[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]
OVERSIGHT OF THE STATE DEPARTMENT
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON OVERSIGHT
AND GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTEENTH CONGRESS
SECOND SESSION
__________
JULY 7, 2016
__________
Serial No. 114-67
__________
Printed for the use of the Committee on Oversight and Government Reform
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COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM
JASON CHAFFETZ, Utah, Chairman
JOHN L. MICA, Florida ELIJAH E. CUMMINGS, Maryland,
MICHAEL R. TURNER, Ohio Ranking Minority Member
JOHN J. DUNCAN, Jr., Tennessee CAROLYN B. MALONEY, New York
JIM JORDAN, Ohio ELEANOR HOLMES NORTON, District of
TIM WALBERG, Michigan Columbia
JUSTIN AMASH, Michigan WM. LACY CLAY, Missouri
PAUL A. GOSAR, Arizona STEPHEN F. LYNCH, Massachusetts
SCOTT DesJARLAIS, Tennessee JIM COOPER, Tennessee
TREY GOWDY, South Carolina GERALD E. CONNOLLY, Virginia
BLAKE FARENTHOLD, Texas MATT CARTWRIGHT, Pennsylvania
CYNTHIA M. LUMMIS, Wyoming TAMMY DUCKWORTH, Illinois
THOMAS MASSIE, Kentucky ROBIN L. KELLY, Illinois
MARK MEADOWS, North Carolina BRENDA L. LAWRENCE, Michigan
RON DeSANTIS, Florida TED LIEU, California
MICK MULVANEY, South Carolina BONNIE WATSON COLEMAN, New Jersey
KEN BUCK, Colorado STACEY E. PLASKETT, Virgin Islands
MARK WALKER, North Carolina MARK DeSAULNIER, California
ROD BLUM, Iowa BRENDAN F. BOYLE, Pennsylvania
JODY B. HICE, Georgia PETER WELCH, Vermont
STEVE RUSSELL, Oklahoma MICHELLE LUJAN GRISHAM, New Mexico
EARL L. ``BUDDY'' CARTER, Georgia
GLENN GROTHMAN, Wisconsin
WILL HURD, Texas
GARY J. PALMER, Alabama
Jennifer Hemingway, Staff Director
David Rapallo, Minority Staff Director
Tristan Leavitt, Senior Counsel
William Marx, Clerk
C O N T E N T S
----------
Page
Hearing held on July 7, 2016..................................... 1
WITNESSES
The Hon. James Comey, Director, Federal Bureau of Investigation
Oral Statement............................................... 5
Mr. Steve Linick, Inspector General, Department of State,
Accompanied by Ms. Jennifer Costello, Assistant Inspector
General for Evaluations and Special Projects, Department of
State
Oral Statement............................................... 92
Mr. I. Charles McCullough, III, Inspector General for the
Intelligence Community, Office of the Director of National
Intelligence
Oral Statement............................................... 92
APPENDIX
Sensitive Compartmented Information Nondisclosure Agreement,
signed by Secretary of State Hillary Rodham Clinton, submitted
by Rep. Chaffetz............................................... 122
Classified Information Nondisclosure Agreement, signed by
Secretary of State Hillary Rodham Clinton, submitted by Rep.
Chaffetz....................................................... 124
A July 6, 2016 letter to the House Oversight and Government
Reform Committee from Richard W. Painter, S. Walter Richey,
Professor of Corporate Law at the University of Minnesota Law
School, submitted by Rep. Lawrence............................. 126
Two reports from the Office of Inspector General at the State
Department, submitted by Rep. Chaffetz......................... 128
a. ``Evaluation of the Department of State's FOIA Process
for Requests Involving the Office of the Secretary'' January
2016......................................................... 129
b. ``Office of the Secretary: Evaluation of Email Records
Management and Cybersecurity Requirements'' May 2016......... 157
Series of memoranda from both the Department of State Inspector
General and the ODNI Inspector General, submitted by Rep.
Chaffetz....................................................... 240
Opening Statement submitted by Rep. Elijah E. Cummings........... 255
OVERSIGHT OF THE STATE DEPARTMENT
----------
Thursday, July 7, 2016
House of Representatives,
Committee on Oversight and Government Reform,
Washington, D.C.
The committee met, pursuant to call, at 10:04 a.m., in Room
2154, Rayburn House Office Building, Hon. Jason Chaffetz
[chairman of the committee] presiding.
Present: Representatives Chaffetz, Mica, Duncan, Jordan,
Walberg, Amash, Gosar, DesJarlais, Gowdy, Farenthold, Lummis,
Massie, Meadows, DeSantis, Mulvaney, Buck, Walker, Blum, Hice,
Russell, Carter, Grothman, Hurd, Palmer, Cummings, Maloney,
Norton, Clay, Lynch, Cooper, Connolly, Cartwright, Duckworth,
Kelly, Lawrence, Lieu, Watson Coleman, Plaskett, DeSaulnier,
Boyle, Welch, and Lujan Grisham.
Chairman Chaffetz. The Committee on Oversight and
Government Reform will come to order.
Without objection, the chair is authorized to declare a
recess at any time.
I want to thank Director Comey for being here and doing so
on short notice. I have the greatest admiration for the FBI. My
grandfather was a career FBI agent.
I have got to tell you, I am here because we are mystified
and confused by the fact pattern that you laid out and the
conclusions that you reached. It seems that there are two
standards, and there is no consequence for these types of
activities and dealing in a careless way with classified
information. It seems to a lot of us that the average Joe, the
average American, that if they had done what you laid out in
your statement, that they'd be in handcuffs and they might be
on their way to jail, and they probably should, and I think
there is a legitimate concern that there is a double standard.
If your name isn't Clinton or you're not part of the powerful
elite, that Lady Justice will act differently. It is a concern
that Lady Justice will take off that blindfold and come to a
different conclusion.
Hillary Clinton created this mess. It wasn't Republicans.
It wasn't anybody else. She made a very conscious decision. On
the very day that she started her Senate confirmation, she set
up and got a domain name and set up a system to avoid and
bypass the safety, security, and the protocol of the State
Department.
Classified information is classified for a reason. It is
classified because if it were to get out into the public, there
are nefarious actors, nation-states, others that want to do
harm to this country, and there are people who put their lives
on the line protecting and serving our country, and when those
communications are not secure, it puts their lives at jeopardy.
This classified information is entrusted to very few, but there
is such a duty and an obligation to protect that, to fall on
your sword to protect that, and yet there doesn't seem to be
any consequence.
You know, I was talking to Trey Gowdy, and he made a really
good point with us yesterday. Mr. Gowdy said, you know, in your
statement, Mr. Director, you mentioned that there was no
precedent for this, but we believe that you have set a
precedent, and it's a dangerous one. The precedent is if you
sloppily deal with classified information, if you are cavalier
about it--and it wasn't just an innocent mistake; this went on
for years--that there is going to be no consequence.
We are a different nation in the United States of America.
We are self-critical. Most nations would never do this, but we
do it in the spirit of making ourselves better. There will be
all kinds of accusations about political this and political
that. I have defended your integrity every step of the way. You
are the definitive voice. I stand by that, but I am mystified,
and I am confused, because you listen to your fact pattern and
come to the conclusion that there is no consequence, I don't
know how to explain that. We will have constituents ask us.
They'll get mad. They will pound the--you know, they're
frustrated. They have seen this happen time and time again. I
don't know how to explain it, and I hope that, through this
hearing, we can stick to the facts and understand this, because
there does seem to be two standards. There does seem to be no
consequence, and I want to understand that, and I want to be
able to explain that to the person that's sitting at home, and
that is why we are here.
And so I yield back.
I now recognize the ranking member, Mr. Cummings.
Mr. Cummings. Director Comey, thank you for being here
today. I want to begin by commending you and the public
servants at the FBI for the independent investigation you
conducted. You had a thankless task. No matter what
recommendation you made, you were sure to be criticized. There
is no question that you were extremely thorough. In fact, some
may even say you went too far in your investigation. But, of
course, that was your job; that is your job.
Secretary Clinton has acknowledged that she made a mistake
in using a personal email account, and you explained on Tuesday
that she and her colleagues at the State Department were
extremely careless with their emails, but after conducting this
exhaustive review, you determined that no reasonable prosecutor
would bring a case based on this evidence, and you and the
career staff recommended against prosecution. Based on the
previous cases you examined, if prosecutors had gone forward,
they would have been holding the Secretary to a different
standard from everyone else.
