clinton has made previously, both to the public and to Congress that were not factually accurate.

I think you went down the whole long list. When she met with you folks on Saturday last week, I take it she didn't say the same things at that interview?

COMEY: I'm not equipped sitting here without the 302 in front of me to answer in that broad...

MULVANEY: But it's your -- it's your testimony...

COMEY: But I have no basis -- we do not have a basis for concluding she lied to the FBI.

MULVANEY: Gotcha. Did anybody ask her on Saturday, why she told y'all one thing and told us another?

COMEY: I don't know as I sit here. I mean, I can -- I'll figure that out.

MULVANEY: Would that have been of interest to you in helping to establish intent?

COMEY: It could have been, sure.

MULVANEY: More importantly I think, did anybody ask her why she set up the email system as she did in the first place?


MULVANEY: And the answer was convenience?

COMEY: Yeah, it was already there. It was a system her husband had and so she just jumped on to it.

MULVANEY: Were you aware that just earlier this week, her -- her assistant actually said it was for an entirely different reason? It was to -- it was to keep emails from being accessible, and that it was for concealment purpose. So she was -- Huma Abedin was asked in her deposition why it was set up.

And it was said, to keep her personal emails from being accessible. To the question, to whom? To anybody. Where you aware of that testimony?

COMEY: Generally, yes.

MULVANEY: OK. So here's -- here's sort of the summary I take from what we've done today, which is that over the course of the entire system, what she did, she intentionally set up a system. According to your -- to your testimony, your findings, she was careless regarding its technical security.

I think you said, that even a basic free account, a Gmail account had better security than she had. And she did that according to her own staffer's sworn deposition, "For the purpose of preventing access to those emails." As a result of this, she exposed top secret information to potential hack by foreign actors. You've seen the emails. We have not.

I think you said earlier that the emails could be of the sort that would put national security at risk. And I think we had testimony earlier that -- and got you to -- to acknowledge that it might even put our agents overseas at risk.

COMEY: Yeah, I don't think I agree with that. But, it's still important.

MULVANEY: Okay, all right. She kept all of that secret until after she left the State Department. She lied about it, or at least made untrue statements about it, after it finally came to light. She thereafter ordered the destruction of evidence, evidence that was destroyed so thoroughly, that you folks could not do an adequate recovery.

Yet she receives no criminal penalty. So I guess this is my question to you, are we assume, as we sit here today, that if the next President of the United States does the exact same thing on the day he or she is sworn into office, sets up a private email service for the purpose of concealing information from the public or from anybody, that as a result of that, potentially exposes national security level information to our enemies, lies about it and then destroys the evidence during an investigation, that there be no criminal charges, if you're the FBI Director, against that person?

COMEY: Yeah, that's not a question the FBI Director should answer. I mean, I ...

MULVANEY: No, I'm asking you, I'm asking you if, if she does the exact same thing as President as she's done today, your result would be the exact same as it was 40 hours ago. There would be no criminal findings, right?

COMEY: If the facts were exactly the same?


COMEY: And the law was exactly the same?


COMEY: Yeah, the result would be the same.

MULVANEY: And I guess under the theory that if there's, the law is to be equally applied to everybody. That if a White House staffer does the exact same thing, for the exact same purpose and exposes the exact same risks, that there'll be no criminal action against that person.

It could be, as you've mentioned administrative penalties, there are no administrative penalties as I understand it, by the way, against the President, correct?

COMEY: I don't think so, but I'm not at ...


MULVANEY: I don't think there are either. I don't think, I don't think you can take away the President's top security clearance and I'm pretty sure you can't fire the President, because we've tried.

Not only would a staffer not have any criminal charges brought against them, but it, I suppose a summer intern could do the exact same thing under the theory that, we're going to apply the law equally regardless of who the people are.

My question to you is this, and it's not a legal question, it's, I guess it's a common-sense ordinary question that folks are asking me, from a national security standpoint, somebody who used to lecture on that, does that bother you?

COMEY: The mishandling of classified information bothers me no matter what circumstance it occurs in, because it has national security implications.

MULVANEY: Does it bother you that the precedent that you are setting today, may well lead to a circumstance where our top secret information continues to be exposed to our potential enemies? COMEY: No, in this sense, the precedent that I'm setting today is my absolute best effort to treat people fairly without regard to who they are. If that continues to be the record of the FBI and Justice Department, that's what it should be.

The rest of the implications in your question, are beyond that.

They're important, but they're not, they're not for the FBI to answer. We should, we should aspire to be apolitical, facts in the law, treat Joe the same as Sally as Secretary so-and-so. That's my goal.

