Two South Carolina congressmen, US Reps. Trey Gowdy and Mick Mulvaney, were among the House members who questioned FBI Director James Comey Thursday on his agency’s investigation of former Secretary of State Hillary Clinton.
Comey testified before the House Oversight and Reform Committee for more than three hours as Republicans interrogated the FBI director over his agency’s investigation into Clinton’s use of a private email server to handle potentially sensitive emails. Comey reiterated his position that Clinton’s use of the server in her home and on personal cell phone showed “great carelessness,” but there was no evidence the then-Secretary intended to circumvent the law.
AUDIO: Gowdy exchange with FBI director (6:04)
Gowdy questioned the FBI’s findings that Clinton did not demonstrate “intent” to violate federal law. “You and I both know intent is really difficult to prove,” he told Comey. “Very rarely do defendants announce, ‘On this date I intend to break this criminal code section.’… It never happens that way.”
The FBI director said there were questions if Clinton was “technically sophisticated” enough to realize some of the markings that other State Department employees had used to signify classified content. However, under questioning from Democratic committee members, he also confirmed that only 3 of the more than 30,000 emails his investigators reviewed actually contained that marking. Others were later upgraded to classified after the emails were sent.
Democrats called the hearing political theater, noting the unusual nature of a committee questioning law enforcement personnel just days after their decision.
But Gowdy suggested a “double standard” was in play. “My real fear is this: this double-tracked justice system that is rightly or wrongly perceived in this country. That if you are a private in the Army and you email yourself classified information, you will be kicked out,” he said. “But if you are Hillary Clinton and you seek a promotion to Commander-in-Chief, you will not be.”
Comey disputed Gowdy and other Republicans’ positions that lower-level employees would have been prosecuted. He said the “grossly negligent” language cited by Republicans for potential criminal misuse of classified documents had only ever been used once since the language went into effect in 1917. The FBI agent charged under that language in 2003 ended up pleading guilty to a separate charge of lying to investigators.
“Why is it that the Department of Justice since 1917 has not used that negligence statute except once in an espionage case?” he told Gowdy. “That is the record of fairness. So you have to decide do I treat this person against that record? And… is that a fair thing to do?… And my judgment is no reasonable prosecutor would do that. That would be celebrity hunting.”
Thursday’s hearing was the first time Gowdy had commented on the FBI’s decision. Previously, his spokeswoman had deflected reporters’ questions, saying it was outside Gowdy’s role chairing a separate committee that questioned Clinton on her actions before and after the 2012 Benghazi attacks.
Mulvaney questioned if the FBI’s decision sets a future precedent for mishandling classified documents. “If (Sec. Clinton) does the exact same thing as President as she’s done today, your result would be the exact same as it was 48 hours ago, right?” he asked Comey.
“If the facts were exactly the same? And the law was the same? Yeah, the result would be the same,” the FBI chief responded.
“If a White House staffer does the exact same thing, for the exact same purpose, and exposes the exact same risks, there will be no criminal actions against that person,” Mulvaney pressed. “I suppose a summer intern could do the exact same thing… My question to you is this:… From a national security standpoint, does that bother you?”
“The precedent that I’m setting today is my absolute best effort to treat people fairly, without regard to who they are,” Comey answered. “If that continues to be the record of the FBI and the Justice Department, that’s what it should be. The rest of the implications in your question are beyond that.”