Amazingly--amazingly--some Republicans who were praising
you just days ago for your independence, for your integrity,
and your honesty instantly turned against you because your
recommendation conflicted with the predetermined outcome they
wanted. In their eyes, you had one job and one job only: to
prosecute Hillary Clinton.
But you refused to do so, so now you are being summoned
here to answer for your alleged transgressions, and in a sense,
Mr. Director, you are on trial.
Contrary to the claims of your critics, there is absolutely
no evidence that you made your recommendation for political
reasons, no evidence that you were bribed or coerced or
influenced, no evidence that you came to your conclusion based
upon anything but the facts and the law. I firmly believe that
your decision was not based on convenience but on conviction.
Today, House Republicans are doing what they always do,
using taxpayers' money to continue investigating claims that
have already been debunked just to keep them in the headlines
one more day. When they hear a political siren, they rush
toward it over and over again, even if the evidence is not
there. Exhibit A, Majority Leader Kevin McCarthy, who admitted
on national television that Republicans established the
Benghazi Select Committee to bring down Secretary Clinton's
poll numbers. I didn't say that; McCarthy said it. The fact was
confirmed by a Republican staffer on that committee who
reported that he was fired in part for not going along with the
hyper focus on Secretary Clinton.
I give House Republicans credit. They certainly are not shy
about what they are doing. They have turned political
investigations into an art form.
If our concerns here today are with the proper treatment of
classified information, then we should start with the review of
our previous hearing on General David Petraeus, who pled guilty
last year to intentionally and knowingly compromising highly
classified information. The problem is, Mr. Director, we never
had that hearing. This committee ignored that breach of
national security because it did not match the political goals
of the House Republicans.
If our concerns today were with finally addressing a broken
classification system in which security levels are arbitrarily
changed up and down, that would have been a legitimate goal,
that would have been a valuable addition to reforming and
improving our government. After all, we are the Government
Reform Committee.
We could have held hearings here on Zika, the Zika virus,
preventing gun massacres like the one in Orlando, or a host of
other topics that could actually save people's lives, but that
is not why we are here. That is not why our chairman called
this emergency hearing 48 hours after you made your
recommendation.
Everyone knows what this committee is doing. Honestly, I
would not be surprised--and I say this with all seriousness--I
would not be surprised if, tomorrow, Republicans set up a new
committee to spend $7 million plus on why the FBI failed to
prosecute Hillary Clinton.
Director Comey, let me conclude with this request. Even
with all that I have said, I believe that there is a critical
role for you today. I have listened carefully to the coverage
on this issue, and I have heard people say as recently as this
morning, 3 hours ago, that they were mystified by your
decision. As a matter of fact, the chairman repeated it a
minute ago. And so there is a perceived gap between the things
you said on Tuesday and your recommendation. There is a gap,
Mr. Director. So, in this moment--and this is a critical
moment--I beg you to fill the gap, because when the gap is not
filled by you, it will be filled by others. Share with us, the
American people, your process and your thinking; explain how
you examined the evidence, the law, and the precedents;
describe in clear terms how you and your team, career
professionals, arrived at this decision. If you can do that
today, if you can do that, that could go a long way toward
people understanding your decision.
Finally, I want to make it clear that I condemn these
completely unwarranted political attacks against you. They have
attacked you personally. They have attacked your integrity.
They have impugned your professionalism. And they have even
suggested that you were somehow bought and paid for because you
made your recommendation based upon the law and the facts.
I know you are used to working in the world of politics,
but these attacks have been beyond the pale. So you do not
deserve this. Your family does not deserve it. And the highly
skilled and dedicated agents of the FBI do not deserve it.
I honor your professionalism and your service to our
country. And, again, even if it takes till hell freezes over, I
beg you to close the gap, tell us what happened between what
you found and your decision so that not only the members of
this panel and this Congress will understand but so that
Americans will understand. And if you do that, if you do that,
then it will be all worth it today.
With that, I yield back.
Mr. Mica. Mr. Chairman----
Chairman Chaffetz. I think--hold on one second, with your
indulgence.
To the ranking member, of which I have the greatest
respect, you asked for a hearing on General Petraeus and how
that was dealt with; you got it. We will have one in this
Oversight Committee. And the record will reflect that, in the
Judiciary Committee, I repeatedly questioned Attorney General
Holder, I repeatedly questioned the FBI Director about the
disposition of that case, probably more than any Member in the
House or Senate. And if you want a hearing, we will do that.
Mr. Cummings. Will the gentlemen yield?
Chairman Chaffetz. Yes.
Mr. Cummings. Thank you.
Chairman Chaffetz. Number two, you complained that we
haven't done a hearing on Zika. The Oversight and Government
Reform Committee, I believe, was the very first committee to
actually do a hearing on Zika. That was chaired by Mr. Mica,
and I am proud of the fact that we did a Zika hearing, and we
did it first.
Mr. Cummings. Will the gentleman yield?
Chairman Chaffetz. Sure.
Mr. Cummings. Can we have another one, because the problem
is still there----
Chairman Chaffetz. Absolutely.
Mr. Cummings. --big time.
Chairman Chaffetz. Absolutely.
Mr. Mica. Mr. Chairman, I would ask for a unanimous consent
request that we put the date of the hearing in the record at
this time that I chaired--thank you--on Zika.
Chairman Chaffetz. Absolutely.
[The information follows:]
The Subcommittee on Transportation and Public Assets held a
hearing on February 24, 2016, titled, ``The Zika Virus:
Coordination of a Multi- Agency Response.''
Chairman Chaffetz. And the ranking member knows that we
have held multiple hearings on the criminal justice and
criminal justice reform. You asked for it. You are passionate
about it. And we did do that as well. So to suggest we haven't
addressed some of those issues, I think, is inaccurate.
Mr. Cummings. I don't think I did that, Mr. Chairman, but,
again, as late as yesterday, with the problem in Minnesota with
an African American man being killed, I would like to have some
hearings still on the criminal justice system. Thank you.
Chairman Chaffetz. Thank you.
Mr. Cummings. Thank you very much.
Chairman Chaffetz. Without objection. I am going to work
with you on that----
Mr. Cummings. Thank you.
Chairman Chaffetz. --as I have every step of the way.
Mr. Cummings. Thank you, Mr. Chairman. I appreciate it.
Chairman Chaffetz. Without objection, the chair is
authorized to declare a recess at any time. We will hold the
record open for 5 legislative days for any members who would
like to submit a written statement.
We will now recognize our distinguished witness for our
first panel. I am pleased to welcome the Honorable James Comey,
the Director of the Federal Bureau of Investigations.
We welcome Director Comey, and thank you for being here.
Pursuant to committee rules, all witnesses are to be sworn
before they testify. If you will please rise and raise and
right hand.
Do you solemnly swear or affirm that the testimony you are
about to give is the truth, the whole truth, and nothing but
the truth.
Mr. Comey. I do.
Chairman Chaffetz. Thank you.
Let the record reflect that the witness answered in the
affirmative.
Mr. Comey, the floor is yours. You can take as long or as
short as you would like. If you have any written statement that
you would like to submit afterwards, we are happy to do that as
well, and it will be made part of the record. The time is now
yours.
Director Comey, you are recognized.
STATEMENT OF THE HONORABLE JAMES COMEY
Mr. Comey. Thank you, Mr. Chairman, Mr. Cummings, members
of the committee. I am proud to be here today representing the
people of the FBI, who did this investigation, as they do all
their work, in a competent, honest, and independent way. I
believe this investigation was conducted consistent with the
highest traditions of the FBI. Our folks did it in an
apolitical and professional way, including our recommendation
as to the appropriate resolution of this case.
As I said in my statement on Tuesday, I expected there
would be significant public debate about this recommendation,
and I am a big fan of transparency, so I welcome the
conversation we are going to have here today. And I do think a
whole lot of folks have questions about, so why did we reach
the conclusion we did, and what was our thinking? And I hope
very much to get an opportunity to address that and to explain
it. And I hope, at the end of day, people can disagree, can
agree, but they will at least understand that the decision was
made and the recommendation was made the way you would want it
to be: by people who didn't give a hoot about politics but who
cared about, what are the facts, what is the law, and how have
similar people, all people, been treated in the past?
Maybe I could just say a few words at the beginning that
would help frame how we think about this. There are two things
that matter in a criminal investigation of a subject: What did
the person do? And when they did that thing, what were they
thinking?
When you look at the hundred years plus of the Justice
Department's investigation and prosecution of the mishandling
of classified information, those two questions are obviously
present: What did the person do? Did they mishandle classified
information? And when they did it, did they know they were
doing something that was unlawful? That has been the
characteristic of every charged criminal case involving the
mishandling of classified information. I am happy to go through
the cases in particular.