MULVANEY: If you would come to a different decision, I, by the way, I, I tend to (inaudible) agree everything you just said, if you'd come to a different decision, do you think it would have a different precedential value, that would keep our information more safe?

COMEY: If we decided to recommend criminal ...


COMEY: Charges here? I don't know, that's a good question. I don't know. I could, I could argue it both way, I guess I'm a lawyer, I can argue everything both ways, but I could argue that both ways.

MULVANEY: All right, thank you Director Comey. Thank you Mr. Chairman.

COMEY: Yeah. CHAFFETZ: Thank you Gentlemen. Now recognize the gentlemen from Arizona, Mr. Gosar, for five minutes.

GOSAR: Thanks Mr. Chairman. Thank you Mr. Comey for being here. My, my colleague alluded to Brian Pagliano, the IT advisor and were you made aware of the deal of immunity with him?

COMEY: I am aware.

GOSAR: Now that Attorney General Lynch has stated there'll be no charges, there's many that suspect that in his (inaudible) that he failed to answer questions in his congressional deposition, that he had something to hide. Why did your investigators at the DOJ decide it was necessary to offer Mr. Pagliano immunity?

COMEY: As I said in response to your earlier question, I need to be more thoughtful about what I say about an immunity deal in public. May be totally fine, just don't want to screw up because we're doing this quickly.

GOSAR: Okay.

COMEY: In general I can answer, because I've done it many times as a Prosecutor. You make a grant of immunity in order to get information that you don't think you could get otherwise.

GOSAR: But you know that there maybe something there in hindsight, right? You're looking, you're looking ahead because of the pertinent information this person possesses? COMEY: Right, they may have, they, you believe they have relevant

information to the investigation.

GOSAR: So, did the investigators draft an interview report known as a 302 with Mr. Pagliano?


GOSAR: Do you have any importance of this case where you commit to voluntary disclosing the 302's for review of Brian Pagliano and other witnesses interviewed on, as part of your investigation?

COMEY: I'll commit to giving you everything I can possibly give you under the law, and to doing it as quickly as possibly. That's said then, that means I got to go back and sort it out. For example, the 302 of Secretary Clinton, it's classified at the TSSCI level, so we got to sort through all that, but we'll do it, we'll do it quickly.

GOSAR: Yeah, I know you've done this, because you've done this for Lois Learner and other cases, so we would expect that. Now, Director Comey, Hillary Clinton testified before Congress and told the American people multiple times that she never emailed any classified information to anyone on her private email servers. Your investigation revealed a 110 of Clinton's emails, 52 email chains contained classified information. Clinton told the American people, and I quote, "The laws and regulations in effect when I was Secretary State, allowed me to use my email for work. This is undisputed." Your investigation revealed that that also wasn't true. Clinton claimed she turned over all her work related emails.

Your investigator, investigation revealed that this wasn't also true. Clinton claimed that there was no security breaches and her private servers had numerous safeguards. Your investigation revealed eight email chains on Clinton's private servers containing top secret information. And that it was possible, hostile, "Hostile actors gained access to sensitive information."

Further, multiple people she emailed with regularity were hacked by hostile actors and her private servers are less secure than a Gmail account, making a security breach all the more likely. Director Comey, it's a federal crime, as you know, to mishandle classified information in a grossly negligent way, and you stated Clinton and her colleagues were extremely careless.

Clinton was publicly, has publicly stated she was well aware of the classification requirements. Then she broke the law anyway. Multiple people have been prosecuted for less and there's a growing trend of abuses in senior level employees.

The only difference between her and others, is her total resistance to acknowledge, to acknowledge her irresponsible behavior, that jeopardized our national security and the American people. I think you should have recommended Clinton be prosecuted under Section 793, or Section 1024 or Title 18.

If not who, if not now, when? Your recommendation deprived the American people of their opportunity for justice in this matter.

There shouldn't be a double standards for the Clintons and they shouldn't be above the law. With that, I'm going to yield the rest of my time, gentlemen from South Carolina, Mr. Gowdy.

GOWDY: Thank you Doctor Gosar. Director Comey, I want to go back to the issue of intent for just a second. We could disagree on whether or not it's an element of the offense, let's assume for the sake of argument, that you're right and I'm wrong and that it is an element of the offense.

Secretary Clinton said that she was, "Well aware of classification requirements". Those are her words, not mine and not yours. So if she were, "Well aware of classification requirements", how did that impact your analysis of her intent? Because I've heard you this morning, describe her as being less than sophisticated. She disagrees with that.

COMEY: Well, I was talking about technical sophistication. The question is, I would hope everybody who works in the Government is aware of classification requirements. The question then is, if you mishandle classified information, when you did that thing, did you know you were doing something that was unlawful? That's the intent question.

