There doesn't seem to be a flash transcript of today's hearing in its entirety, but CNBC does have a transcript of the exchange between FBI Director James Comey and South Carolina Representative Trey Gowdy, both former prosecutors. I will paste it after the break.
This transcript comes from the instant closed-captioning of the hearing and may contain errors:
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Gowdy: Good morning, Director Comey. Secretary Clinton said she never sent or received any classified information over her private e-mail, was that true?
Comey: Our investigation found that there was classified information sent.
Gowdy: It was not true?
Comey: That's what I said.
Gowdy: OK. Well, I'm looking for a shorter answer so you and I are not here quite as long. Secretary Clinton said there was nothing marked classified on her e-mails sent or received. Was that true?
Comey: That's not true. There were a small number of portion markings on I think three of the documents.
Gowdy: Secretary Clinton said "I did not e-mail any classified information to anyone on my e-mail there was no classified material." That is true?
Comey: There was classified information emailed.
Gowdy: Secretary Clinton used one device, was that true?
Comey: She used multiple devices during the four years of her term as Secretary of State.
Gowdy: Secretary Clinton said all work related emails were returned to the State Department. Was that true?
Comey: No. We found work related email, thousands, that were not returned.
Gowdy: Secretary Clinton said neither she or anyone else deleted work related emails from her personal account.
Comey: That's a harder one to answer. We found traces of work related emails in -- on devices or in space. Whether they were deleted or when a server was changed out something happened to them, there's no doubt that the work related emails that were removed electronically from the email system.
Gowdy: Secretary Clinton said her lawyers read every one of the emails and were overly inclusive. Did her lawyers read the email content individually?
Comey: No.
Gowdy: Well, in the interest of time and because I have a plane to catch tomorrow afternoon, I'm not going to go through any more of the false statements but I am going to ask you to put on your old hat. Faults exculpatory statements are used for what?
Comey: Well, either for a substantive prosecution or evidence of intent in a criminal prosecution.
Gowdy: Exactly. Intent and consciousness of guilt, right?
Comey: That is right?
Gowdy: Consciousness of guilt and intent? In your old job you would prove intent as you referenced by showing the jury evidence of a complex scheme that was designed for the very purpose of concealing the public record and you would be arguing in addition to concealment the destruction that you and i just talked about or certainly the failure to preserve.
You would argue all of that under the heading of content. You would also -- intent. You would also be arguing the pervasiveness of the scheme when it started, when it ended and the number of emails whether
They were originally classified or of classified under the heading of intent. You would also, probably, under common scheme or plan, argue the burn bags of daily calendar entries or the missing daily calendar entries as a common scheme or plan to conceal.
Two days ago, Director, you said a reasonable person in her position should have known a private email was no place to send and receive classified information. You're right. An average person does know not to do that.
This is no average person. This is a former First Lady, a former United States senator, and a former Secretary of State that the president now contends is the most competent, qualified person to be president since Jefferson. He didn't say that in '08 but says it now.
She affirmatively rejected efforts to give her a state.gov account, kept the private emails for almost two years and only turned them over to Congress because we found out she had a private email account.
So you have a rogue email system set up before she took the oath of office, thousands of what we now know to be classified emails, some of which were classified at the time. One of her more frequent email comrades was hacked and you don't know whether or not she was.
And this scheme took place over a long period of time and resulted in the destruction of public records and yet you say there is insufficient evidence of intent. You say she was extremely careless, but not intentionally so.
You and I both know intent is really difficult to prove. Very rarely do defendants announce 'On this date I intend to break this criminal code section. Just to put everyone on notice, I am going to break the law on this date.'
It never happens that way. You have to do it with circumstantial evidence or if you're Congress and you realize how difficult it is prove, specific intent, you will form lathe a statute that allows for gross negligence.
My time is out but this is really important. You mentioned there's no precedent for criminal prosecution. My fear is there still isn't. There's nothing to keep a future Secretary of State or President from this exact same email scheme or their staff.