In our system of law, there's a thing called mens rea. It's
important to know what you did, but when you did it, this Latin
phrase ``mens rea'' means, what were you thinking? And we don't
want to put people in jail unless we prove that they knew they
were doing something they shouldn't do. That is the
characteristic of all the prosecutions involving mishandling of
classified information.
There is a statute that was passed in 1917 that, on its
face, makes it a crime, a felony, for someone to engage in
gross negligence. So that would appear to say: Well, maybe in
that circumstance, you don't need to prove they knew they were
doing something that was unlawful; maybe it's enough to prove
that they were just really, really careless, beyond a
reasonable doubt.
At the time Congress passed that statute in 1917, there was
a lot of concern in the House and the Senate about whether that
was going to violate the American tradition of requiring that,
before you're going to lock somebody up, you prove they knew
they were doing something wrong, and so there was a lot of
concern about it. The statute was passed. As best I can tell,
the Department of Justice has used it once in the 99 years
since, reflecting that same concern. I know, from 30 years with
the Department of Justice, they have grave concerns about
whether it's appropriate to prosecute somebody for gross
negligence, which is why they've done it once that I know of in
a case involving espionage.
And so when I look at the facts we gathered here, as I
said, I see evidence of great carelessness, but I do not see
evidence that is sufficient to establish that Secretary Clinton
or those with whom she was corresponding both talked about
classified information on email and knew, when they did it,
they were doing something that was against the law, right?
So, given that assessment of the facts and my understanding
of the law, my conclusion was and remains no reasonable
prosecutor would bring this case. No reasonable prosecutor
would bring the second case in a hundred years focused on gross
negligence. And so I know that's been a source of some
confusion for folks. That's just the way it is. I know the
Department of Justice. I know no reasonable prosecutor would
bring this case. I know a lot of my former friends are out
there saying they would. I wonder where they were the last 40
years, because I'd like to see the cases they brought on gross
negligence. Nobody would; nobody did.
So my judgment was the appropriate resolution of this case
was not with a criminal prosecution. As I said, folks can
disagree about that, but I hope they know that view, not just
my view but of my team, was honestly held, fairly investigated,
and communicated with unusual transparency, because we know
folks care about it.
So I look forward to this conversation. I look forward to
answering as many questions as I possibly can. I'll stay as
long as you need me to stay, because I believe transparency
matters tremendously. And I thank you for the opportunity.
Chairman Chaffetz. Thank you, Director. I'm going to
recognize myself here.
Physically, where were Hillary Clinton's servers?
Mr. Comey. The operational server was in the basement of
her home in New York. The reason I'm answering it that way is
because sometimes, after they were decommissioned, they were
moved to other facilities, storage facilities, but the live
device was always in the basement.
Chairman Chaffetz. Was that an authorized or unauthorized
location?
Mr. Comey. It was an unauthorized location for the
transmitting of classified information.
Chairman Chaffetz. Is it reasonable or unreasonable to
expect Hillary Clinton would receive and send classified
information?
Mr. Comey. As Secretary of State? Reasonable that the
Secretary of State would encounter classified information in
the course of the Secretary's work.
Chairman Chaffetz. Via email?
Mr. Comey. Sure, depending upon the nature of the system.
To communicate classified information, it would have to be a
classified-rated email system.
Chairman Chaffetz. But you did find more than 100 emails
that were classified that had gone through that server,
correct?
Mr. Comey. Right. Through an unclassified server, correct.
Chairman Chaffetz. Yes. So Hillary Clinton did come to
possess documents and materials containing classified
information via email on these unsecured servers, correct?
Mr. Comey. That is correct.
Chairman Chaffetz. Did Hillary Clinton lie?
Mr. Comey. To the FBI? We have no basis to conclude she
lied to the FBI.
Chairman Chaffetz. Did she lie to the public?
Mr. Comey. That's a question I'm not qualified to answer. I
can speak about what she said to the FBI.
Chairman Chaffetz. Did Hillary Clinton lie under oath?
Mr. Comey. To the--not to the FBI, not in the case we were
working.
Chairman Chaffetz. Did you review the documents where
Congressman Jim Jordan asked her specifically, and she said,
quote, ``There was nothing marked classified on my emails,
either sent or received,'' end quote?
Mr. Comey. I don't remember reviewing that particular
testimony. I'm aware of that being said, though.
Chairman Chaffetz. Did the FBI investigate her statements
under oath on this topic?
Mr. Comey. Not to my knowledge. I don't think there has
been a referral from Congress.
Chairman Chaffetz. Do you need a referral from Congress to
investigate her statements under oath?
Mr. Comey. Sure do.
Chairman Chaffetz. You'll have one. You'll have one in the
next few hours.
Did Hillary Clinton break the law?
Mr. Comey. In connection with her use of the email server,
my judgment is that she did not.
Chairman Chaffetz. Did you--you're just not able to
prosecute it, or did Hillary Clinton break the law?
Mr. Comey. Well, I don't want to give an overly lawyerly
answer, but the question I always look at is, is there evidence
that would establish beyond a reasonable doubt that somebody
engaged in conduct that violated a criminal statute? And my
judgment here is there is not.
Chairman Chaffetz. The FBI does background checks. If
Hillary Clinton applied for the job at the FBI, would the FBI
give Hillary Clinton a security clearance?
Mr. Comey. I don't want to answer a hypothetical. The FBI
has a robust process in which we adjudicate the suitability of
people for employment in the Bureau.
Chairman Chaffetz. Given the fact pattern you laid out less
than 48 hours ago, would a person who had dealt with classified
information like that, would that person be granted a security
clearance at the FBI?
Mr. Comey. It would be a very important consideration in
the suitability determination.
Chairman Chaffetz. You're kind of making my point,
Director. The point being, because I injected the word
``Hillary Clinton,'' you gave me a different answer, but if I
came up to you and said that this person was extremely careless
with classified information; the exposure to hostile actors;
had used--despite warnings--created unnecessary burdens and
exposure; if they said that they had one device and you found
out that they had multiple devices; if there had been email
chains with somebody like Jake Sullivan asking for
classification changes, you're telling me that the FBI would
grant a security clearance to that person?
Mr. Comey. I'm not--I hope I'm giving a consistent--I'm not
saying what the answer would be. I'm saying that would be an
important consideration in a suitability determination for
anybody.
Chairman Chaffetz. And just--personally, I just think that
sounds like a bit of a political answer, because I can't
imagine that the FBI would grant a security clearance to
somebody with that fact pattern. Do you agree or disagree with
that?
Mr. Comey. I'll say what I said before: again, it's very
hard to answer in a hypothetical. I'll repeat it. It would be a
very important consideration in a suitability determination.
Chairman Chaffetz. Did Hillary Clinton do anything wrong?
Mr. Comey. What do you mean by ``wrong''?
Chairman Chaffetz. I think it's self-evident.
Mr. Comey. Well, I'm a lawyer. I'm an investigator. And
I'm--I hope--a normal human being.
Chairman Chaffetz. Do you really believe there should be no
consequence for Hillary Clinton in how she dealt with this?
Mr. Comey. Well, I didn't say--I hope folks remember what I
said on Tuesday. I didn't say there's no consequence for
someone who violates the rules regarding the handling of
classified information. There are often very severe
consequences in the FBI involving their employment, involving
their pay, involving their clearances. That's what I said on
Tuesday. And I hope folks walk away understanding that, just
because someone's not prosecuted for mishandling classified
information, that doesn't mean, if you work in the FBI, there
aren't consequences for it.
Chairman Chaffetz. So if Hillary Clinton or if anybody had
worked at the FBI, under this fact pattern, what would you do
to that person?
Mr. Comey. There would be a security review and an
adjudication of their suitability, and a range of discipline
could be imposed from termination to reprimand and, in between,
suspensions, loss of clearance. So you could be walked out or
you could--depending upon the nature of the facts, you could be
reprimanded, but there is a robust process to handle that.
Chairman Chaffetz. I've gone past my time.
I yield back.
I now recognize the ranking member, Mr. Cummings.
Mr. Cummings. Thank you very much.
Director Comey--and I want to thank you very much for being
here today, especially on such short notice. You and your staff
should be commended for the thorough and dedicated review you
conducted. Unfortunately, some of my colleagues are now
attacking you personally because your final recommendation
conflicted with their preconceived political outcome in this
case.