GOWDY: All right, well you and I are going to have to get together some other time and discuss all the people we prosecuted who were unaware that they were breaking the law. That, there are lots of really dumb defendants out there, who don't know that what they're doing is against the law. But let's go with what you say ...

COMEY: I disagree. I, you may have prosecuted a lot of those folks. I did not prosecute all those folks.

GOWDY: I was a gunner prosecutor and you were a white collar prosecutor. Trust me, there, there are lots of people who don't know you can't kill other people. Let me ask you this, on the issue of intent, you say it was convenience, okay? You're a really smart lawyer, if it were convenience Director, she wouldn't have waited two years to return the documents and she wouldn't have deleted them four years after they were created.

So you can't really believe that her intent was convenience when she never turned them over until Congress started asking for them, could you?

COMEY: Yeah my focus, and I hope I made this clear, my focus is on, what was the thinking around the classified information. I mean it's relevant why the system was set up and the thinking there. But she didn't, I don't understand her to be saying, we'll I think I've said it already, that, that's my focus.

GOWDY: So, I know I'm out of time, but, but it just strikes me, you are reading a specific intent element into a gross negligence statute, not even general intent?

CHAFFETZ: Gentlemen's time.

GOWDY: A specific intent ...

CHAFFETZ: Gentleman's time has expired.

GOWDY: Element.

COMEY: Yeah. Is that? Oh, sorry.

CHAFFETZ: Go, the Director can answer.

COMEY: I enjoyed, I enjoyed talking with him. The, the question you've got to ask is, why is it that the Department of Justice, since 1917, has not used that gross negligence statute for charging at once in an espionage case. And whether their decision was smart or not, that is the record of fairness.

And so you have to decide, do I treat this person against that record? And if I do, is that a fair thing to do? Even if you're not worried about the constitutionality of it, and my judgment is, no reasonable prosecutor would do that. That would be celebrity hunting. That will be treating this person differently than John Doe.

MULVANEY: Director, I want to follow up on that.

Why did you do what you did? My interpretation of what the FBI is supposed to be doing, is to come to a determination of the facts and then turn it over to a prosecutor. You were a prosecutor but you are not a prosecutor now.

COMEY: Right.

MULVANEY: It is unprecedented that an FBI Director gave the type of press conference that he did and took a position that an unreasonable prosecutor would only take this case forward. Why would do you that?

COMEY: Yes, it's a great question.

Everything I did would have been done privately in the normal course. We have great conversation in the FBI, as prosecutors we make recommendations, we argue back and forth. What I decided to do was offer transparency to the American people about the "whys" of that, what I was going to do because I thought it was very, very important for their confidence in the system of justice. And within that their confidence in the FBI.

I was very concerned that if I didn't show that transparency, that in that lack of transparency people would say, "what is going on here -- something seems squirrely here? So I said I would do something unprecedented because I think it is unprecedented situation.

Now, the next Director who is criminally investigating one of the two candidates for president may find him or herself bound by my precedent. OK, if that happens in the next 100 years, they will have to deal with what I did. I decided it was worth doing.

CHAFFETZ: Mr. Cummings.

CUMMINGS: Director, I have just one question.

I'm sitting here listening to this and I really -- this is something that bothered me in the Lois Lerner case and in this case. I'm wondering of what your opinion -- Ms. Lawrence talked about this -- the chilling effect of your having to come here and justify your decisions.

I know that you have been really nice and you explained why you did what you did and I'm glad you are doing it, but -- you know, do you at all -- taking off -- I'm talking about -- here you have people making decisions and then being pulled here in the Congress to then say - OK, to be questioned about the decisions. At what point, or do you even think about it becoming a chilling effect? Because most people when their decision is made, they don't get this kind of opportunity.

As you well know, there are no statements. They either get indicted or they are not. I know you see this as a special case. I'm wondering whether you agree with Ms. Lawrence that we may be just going down a slippery slope? That's all I want to know.

COMEY: My honest answer is I don't think so.

When I talked to the Chairman, I agreed to come because I think the American people care deeply about this. There's all kinds of folks watching this at home or being told, "well, lots of other cases are being prosecuted and she wasn't." I want them to know that's not true.

I want to have this conversation. I welcome the opportunity. Look, it's a pain. I have had to go to the bathroom for about an hour but is...

CHAFFETZ: Don't worry, we're half way done.

COMEY: It is really important to do because this is an unprecedented situation.

Transparency is the absolute best thing for me and for democracy. And I realize Mr. Chairman, my folks told me I screwed up one fact that I should fix. I was mis-remembering, in the Petraeus case, we didn't find the note books in the attic, we found it in his desk. So I wanted to make sure I was fair to him about that.