And my real fear is this, what the chairman touched upon, this double track justice system that is rightly or wrongly perceived in this country. That if you are a private in the Army and email yourself classified information you will be kicked out. But if you are Hillary Clinton, and you seek a promotion to Commander in Chief, you will not be. So what I hope you can do today is help the average person, the reasonable person you made reference to, the reasonable person understand why she appears to be treated differently than the rest of us would be. With that I would yield back.
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Gowdy: Good morning, Director Comey. Secretary Clinton said she never sent or received any classified information over her private e-mail, was that true?
Comey: Our investigation found that there was classified information sent.
Gowdy: It was not true?
Comey: That's what I said.
Gowdy: OK. Well, I'm looking for a shorter answer so you and I are not here quite as long. Secretary Clinton said there was nothing marked classified on her e-mails sent or received. Was that true?
Comey: That's not true. There were a small number of portion markings on I think three of the documents.
Gowdy: Secretary Clinton said "I did not e-mail any classified information to anyone on my e-mail there was no classified material." That is true?
Comey: There was classified information emailed.
Gowdy: Secretary Clinton used one device, was that true?
Comey: She used multiple devices during the four years of her term as Secretary of State.
Gowdy: Secretary Clinton said all work related emails were returned to the State Department. Was that true?
Comey: No. We found work related email, thousands, that were not returned.
Gowdy: Secretary Clinton said neither she or anyone else deleted work related emails from her personal account.
Comey: That's a harder one to answer. We found traces of work related emails in -- on devices or in space. Whether they were deleted or when a server was changed out something happened to them, there's no doubt that the work related emails that were removed electronically from the email system.
Gowdy: Secretary Clinton said her lawyers read every one of the emails and were overly inclusive. Did her lawyers read the email content individually?
Comey: No.
Gowdy: Well, in the interest of time and because I have a plane to catch tomorrow afternoon, I'm not going to go through any more of the false statements but I am going to ask you to put on your old hat. Faults exculpatory statements are used for what?
Comey: Well, either for a substantive prosecution or evidence of intent in a criminal prosecution.
Gowdy: Exactly. Intent and consciousness of guilt, right?
Comey: That is right?
Gowdy: Consciousness of guilt and intent? In your old job you would prove intent as you referenced by showing the jury evidence of a complex scheme that was designed for the very purpose of concealing the public record and you would be arguing in addition to concealment the destruction that you and i just talked about or certainly the failure to preserve.
You would argue all of that under the heading of content. You would also -- intent. You would also be arguing the pervasiveness of the scheme when it started, when it ended and the number of emails whether
They were originally classified or of classified under the heading of intent. You would also, probably, under common scheme or plan, argue the burn bags of daily calendar entries or the missing daily calendar entries as a common scheme or plan to conceal.
Two days ago, Director, you said a reasonable person in her position should have known a private email was no place to send and receive classified information. You're right. An average person does know not to do that.
This is no average person. This is a former First Lady, a former United States senator, and a former Secretary of State that the president now contends is the most competent, qualified person to be president since Jefferson. He didn't say that in '08 but says it now.
She affirmatively rejected efforts to give her a state.gov account, kept the private emails for almost two years and only turned them over to Congress because we found out she had a private email account.
So you have a rogue email system set up before she took the oath of office, thousands of what we now know to be classified emails, some of which were classified at the time. One of her more frequent email comrades was hacked and you don't know whether or not she was.
And this scheme took place over a long period of time and resulted in the destruction of public records and yet you say there is insufficient evidence of intent. You say she was extremely careless, but not intentionally so.
You and I both know intent is really difficult to prove. Very rarely do defendants announce 'On this date I intend to break this criminal code section. Just to put everyone on notice, I am going to break the law on this date.'
It never happens that way. You have to do it with circumstantial evidence or if you're Congress and you realize how difficult it is prove, specific intent, you will form lathe a statute that allows for gross negligence.
My time is out but this is really important. You mentioned there's no precedent for criminal prosecution. My fear is there still isn't. There's nothing to keep a future Secretary of State or President from this exact same email scheme or their staff.