Some have tried to argue that this case is far worse than
the case of General David Petraeus, who was convicted in 2015
of knowingly and intentionally compromising highly classified
information. In fact, one very vocal politician we all know
said this, and I quote: ``If she isn't indicted, the only
reason is because the Democrats are protecting her. She is
being protected 100 percent, because you look at David--General
Petraeus, you look at all the other people that did a fraction
of what she did, but she has much worse judgment than he had,
and she's getting away with it, and it's unfair to him,'' end
of quote.
Director Comey, you were the Director of the FBI when
General Petraeus pled guilty. Is that right?
Mr. Comey. Yes.
Mr. Cummings. If I understand that case correctly, General
Petraeus kept highly classified information in eight personal
notebooks at his private residence. Is that correct?
Mr. Comey. That is correct.
Mr. Cummings. According to the filings in that case, this
notebook included the identities of covert officers. They also
included war strategy, intelligence capabilities, diplomatic
discussions, quotes and deliberative discussions from high-
level National Security Council meetings and discussions with
the President. General Petraeus shared his information with his
lover and then biographer. He was caught on audiotape telling
her, and I quote, ``I mean, they are highly classified, some of
them. They don't have it on--on it, but, I mean, there's code
word stuff in there,'' end of quote.
Director Comey, what did General Petraeus mean when he said
he intentionally shared, quote, ``code word'' information with
her? What does that mean?
Mr. Comey. The Petraeus case, to my mind, illustrates
perfectly the kind of cases the Department of Justice is
willing to prosecute. Even there, they prosecuted him for a
misdemeanor. In that case, you had vast quantities of highly
classified information, including special--sensitive
compartmented information--that's the reference to code words--
a vast quantity of it, not only shared with someone without
authority to have it, but we found it in a search warrant
hidden under the insulation in his attic, and then he lied to
us about it during the investigation.
So you have obstruction of justice. You have intentional
misconduct and a vast quantity of information. He admitted he
knew that was the wrong thing to do. That is a perfect
illustration of the kind of cases that get prosecuted. In my
mind, it illustrates, importantly, the distinction to this
case.
Mr. Cummings. And General Petraeus did not admit to these
facts when the FBI investigators first interviewed him. Did he?
Mr. Comey. No. He lied about it.
Mr. Cummings. But he did admit to these facts in a plea
agreement. Is that correct?
Mr. Comey. Yes.
Mr. Cummings. Here's what the Department filing said about
General Petraeus, and I quote: ``The acts taken by defendant
David Howell Petraeus were in all respects knowing and
deliberate and were not committed by mistake, accident, or
other innocent reason,'' end of quote.
Is that an accurate summary, in your view, Director Comey?
Mr. Comey. Yes. It actually leaves out an important part of
the case, which is the obstruction of justice.
Mr. Cummings. Was he charged with obstruction of justice?
Mr. Comey. No.
Mr. Cummings. And why not?
Mr. Comey. A decision made by the leadership of the
Department of Justice not to insist upon a plea to that felony.
Mr. Cummings. So the question is, do you agree with the
claim that General Petraeus, and I quote, ``got in trouble for
far less,'' end of quote?
Mr. Comey. No.
Mr. Cummings. Do you agree with that statement?
Mr. Comey. No. It's the reverse.
Mr. Cummings. And what do you mean by that?
Mr. Comey. His conduct, to me, illustrates the categories
of behavior that mark the prosecutions that are actually
brought: clearly intentional conduct, knew what he was doing
was a violation of the law, huge amounts of information that,
even if you couldn't prove he knew it, it raises the inference
that he did it--right--an effort to obstruct justice. That
combination of things makes it worthy of a prosecution, a
misdemeanor prosecution but a prosecution nonetheless.
Mr. Cummings. Sitting here today, do you stand by the FBI's
recommendation to prosecute General Petraeus?
Mr. Comey. Oh, yeah.
Mr. Cummings. Do you stand by the FBI's recommendation not
to prosecute Hillary Clinton?
Mr. Comey. Yes.
Mr. Cummings. Director Comey, how many times have you
testified before Congress about the General Petraeus case? Do
you know?
Mr. Comey. I don't think I've ever testified--I don't think
I've testified about it at all. I don't think so.
Mr. Cummings. With that, I would yield back.
Chairman Chaffetz. I have to check the record, but I
believe I asked you a question about it at the time, but maybe
not.
Mr. Comey. You could have. That's why I was----
Chairman Chaffetz. Yeah, yeah.
Mr. Comey. --squinching my face. It could have been at a
Judiciary Committee hearing I was asked about it.
Chairman Chaffetz. Yeah.
We'll now recognize the gentleman from South Carolina, Mr.
Gowdy, for 5 minutes.
Mr. Gowdy. Good morning, Director Comey. Secretary Clinton
said she never sent or received any classified information over
her private email. Was that true?
Mr. Comey. Our investigation found that there was
classified information sent----
Mr. Gowdy. So it was not true?
Mr. Comey. Right. That's what I said.
Mr. Gowdy. Okay. Well, I'm looking for a little shorter
answer so you and I are not here quite as long.
Secretary Clinton said there was nothing marked classified
on her emails either sent or received. Was that true?
Mr. Comey. That's not true. There were a small number of
portion markings on, I think, three of the documents.
Mr. Gowdy. Secretary Clinton said: I did not email any
classified material to anyone on my email. There is no
classified material.
Was that true?
Mr. Comey. No. There was classified material emailed.
Mr. Gowdy. Secretary Clinton said she used just one device.
Was that true?
Mr. Comey. She used multiple devices during the 4 years of
her term as Secretary of State.
Mr. Gowdy. Secretary Clinton said all work-related emails
were returned to the State Department. Was that true?
Mr. Comey. No. We found work-related emails, thousands,
that were not returned.
Mr. Gowdy. Secretary Clinton said neither she nor anyone
else deleted work-related emails from her personal account. Was
that true?
Mr. Comey. That's a harder one to answer. We found traces
of work-related emails on devices or in slack space, whether
they were deleted or whether when a server was changed out,
something happened to them. There's no doubt that there were
work-related emails that were removed electronically from the
email system.
Mr. Gowdy. Secretary Clinton said her lawyers read every
one of the emails and were overly inclusive. Did her lawyers
read the email content individually?
Mr. Comey. No.
Mr. Gowdy. Well, in the interests 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.
False exculpatory statements, they are used for what?
Mr. Comey. Well, either for a substantive prosecution or
for evidence of intent in a criminal prosecution.
Mr. Gowdy. Exactly. Intent and consciousness of guilt,
right? Is that right?
Mr. Comey. Right.
Mr. Gowdy. Consciousness of guilt and intent.
Mr. Comey. Uh-huh.
Mr. Gowdy. In your old job, you would prove intent, as you
just 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 up classified. You
would argue all of that 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 2008, but he says it now. She
affirmatively rejected efforts to give her a State.gov account,
she kept these private emails for almost 2 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, in fact, 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 day, 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 to prove specific intent, you will
formulate 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--it's 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 you 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--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.
Chairman Chaffetz. We'll now recognize the gentlewoman from
New York, Mrs. Maloney.
Mrs. Maloney. Director, thank you for your years of public
service. You have distinguished yourself as the assistant U.S.
attorney for both the Southern District of New York and the
Eastern District of Virginia. That's why you were appointed by
President Bush to be the Deputy Attorney General at the
Department of Justice and why President Obama appointed you as
the Director of the FBI in 2013.
Despite your impeccable reputation for independence and
integrity, Republicans have turned on you with a vengeance
immediately after you announced your recommendation not to
pursue criminal charges against Secretary Clinton. Let me give
you some examples. Representative Turner said, and I quote:
``The investigation by the FBI is steeped in political bias,''
end quote.
Was your investigation steeped in political bias, yes or
no?
Mr. Comey. No. It was steeped in no kind of bias.
Mrs. Maloney. Thank you. The Speaker of the House, Paul
Ryan, was even more critical. He accused you of not applying
the law equally. He said your recommendation shows, and I
quote, ``the Clintons are living above the law. They're being
held to a different set of standards. That is clearly what this
looks like,'' end quote.
How do you respond to his accusations that you held the
Clintons to a different set of standards than anyone else? Did
you hold them to a different standard or the same standard?
Mr. Comey. It's just not--it's just not accurate. We try
very hard to apply the same standard whether you're rich or
poor, white or black, old or young, famous or not known at all.
I just hope folks will take the time to understand the
other cases, because there's a lot of confusion out there about
what the facts were of the other cases that I understand lead
good people, reasonable people, to have questions.
Mrs. Maloney. Senator Cruz also criticized you. He said
that there are, and I quote, ``serious concerns about the
integrity of Director Comey's decision.'' He stated that you,
quote, you ``had rewritten a clearly worded Federal criminal
statute.''