I really don't think it has a chilling effect. Again, if there is another presidential candidate being investigated by the FBI, maybe they will be bound by this. Lord willing it will not happen again ,certainly, my 2,619 days left on this job. It won't happen on my term but if it does, I won't be chilled.

CHAFFETZ: If we need a humanitarian break just give me a cue.

COMEY: I feel like we are almost done.

CHAFFETZ: We're on the right trajectory, yes.

We would like to recognize the gentleman from Alabama, Mr. Palmer for five minutes.

PALMER: Thank you Mr. Chairman.

Director Comey, your statement on Tuesday indicated that Secretary Clinton and her colleagues sent or received e-mails marked classified on an unsecured private e-mail server that may or may not have been hacked by foreign power. Are you aware that teenage hackers hack personal accounts of CIA Director John Brennan, the Director of U.S. National Intelligence, James Clapper and FBI deputy director Mark F. Giuliano?

COMEY: I am intensely aware. They didn't hack in the way we normally think of it, but they got there by treachery, got access to their accounts.

PALMER: The point I want to make that is that these were personal - commercial protected personal e-mail accounts that contained no classified information. Yet, Ms. Clinton used her personal e-mail, not a commercial account, on a server in her basement without even this basic protection, and transmitted classified information through that account.

If teenagers in England were able to hack personal e-mail accounts of the Director of the CIA, the Director of the U.S. National Intelligence, and the Deputy Director of the FBI, does it concern you that sophisticated hackers or hackers working for foreign interest never attempted? I mean, does it seem reasonable that they never attempted or were never successful in hacking Mrs. Clinton's personal e-mail accounts or one of her devices?

COMEY: It concerns me a great deal. That is why we spent so much time trying to see if we could figure out -- see finger prints of that.

PALMER: You said in your statement regarding your recommendation not to prosecute - to be clear, this is not to suggest that in similar circumstances a person who engaged in this activity would face no consequences. To the contrary, these individuals are often subject to security or administrative sanctions, that is not what we are deciding here. Do you stand by that?


PALMER: I thought you would.

You also said, "you could not prove intent." I want to touch on a couple things here. One, a reasonable person would not have compromised classified information by keeping that information on inadequately secured private devices. In other words, such a person would be viewed as unreasonable and unsuitable for any position in our government that included any responsibility for handling and protecting classified information. Would you agree? COMEY: I would agree it would be negligent. I can't prejudge a suitability determination but it would be definitely be stared at very hard.

PALMER: Let me tell you why I bring this up.

I sat up here next to Mr. Hurd who served our country valiantly, put his life on the line. I don't know if you can sense the passion and intensity of his questions, because he knows people whose lives are on the line right now. In regard to his questions, if someone -- a U.S. intelligence agent had mission compromised or worse, had been killed, or injured, or captured because of carelessness of someone responsible for protecting classified information, would intent matter at that point?

COMEY: In deciding whether to prosecute the person, of course. Yes, that's the answer. Of course, it would - the matter would be deadly serious, but the legal standards would be the same.

PALMER: What we are dealing with in this hearing is not the lack of due diligence in handling routine government data or information, but the lack of due diligence by Secretary Clinton and her carelessness in handling classified information that could have compromised American national security - as Mr. Hurd pointed out, the missions and personal safety of our intelligence agents. That troubles me greatly.

And I think the issue here -- I do respect you. I have spoken in your defense many times, at this point to my detriment. I do believe that your answers are honest and factual.

Based on your answers regarding plus Mrs. Clinton's use of e-mail and based on what we know, it seems to me that she is stunningly incompetent in understanding of basic technology of e-mail and stunningly incompetent in handling classified information. I mean, you should never associate the Secretary of State and classified information with the word careless. It doesn't matter.

I mean, we have to exercise the utmost due diligence. All of us in this Committee do in handling this. You do in prosecuting cases and I see that in what you are trying to do. I just think we need to leave here with this understanding that there is more to this story than we know.

If a foreign hacker got into this I can assure you that they know what was in those e-mails that were deleted. They read them all. They know what is in the e-mails that we never received.

Mr. Chairman, I yield back.

CHAFFETZ: I thank the gentleman. We will now go to the gentleman from Wisconsin, Mr. Grothman for five minutes.

GROTHMAN: Thank you. Thanks for coming on over to the Rayburn building.

As I understand it your testimony today, is that you have not brought criminal charges against Hillary Clinton in part because you feel you can't prove guilt beyond a reasonable doubt, and in part because she didn't understand the laws with regard to e-mails, and servers, and that sort of thing.

[14:00:16] Question for you: When she erased these e-mails -- you, however, did say that if somebody did this under you there would be consequences.