And my real fear is this, what the chairman touched upon, this double track justice system that is rightly or wrongly perceived in this country. That if you are a private in the Army and email yourself classified information you will be kicked out. But if you are Hillary Clinton, and you seek a promotion to Commander in Chief, you will not be. So what I hope you can do today is help the average person, the reasonable person you made reference to, the reasonable person understand why she appears to be treated differently than the rest of us would be. With that I would yield back.
Either Comey (1) was lying when he testified that his decision was in no way influenced by HRC's status or (2) he was telling the truth (i.e., his decision would have been the same if the alleged wrongdoer was a private in the Army)?
So what evidence supports (1) or (2)?
And if (1), from a person of Comey's stature and stellar reputation, then what? Where does this country go from there? To Trump and his screaming about a "rigged system"?
This is one big mess. And there is no easy way out.
"Either Comey (1) was lying when he testified that his decision was in no way influenced by HRC's status or (2) he was telling the truth (i.e., his decision would have been the same if the alleged wrongdoer was a private in the Army)?"
Nope.
He could be looking at 793(f) for the first time and have thought, in good faith but erroneously, that it is defective.
Bright, honest people make big mistakes all the time.
Comey is a bright, honest, man. And if he made a big mistake, his mistake can be corrected on November 8. And, in the end, that's what I think motivated him. (See Krauthammer's "Comey:A Theory" just posted on the WaPo.)
The reason Clinton must be rejected on November 8 has nothing to do with Comey and everything to do with Clinton.
P.S. I would be interested in any authority, judicial, administrative or otherwise, you might care to produce that Section 793(f) is unconstitutional.
I don't believe it is unconstitutional. And I respectfully disagree with Comey's contrary suggestion.
I agree that it should be a felony to handle confidential, national security sensitive, documents (including email) in a grossly negligent manner.
But there is also no authority that directly contradicts Comey's opinion that 793(f) is unconstitutional to the extent it permits criminal liability based solely on gross negligence. There is no case law to my knowledge specifically addressing that issue.
There is language in Gorin v. United States (1941) 312 U.S. 19, 27-29, that supports Comey's conclusion that HRC had to have acted with "bad faith" in order to be guilty of violating 793(f).
The "through gross negligence permits" language of 793(f) is analytically similar to the "reason to believe" standard addresed in Gorin.
Not on point. But somewhat persuasive support for Comey's opinion.
Bill, I'm interested in your thoughts on the following hypothetical situation. What if Clinton didn't use a private server, and instead used the official state department unclassified e-mail system?
Wouldn't that have been just as illegal? Isn't the problem of mishandling of classifying information related to the presence of such information on any unclassified system? Why is the "private server" aspect legally relevant, on the question of whether classified information was mishandled in the first place (before we even get to intent/gross negligence/etc)?
If it is correct that the letter of the law would equally apply to a hypothetical secretary of state using the official state department e-mail system (who likewise was a participant but non-originator of 52 e-mail chains where a classified subject matter was discussed), then isn't the "special treatment" the fact that Clinton was investigated in the first place (rather than the fact that she was not indicted)?
After all, I would have to guess that such a fact pattern would apply to a large number of high level state department officials and government officials more generally, in this administration and prior administrations. It would certainly apply to everyone else on all of Clinton's 52 e-mail chains, most of which are not only not indicted but not even being investigated.
I was never much impressed with the "but Johnny does it!" defense when I was an AUSA, and I'm no more impressed with it now.
I have no great desire to see Hillary in jail, any more than I had a desire to see Patraeus or Sandy Berger or Scooter Libby in jail. The more important question is whether routine carelessness with top secret material, and flagrant, belligerent, serial lying about it, qualify a person for a promotion from cabinet secretary to President.
If you have an answer other than "NO," I'd like to hear your rationale.