Did you rewrite the law in any way or rewrite any statute?
Mr. Comey. No.
Mrs. Maloney. Now, I hesitate, I truly hesitate to mention
the next one, but Donald Trump took these conspiracy theories
to a totally new level. He said, and I quote: ``It was no
accident that charges were not recommended against Hillary the
exact same day as President Obama campaigned with her for the
first time.''
So did you plan the timing of your announcement to help
Secretary Clinton's campaign event on Tuesday?
Mr. Comey. No. The timing was entirely my own. Nobody knew
I was going to do it, including the press. I'm very proud of
the way the FBI--nobody leaked that. We didn't coordinate it,
didn't tell. Just not a consideration.
Mrs. Maloney. Thank you. Mr. Trump also claimed that
Secretary Clinton bribed the Attorney General with an extension
of her job and I guess this somehow affected your decision.
I know it's a ridiculous question, but I have to ask it.
Did you make your decision because of some kind of bribe to the
Attorney General?
Mr. Comey. No.
Mrs. Maloney. I tell you, are you surprised, as I am, by
the intensity of the attacks from the GOP on you after having
made a decision, a thoughtful decision, an independent decision
with the professional staff of the FBI?
Mr. Comey. I'm not surprised by the intense interest and
debate. I predicted it. I think it's important that we talk
about these things. They inevitably become focused on
individual people. That's okay. We'll just continue to have the
conversation.
Mrs. Maloney. I believe that what we're seeing today is
that if the GOP does not like the results of an investigation
or how it turns out--and we saw they originally were lauding
you--the minute you made your announcement, they're now
attacking you, the same people. And now I predict they'll be
calling for more hearings, more investigations, all at the
expense of the taxpayer, and they do this instead of working on
what the American people really care about. They want Congress
to focus on jobs, the environment, Homeland Security, the
security of our Nation, affordable childcare, affordable
college educations, and an economy that works and helps all
people.
I thank you for performing your job with distinction and
the long history of your whole profession of integrity and
independence. And thank you very much. My time has expired.
Chairman Chaffetz. I thank the gentlewoman.
We'll now recognize the gentleman from Ohio, Mr. Jordan,
for 5 minutes.
Mr. Jordan. Thank you, Mr. Chairman.
Director, thank you for being with us. On Tuesday, you said
any reasonable person in Secretary Clinton's position should
have known that an unclassified system was no place for these
conversations. You said on Tuesday some of her emails bore
classified markings, and you also said on Tuesday there were
potential violations of the appropriate statutes.
Now, I know a bunch of prosecutors back home would look at
that fact pattern, look at that evidence, you even referenced
in your opening statement, some of your prosecutor--friends in
the prosecution business have been on TV and said they would
have looked at that same evidence and they would have taken it
to a grand jury, but on Tuesday, you said and, today, in your
opening statement, you said no reasonable prosecutor would
bring such a case. And then in your statement Tuesday, you cite
factors that helped you make that decision and make that
statement, and one of the factors you said was consider the
context of a person's actions.
Now, typically, when I hear ``context'' in the course of a
criminal investigation, it's from the defense side, not the
prosecution side; it's at the end of the case, after there's
been a trial and a guilty verdict; and it's during the
sentencing phase, mitigating circumstances. That's the context
we typically think about, but you said it on the front end. You
said ``consider the context of the person's actions,'' and so
I'm curious, what does ``consider the context'' mean? Because a
lot of Americans are thinking just what the chairman talked
about in his opening statement, that there are two standards,
one for we the people and one for the politically connected. A
lot of folks I get the privilege of representing back in Ohio
think that when you said ``consider the context,'' they think
that's what Mr. Gowdy just talked about, the fact that she's a
former First Lady, former Secretary of State, former Senator,
major party's nominee for the highest office in the land, and,
oh, by the way, her husband just met with the individual you
work with at an airport in Arizona 5 days ago.
So you said none of that influenced your decision, but tell
us what ``consider the context'' means.
Mr. Comey. Yeah. Thank you, Mr. Jordan. What I was trying
to capture is the fact that the exercise of prosecutorial
discretion is always a judgment call, it is in every single
case, and among the things you consider are, what was this
person's background? What was the circumstances of the offense?
Were they drunk? Were they inflamed by passion? Was it somebody
who had a sufficient level of education and training and
experience that we can infer certain things from that, to
consider the entire circumstances of the person's offense
conduct and background? I did not mean to consider political
context.
Mr. Jordan. Okay. The entire circumstances, and Mr. Gowdy
just talked about this scheme, remember what she did, right?
She sets up this unique server arrangement. She alone controls
it. On that server, on that email system are her personal
emails, her work-related emails, Clinton Foundation
information, and, now we know, classified information. This
gets discovered. We find out this arrangement exists. Then what
happens? Her lawyers, her legal team decides which ones we get
and which ones they get to keep. They made the sort on front
end. And then we found out the ones that they kept and didn't
give to us, didn't give to the American people, didn't give to
Congress, the ones they kept, they destroyed them. And you
don't have to take my word. I'll take what you said on Tuesday.
They deleted all emails that they did not return to the State
Department, and the lawyers cleaned their devices in such a way
as to preclude complete forensic recovery. Now, that sounds
like a fancy way of saying they hid the evidence, right? And
you just told Mr. Gowdy thousands of emails fell into those
categories. Now, that seems to me to provide some context to
what took place here.
Did Secretary Clinton's legal team--excuse me. Let me ask
it this way. Did Secretary Clinton know her legal team deleted
those emails that they kept from us?
Mr. Comey. I don't believe so.
Mr. Jordan. Did Secretary Clinton approve those emails
being deleted?
Mr. Comey. I don't think there was any specific instruction
or conversation between the Secretary and her lawyers about
that.
Mr. Jordan. Did you ask that question?
Mr. Comey. Yes.
Mr. Jordan. Did Secretary Clinton know that her lawyers
cleaned devices in such a way as to preclude complete forensic
recovery?
Mr. Comey. I don't believe that she did.
Mr. Jordan. Did you ask that question?
Mr. Comey. Yes.
Mr. Jordan. Do you see how someone could view the context
of what she did? Set up a private system. She alone controlled
it. She kept everything on it. We now know from Ms. Abedin's
deposition that they did it for that very reason, so no one
could see what was there, based on the deposition Ms. Abedin
gave. And then when they got caught, they deleted what they had
and they scrubbed their devices.
Is that part of the context in evaluating this decision?
Mr. Comey. Sure. Sure. And understand what inferences can
be drawn from that collection of facts, of course.
Mr. Jordan. All right.
Mr. Chairman, I yield back.
Chairman Chaffetz. I thank the gentleman.
I'll now recognize the gentlewoman from the District of
Columbia, Ms. Norton, for 5 minutes.
Ms. Norton. Thank you, Mr. Chairman.
Director Comey, I appreciate your conduct of this
investigation in a nonpartisan way, in keeping with the
sterling reputation, which has led Presidents of both parties
to appoint you to highly placed law enforcement positions in
our Federal Government.
I want to say for the record that this hearing, where you
call the prosecutor--and Mr. Comey stands in the place of the
prosecutor, because the Attorney General has accepted entirely
the FBI's recommendations--where you call the prosecutor to
give account for the decision to prosecute or not a particular
individual raises serious questions of separation of powers.
And, particularly, when you're questioning the prosecutor's
decision with respect to the decision to prosecute or not a
particular individual, it raises serious bill of attainder
constitutional questions.
These hearings are so often accusatory that they yield no
guidance as to how to conduct business in the future, and
that's the way it looks. It looks as though that is how this
hearing is going.
Now, of course, now, everyone understands in the abstract
why it is important for security reasons to use official
government mail--or email rather than private accounts--private
email if security matters are involved. Now, that's a very
broad, wide proposition.
Now, there are no rules, so far as I know, requiring
Members of Congress to use their--as to how they use their
official email accounts, whether involving security or not. The
chairman of this committee lists his personal account, for
example, on his business card. I'm--no one says that's wrong. I
don't know if it's wrong or right, because there's no guidance.
Federal agency employees, Members of Congress often have secure
information or at least sensitive information that shouldn't be
made public. Some of our Members are on the Intelligence
Committee or the defense committee or even this committee and
may have such matters. Some of these matters may concern
national security issues, and--I don't know--if something as
sensitive as the itinerary if you're going on a codel as to the
route you are taking and where you will be, all of that could
be on people's personal emails.
Of course, this is the legislative branch, and I spoke of
the separation of powers, and I'm not indicating that there
should be a governmentwide sense that is ordained from on high,
but there ought to be rules that everybody understands,
especially after the Clinton episode, about the use of personal
email. So I'd like your insight for guidance as far as other
Federal employees are concerned or even Members of Congress and
their staff, because I think we could learn from this episode.
So, strictly from a security standpoint, do you believe
that Federal employees, staff, even Members of Congress, should
attempt guidance on the issue of the use of personal emails
versus some official form of communication? What should we
learn from the process the Secretary has gone through? I'm sure
there will be questions about how there was even confusion, for
example, in the State Department, but what should we learn when
it comes to our own use of email or the use of Federal
employees on this question?
Mr. Comey. Can I answer, Mr. Chairman?
Chairman Chaffetz. Sure.
Mr. Comey. The most important thing to learn is that an
unclassified email system is no case for an email conversation
about classified matters. And by that I mean either sending a
document as an attachment over unclassified email that is
classified or having a conversation about something that is a
classified subject on an unclassified email system. That's the
focus of the concern. That's the focus of this investigation.
That it was also a personal email adds to the concern about the
case because of the security vulnerabilities associated with a
personal system, but the root of the problem is people using
unclassified systems to conduct business that is classified.
And so all of us should have access to, if we have access to
classified information, classified communication systems. The
FBI has three levels: unclassified system, a secret system, and
a top secret system. You can email on all three, but you need
to make sure you don't email on the unclass system, even if
that's a government classified system, about matters that are
classified. That's the important lesson learned. Everybody
ought to be aware of it. Everybody ought to be trained on it.
We spend a lot of time training on it in the FBI to make sure
folks are sensitive to the need to move a classified
discussion, even if it doesn't involve sending a document, to
the appropriate forum.
Ms. Norton. Members of Congress included?
Mr. Comey. Of course.
Ms. Norton. Thank you, Mr. Chairman.
Chairman Chaffetz. We'll now recognize the gentleman from
Florida, Mr. DeSantis, for 5 minutes.
Mr. DeSantis. Director, and the reason why that's so
important is because if top secret information is compromised,
that could damage our national security, correct?
Mr. Comey. Yes, by definition.
Mr. DeSantis. And American lives are at stake in some
instances, correct?
Mr. Comey. Yes.
Mr. DeSantis. You mentioned a lot of people were upset that
there were no consequences for Secretary Clinton, but in your
statement, you did point out that administrative and security
consequences would be appropriate if someone demonstrated
extreme carelessness for classified information.
So those consequences, that would include potentially
termination of Federal employment?
Mr. Comey. Correct.
Mr. DeSantis. It could include revocation of security
clearance?
Mr. Comey. Yes.
Mr. DeSantis. And it could include ineligibility for future
employment in national security positions, correct?
Mr. Comey. It could.
Mr. DeSantis. Now, would you as the FBI Director allow
someone in the employ of your agency to work in a national
security capacity if that person had demonstrated extreme
carelessness in handling top secret info?
Mr. Comey. The best answer to that is we would look very
closely at that in a suitability determination. It's hard to
answer in the abstract ``yes'' in all cases, ``no'' in all
cases, but it would be a very important suitability scrub.
Mr. DeSantis. So there would be instances where someone
could be extremely careless but still maintain confidence? I
mean, we have a lot of people who are very competent in this
country who would love to work for your agency, but yet it
would be--potentially you would allow somebody to be extremely
careless and continue on?
Mr. Comey. That's the trouble with answering a
hypothetical. I could imagine if it was a long time ago, and it
was a small amount of conduct or something. That's why it's
hard to say other than it would be a very important part of
the----
Mr. DeSantis. Let's just put it this way. Would being
extremely careless in handling top secret information expose an
employee of the FBI to potential termination?
Mr. Comey. Yes.
Mr. DeSantis. Why shouldn't U.S. officials use mobile
devices when traveling to foreign countries, especially if
they're discussing classified or sensitive information?
Mr. Comey. Because the mobile device will transmit its
signal across networks that are likely controlled or at least
accessed by that hostile power.
Mr. DeSantis. And that's the guidance that the FBI gives
all officials when they're traveling overseas. That's still
good guidance, correct?
Mr. Comey. That's good guidance.
Mr. DeSantis. How did top secret information end up on the
private server? Because your statement addressed Secretary
Clinton. You did not address any of her aides in your
statement. Attorney General Lynch exonerated everybody. That
information just didn't get there on its own, so how did it get
there? Were you able to determine that?
Mr. Comey. Yes. By people talking about a top secret
subject in an email communication.
Mr. DeSantis. So it was----
Mr. Comey. It's not about forwarding a top secret document;
it's about having a conversation about a matter that is top
secret.
Mr. DeSantis. And those were things that were originated by
Secretary Clinton's aides and then sent to her, which would
obviously be in her server, but it was also included Secretary
Clinton originating those emails, correct?
Mr. Comey. That's correct. In most circumstances, it
initiated with aides starting a conversation. In the one
involving top secret information, Secretary Clinton, though,
also not only received but also sent emails that talked about
the same subject.
Mr. DeSantis. And of that top secret information that you
found, would somebody who was sophisticated in those matters,
should it have been obvious to them that that was very
sensitive information?
Mr. Comey. Yes.
Mr. DeSantis. So I guess my issue about knowledge of what
you're doing is in order for Secretary Clinton to have access
to top secret/SCI information, didn't she have to sign a form
with the State Department acknowledging her duties and
responsibilities under the law to safeguard this information?
Mr. Comey. Yes. Anybody who gets access to SCI, sensitive
compartmented information, would sign what's called a read-in
form that lays that out. I'm sure Members of Congress have seen
the same thing.
Mr. DeSantis. And it stresses in that document and other
training people would get that there are certain requirements
to handling certain levels of information. For example, a top
secret document, that can't even be on your secret system at
the FBI, correct?
Mr. Comey. Correct.
Mr. DeSantis. So you have to follow certain guidelines. And
I guess my question is, is she's a very sophisticated person.
She did execute that document, correct?
Mr. Comey. Yes.
Mr. DeSantis. And her aides who were getting the classified
information, they executed similar documents to get a security
clearance, correct?
Mr. Comey. I believe so.
Mr. DeSantis. And she knowingly clearly set up her own
private server in order to--well, actually, let me ask you
that. Was the reason she set up her own private server, in your
judgment, because she wanted to shield communications from
Congress and from the public?
Mr. Comey. I can't say that. Our best information is that
she set it up as a matter of convenience. It was an already
existing system that her husband had, and she decided to have a
domain on that system.
Mr. DeSantis. So the question is, is very sophisticated--
this is information that clearly anybody who had knowledge of
security information would know that it would be classified--
but I'm having a little bit of trouble to see, how would you
not then know that that was something that was inappropriate to
do?
Mr. Comey. Well, I just want to take one of your
assumptions about sophistication. I don't think that our
investigation established that she was actually particularly
sophisticated with respect to classified information and the
levels and the treatment, and so far as we can tell----
Mr. DeSantis. Isn't she an original classification
authority, though?
Mr. Comey. Yes, sir. Yes, sir.
Mr. DeSantis. Good grief. Well, I appreciate you coming.
And I yield back the balance of my time.
Chairman Chaffetz. I thank the gentleman. I ask unanimous
consent to enter into the record two documents that Mr.
DeSantis referred to. One is the Sensitive Compartmented
Information Nondisclosure Agreement. The other one is the
Classified Information Nondisclosure Agreement. Both signed by
Hillary Rodham Clinton. Without objection, so ordered.
Chairman Chaffetz. I now recognize the gentleman from
Missouri, Mr. Clay, for 5 minutes.
Mr. Clay. Thank you, Mr. Chairman. And thank you, Director
Comey, for being here today and for the professionals whom you
lead at the FBI. Two years ago after my urgent request to then-
former Attorney General Eric Holder for an expedited Justice
Department investigation into the tragic death of Michael Brown
in Ferguson, Missouri, I witnessed firsthand the diligence,
professionalism, and absolute integrity of your investigators.
And I have no doubt that was the case in this matter as well. I
did not think it was possible for the majority to exceed their
unprecedented arrogant abuse of official channels and Federal
funds that we have witnessed over the past 2 years as they have
engaged in a partisan political witch hunt at taxpayer expense
against Secretary Clinton.
But I was wrong. This proceeding is just a sequel to that
very bad act. And the taxpayers will get the bill. It is a new
low, and it violates both House rules and the rules of this
committee. So with apologies to you and the FBI for this
blatantly partisan proceeding, let me return to the facts of
this case as you have clearly outlined them.
First question: Did Secretary Clinton or any member of her
staff intentionally violate Federal law?