First, one more point on the legal questions. It would seem to me that potential similarity between what Clinton does and what many others do in similar positions would be directly relevant to whether Clinton is receiving "special treatment." The word "special" is a relative term. This is not just a question of getting "caught." Comey was asked (by a Republican Congressman) whether there were similar investigations of everyone on all the 52 relevant e-mail chains. Comey said that most people on the chains were not investigated (only Hillary and her top aides). This is despite Comey acknowledging that those e-mails had no business being on any unclassified system).
It seems that Comey was not attempting to answer the question of whether any conceivable prosecution could have been brought. Instead, he was trying to ensure that the recommendations of the FBI (and the ultimate decision on whether to exercise the discretion to decline to prosecute) were consistent with what they would be in similarly situated cases. That is why analysis of the form "but look at the words of the statute!" (by you on this site, and on other sites) misses the forest through the trees, in my view. (I acknowledge that Comey probably stepped over the typical FBI/justice department line in his prognostications about "reasonable prosecutors," but I don't think that affects the final outcome.)
As for the political implications, I agree that the standards for officials aspiring to higher office are (and should be) higher than "avoiding indictment." So the actions of others in similar positions are less important. But I do still think they are relevant in this case.
It has become clear that the intelligence community and state departments have very different views on what is/isn't appropriate handling of classified information. Comey made a strong case that Clinton was "extremely careless" in handling classified information. My main question is, how much of that exact same case could have been made about high level officials in similar positions, in current and past administrations?
If this behavior was unique (or mostly unique) to Clinton, that would indeed be troubling. On the other hand, if it was not remotely unique to Clinton, then Comey's statement is more of an indictment of the state department longstanding culture of handling such information (that happens to focus on Hillary because Hillary happens to be the one being investigated). Again, we are talking almost entirely about participating in a tiny number (percentage-wise) of unmarked e-mail chains that broadly discussed subject matters that were classified. I would be somewhat surprised if there weren't similar e-mails in the mailboxes of most (or all) high level officials that make heavy use of e-mail (among jobs that involve topics that are classified). Absolute perfection in reviewing all e-mail chains for possible unmarked classified topics (over tens of thousands of e-mails) is hard for anyone to achieve, which is why I assume investigations more typically focus on the removal of actual classified documents or written materials from their classified setting (versus merely particpating on e-mail chains discussing classified topics). At the very least, it is very difficult to know what to make of this, without more context into Hillary's participation in these threads (versus others in similar situations).
You could argue that the security implications of using a private server (versus the state department's official unclassified e-mail systems) should have political relevance, even if it did not have legal relevance. My guess is that this aspect is the main differentiator between Hillary's conduct and the conduct of other high level officials (and probably the only reason this was ever investigated or covered by the media). Comey accurately states that private servers can be unsecure, and can potentially be hacked. But it is very unclear to me whether the official unclassified e-mail system was more or less secure. As we found out from the OPM breach and others, computer security for unclassified systems (with much more sensitive information) is often appallingly bad (and is often known to be appallingly bad prior to any breach). It wouldn't surprise me if Clinton's system were hacked by a foreign power, nor would it surprise me if the unclassified state department system was hacked regularly. Perhaps this is why the law doesn't appear to differentiate between private and public unclassified systems.
So ultimately, it is not even clear that Clinton's decision actually put America at greater risk than a decision to use the official unclassified e-mail system (which is not to say it did not increase risk relative to an imaginary world with perfect security). As for her statements on the matter, the two ones I would rate as "false" were her original statement that omitted the word "marked" when claiming that there were no classified e-mails, and the statement about not wanting to use two devices. I also am not at all convinced that she knew the first statement was false when she made it, though I would guess she knew the second statement was false when she made it. Ultimately, if you are looking at which of two major candidates are the bigger liar, I don't think this remotely compares to Trump (where much of what he says is obviously false and knowingly false). And that's before we look at Trump's statements about his future actions, many of which come close to mocking the rule of law as a concept (to whatever extent it could constrain his actions). So no, I don't consider Clinton's actions disqualifying, or even in the same ballpark as the actions (and proposed actions) of the alternative.