Mr. Comey. We did not develop clear evidence of that.
Mr. Clay. Did Secretary Clinton or any member of her staff
attempt to obstruct your investigation?
Mr. Comey. We did not develop evidence of that.
Mr. Clay. In your opinion, do the mistakes Secretary
Clinton has already apologized for and expressed regret for
rise to a level that would be worthy of Federal prosecution?
Mr. Comey. As I said Tuesday, our judgment, not just mine,
but the team's judgment at the FBI, is that the Justice
Department would not bring such a case. No Justice Department
under any--whether Republican or Democrat administration.
Mr. Clay. Thank you for that response. I know the FBI pays
particular attention to groups by training agents and local law
enforcement officers and participating in local hate crime
working groups. Is that right?
Mr. Comey. Yes, sir.
Mr. Clay. Some of these organizations seem relatively
harmless. But others appear to be very dangerous and growing.
Some even promote genocide in their postings and rhetoric
online. In your experience, how dangerous are these groups and
have they incited violence in the past?
Mr. Comey. I think too hard to answer, Congressman, in the
abstract. There are some groups that are dangerous. There are
some groups that are exercising important protection--protected
speech under the First Amendment.
Mr. Clay. Okay. Let me ask a more direct question. A
gentleman named Andrew Anglin is the editor of a Web site
called The Daily Stormer that is dedicated to the supremacy of
the white race as well as attacking Jews, Muslims, and others.
The Web site features numerous posts with the hashtag ``white
genocide'' to protest what they contend is an effort to
eliminate the white race. Are you familiar with this movement?
Mr. Comey. I'm not.
Mr. Clay. Okay. Well, this hashtag has been promoted all
over social media by a growing number of white supremacists.
For example, one Nazi sympathizer tweeted repeatedly using the
handle @whitegenocidetm. Are you concerned as some groups are
increasing their followers in this way, particularly if some of
those followers in this way, particularly if some of those
followers could become violent?
Mr. Comey. I don't know the particular enough to comment,
Congressman. We are always concerned when people go beyond
protected speech, which we do not investigate, to moving
towards acts of violence. And so our duty is to figure out when
have people walked outside the First Amendment protection and
are looking to kill folks or hurt folks. But I don't know
enough to comment on the particular.
Mr. Clay. I see. Well, one of my biggest concerns is that
certain public figures are actually promoting these dangerous
groups even further. And as you may know, one of our most vocal
candidates for President retweeted @whitegenocidetm. Three
weeks later, he did it again. Two days after that, he retweeted
a different user whose image also included the term ``white
genocide,'' and that's not even all of them. Director Comey,
don't these actions make it easier for these racist groups to
recruit even more supporters?
Mr. Comey. I don't think I'm in a position to answer that
in an intelligent way sitting here.
Mr. Clay. Well, I appreciate you trying. And thank you, Mr.
Director, for your exceptional and principled service to our
country. I yield back.
Chairman Chaffetz. Thank you. We'll now recognize the
gentlewoman from Wyoming, Mrs. Lummis, for 5 minutes.
Mrs. Lummis. Welcome, Director. And thank you so much for
being here. My phone has been ringing off the hook in my
Washington office, in my Wyoming office, from constituents who
don't understand how this conclusion was reached. So I
appreciate your being here to help walk us through it. And
here's the issue that the people that are calling me from
Wyoming are having. They have access to this statute. It's
Title 18 U.S. Code 1924. And I'm going to read you this
statute. It says, ``Whoever being an officer, employee,
contractor, or consultant to the United States and by virtue of
his office employment, position, or contract becomes possessed
of documents or materials containing classified information of
the United States knowingly removes such documents or materials
without authority and with the intent to retain such documents
or materials at an unauthorized location shall be fined under
this title or imprisoned for not more than one year or both.''
Armed with that information, they're wondering how Hillary
Clinton, who is also an attorney, and attorneys are frequently
held to a higher standard of knowledge of the law, how this
could not have come to her attention. She was the Secretary of
State. Of course, the Secretary of State is going to become
possessed of classified materials. Of course she was an
attorney. She practiced with a prominent Arkansas law firm, the
Rose Law Firm. She knew from her White House days with her
husband, the President, that classified materials can be very
dangerous if they get into the wrong hands.
She had to have known about this statute because she had to
have been briefed when she took over the job as the Secretary
of State. So how, given that body of knowledge and experience,
could this have happened in a way that could have potentially
provided access by hackers to confidential information?
Mr. Comey. No, it's a good question, a reasonable question.
The protection we have as Americans is that the government in
general, and in that statute in particular, has to prove before
they can prosecute any of us, that we did this thing that's
forbidden by the law, and that when we did it, we knew we were
doing something that was unlawful. We don't have to know the
code number, but that we knew we were doing something that was
unlawful. That's the protection we have. And it's one I've
worked for very hard. When I was in the private sector, I did a
lot of work with the Chamber of Commerce to stop the
criminalization of negligence in the United States.
Mrs. Lummis. May I interrupt and suggest that this statute
says ``knowingly removes such documents or materials without
authority and with the intent to retain such documents or
materials at an unauthorized location.'' The intent here in the
statute is to retain the documents at an unauthorized location.
It's not intent to pass them on to a terrorist, or to someone
out in Internetland. It's just the intent to retain the
documents or materials at an unauthorized location.
Mr. Comey. It's more than that, though. You'd have to show
that and prove criminal intent, both by law, that's the way the
judge would instruct a jury, and practice at the Department of
Justice. They have reserved that statute, even though it's just
a misdemeanor, for people who clearly knew they were breaking
the law. And that's the challenge. So should have known, must
have known, had to know, does not get you there. You must prove
beyond a reasonable doubt that they knew they were engaged in
something that was unlawful.
Mrs. Lummis. Okay. Then----
Mr. Comey. That's the challenge.
Mrs. Lummis. Then may I turn to her attorneys. Did all of
Secretary Clinton's attorneys have the requisite clearances at
the time they received all of her emails, especially those that
were classified at the time they were sent?
Mr. Comey. No.
Mrs. Lummis. They destroyed, as has been noted, 30,000
emails of Secretary Clinton's. Do you have 100 percent
confidence that none of the 30,000 emails destroyed by
Secretary Clinton's attorneys was marked as classified?
Mr. Comey. I don't have 100 percent confidence. I'm
reasonably confident some of them were classified. There were
only three in the entire batch we found that bore any markings
that indicated they were classified. So that's less likely. But
surely, it's a reasonable assumption that some of the ones they
deleted contained classified information.
Mr. Blum. Thank you, Director. Thank you, Mr. Chairman. I
yield back.
Chairman Chaffetz. I now recognize the gentleman from
Massachusetts, Mr. Lynch, for 5 minutes.
Mr. Lynch. Thank you, Mr. Chairman. Thank you, Director
Comey, for appearing here to help the committee with its work.
Director Comey, Secretary Clinton's certainly not the only
Secretary of State to use a personal email account with
information later identified as being classified. I just want
to show you. This is a book that was written by former
Secretary of State Colin Powell. And in his book, he says, ``To
complement the official State Department computer in my office,
I installed a laptop computer and on a private line. My
personal email account on a laptop allowed me direct access to
anyone online. So I started shooting emails to my principal
assistants, to individual ambassadors, and increasingly, to my
foreign minister colleagues who like me were trying to bring
their ministries into the one 186,000 miles per second world.''
Were you aware of this, that Secretary Colin Powell actually
had a private server as well?
Mr. Comey. Not a private server. I think he used a
commercial email account for State Department business.
Mr. Lynch. Private line, unprotected.
Mr. Comey. Correct. Not a State Department email system.
Mr. Lynch. Right. Right. He went rogue, so to speak. Right?
Mr. Comey. I don't know whether I'd say that.
Mr. Lynch. Yeah. All right. Okay. I'm not going to put
words in your mouth. But do you think this was careless for him
to do that, just to start--you know, get his own--he got his
own system. He installed a laptop computer on a private line.
``My personal email account was on a laptop and allowed me
direct access to anyone, anyone online.'' That's his own
statement. I'm just trying to compare Secretaries of State,
because Secretary Powell's never been here. As a matter of
fact, when we asked him for his emails, unlike the 55,000 that
we received from Secretary Clinton, he said, ``I don't have any
to turn over.'' This is a quote. This was on ABC's This Week.
He explained, ``I don't have anything to turn over. I didn't
keep a cache of them. I did not print them off. I do not have
thousands of pages somewhere on my personal files.'' But he was
Secretary of State, and he operated, you know, on a private
system. Were you aware of that?
Mr. Comey. Not at the time 15 years ago. But I am now.
Mr. Lynch. Yeah. Okay. So recently--well, back in October
2015, the State Department sent Secretary Powell a letter
requesting that he contact his email provider, AOL, to
determine whether any of his emails are still on the
unclassified systems. Are you aware of that ongoing
investigation?
Mr. Comey. I don't know of an investigation. I am----
Mr. Lynch. Well, that request for information from former
Secretary Powell.
Mr. Comey. Yes, I am.
Mr. Lynch. You're aware of that. Are you surprised that he
has never responded?
Mr. Comey. I don't know enough to comment. I don't know
exactly what conversation he had with the State Department.
Mr. Lynch. All right. I'm trying to look at the--you know,
where we have a lot of comparisons in other cases. And there
seems, like all the cases where prosecutions have gone forward,
the subject of the investigation has demonstrated a clear
intent to deliver classified information to a person or persons
who were unauthorized to receive that. So if you look at the,
you know, PFC Bradley Manning, now Chelsea Manning, that was a
court martial. But he demonstrated a clear intent to publish
that information, which was classified. Julian Assange, the
WikiLeaks editor, I guess, and publisher.
Again, a wide and deliberate attempt to publish classified
information. General Petraeus, which we talked about earlier
today, shared information with his biographer. And Jeffrey
Sterling sending stuff to The New York Times. Former CIA
officer Kiriakou, who was interested in writing a book, so he
hung on to his information. And even former Director of the
CIA, John Deutch, who retained classified information on a
couple of servers, one in Belmont, Massachusetts, and one in
Bethesda, Maryland. And that was after he became a private
citizen.
So in all those cases, there's a clear intent. As you said
before, you look at what people did and what they were thinking
when they did that. And I would just ask you: Is there a clear
distinction between what those people did and what Secretary
Clinton did in her case?
Mr. Comey. In my view, yes. The Deutch case illustrates it
perfectly. And he took huge amount of documents, almost all at
the TS/SCI level, had them in hard copy at his house, had them
on an unclassed system connected to the Internet, attempted to
destroy some of them when he got caught. Admitted: I knew I
wasn't supposed to be doing this. So you have clear intent,
huge amounts of documents, obstruction of justice, those are
the kinds of cases that get prosecuted. That's what I said
when--I meant it when I said it. In my experience, which is
three decades, no reasonable prosecutor would bring this case.
I know that frustrates people. But that's the way the law is.
And that's the way the practice is at the Department of
Justice.
Mr. Lynch. Thank you for your testimony and for your
service. I yield back.
Chairman Chaffetz. Thank you gentleman.
We'll now go to the gentleman from North Carolina, Mr.
Meadows, for 5 minutes.
Mr. Meadows. Thank you, Mr. Chairman. Director Comey, thank
you. There has been much said today about criticizing you and
your service. And I want to go on record that even though many
of my constituents would love for me to criticize your service
because of the conclusion you reached, never have I, nor will
I, criticize your service. And we appreciate your service to
this country and the integrity. So I'm going to focus on the
things that you said, not the conclusion that you drew.
And Congressman Trey Gowdy and I talked a little bit about
this, but on February 4, 2016, Secretary Clinton, during a
presidential debate said, ``I never sent or received any
classified material. They are retroactively classifying it,''
closed quote. And so in your statement on July 5, you said that
there were indeed 110 emails, 52 email chains, which there was
classified information on it at the time it was sent or
received. So those two statements, both of them cannot be true.
Is that correct? Your statement and her statement?
Mr. Comey. Yeah. It's not accurate to say that she did not
send or receive----
Mr. Meadows. So she did not tell the truth during that
presidential debate that she never sent or received classified
information, and it was retroactively classified?
Mr. Comey. Yeah. I don't think that's a question I should
be answering what was in her head----
Mr. Meadows. Well, either your statement's not true or hers
is not true. Both of them cannot be true. So is your statement
true?
Mr. Comey. That I can speak to. My----
Mr. Meadows. Okay. Your statement is true. So the American
people will have to judge with her statement not being true. So
let me go on to another one. On October 22 she said, ``There
was nothing marked classified on emails either sent or
received.'' And in your statement you said, ``A very small
number of emails contained classified information bore markings
indicating the presence of classified information at the
time.'' So she makes a statement that says there was no
markings. You make a statement that there was. So her statement
was not true.
Mr. Comey. Well, that one actually I have a little bit of
insight into her statement, because we asked her about that.
There were three documents that bore portion markings where
you're obligated, when something is classified, to put a
marking on that paragraph.
Mr. Meadows. Right.
Mr. Comey. And there were three that bore C in parens,
which means that's confidential classified----
Mr. Meadows. So a reasonable person who has been a Senator,
a Secretary of State, a First Lady, wouldn't a reasonable
person know that that was a classified marking as a Secretary
of State?
Mr. Comey. Yeah.
Mr. Meadows. A reasonable person. That's all I'm asking.
Mr. Comey. Yeah. Before this investigation I probably would
have said yes. I'm not so sure. I don't find it incredible----
Mr. Meadows. Director Comey, come on. I mean, I've only
been here a few years, and I understand the importance of those
markings. So you're suggesting that a long length of time that
she had no idea what a classified marking would be? That's your
sworn testimony today?
Mr. Comey. No, no, not that she would have no idea what a
classified marking would be. But it's an interesting question
as to whether she--this question about sophistication came up
earlier. Whether she was actually sophisticated enough to
understand what a C in parens mean.
Mr. Meadows. So you're saying this former Secretary of
State is not sophisticated enough to understand a classified
marking.
Mr. Comey. No. That's not what I'm saying.
Mr. Meadows. That's a huge statement.
Mr. Comey. That's not what I'm saying. You asked me did I
assume that someone would know. Probably before this
investigation, I would have. I'm not so sure of that answer any
longer. I think it's possible, possible, that she didn't
understand what a C meant when she saw it in the body of an
email like that.
Mr. Meadows. After years in the Senate, and Secretary of
State? I mean, that's hard for me and the American people to
believe, Director Comey. And I'm not questioning your analysis
of it, but wouldn't a reasonable person think that someone who
has the highest job of handling classified information
understand that?
Mr. Comey. I think that's a conclusion a reasonable person
would draw. It may not be accurate.
Mr. Meadows. So in that, let me go a little bit further.
Because that last quote actually came on October 22, 2015,
under sworn testimony before the Benghazi Committee. So if she
gave sworn testimony that a reasonable person would suggest was
not truthful, isn't it a logical assumption that she may have
misled Congress, and we need to look at that further?
Mr. Comey. Well, the reasonable person test is not what you
look at for perjury or false statements. But like I said, I can
understand why people would ask that question.
Mr. Meadows. All right. So let me, in the last little
portion of this, in your 3-1/2 hour interview on Saturday, did
she contradict some of these public statements in private?
Because you said she didn't lie to the FBI. But it's apparent
that she lied to the American people. So did she change her
statements in that sworn testimony with you last Saturday?
Mr. Comey. I haven't gone through that to parse that. I
have----
Mr. Meadows. Can you do that and get back to this
committee? Because it's important, I think, to the American
people and to transparency.
Mr. Comey. I'm sure. And as the chairman and I have talked
about, I'm sure the committee's going to want to see documents
in our investigation and whatnot, and we'll work to give you
whatever we can possibly give you under our law. But I haven't
done that analysis at this point.
Mr. Meadows. Will you, and get that back to us?
Chairman Chaffetz. The gentleman's time has expired. And
we'll now recognize the gentleman from Tennessee, Mr. Cooper,
for 5 minutes.
Mr. Cooper. Thank you, Mr. Chairman. And thank you,
Director Comey. I hate to see one of America's most
distinguished public servants pilloried before this committee.
We're all highly partisan here. We're good back seat drivers.
We're all today apparently armchair prosecutors. And you stated
the truth when you said that you didn't know of anyone who
would bring a case like this. And some of the prosecutors have
had decades to do that. I hope that this committee's effort is
not intended to intimidate you or the FBI or law enforcement in
general, or government employees.
And I'm thankful at this moment that you have such a
lifetime record of speaking truth to power. Because that's very
important. It's also very important that apparently you're a
lifelong Republican. You're just here to do your job, to state
the facts. I think the key issue here is whether, in fact,
there's a double standard, where some Americans are being
treated differently than others. And I think I can rely on my
Republican colleagues to make sure that Hillary Clinton's
treated no better than anybody else. There should be some
attention given to make sure that she's not treated any worse
than anybody else.
I think we all know that we wouldn't be having this
hearing, especially on an emergency basis, unless she were
running for President. My colleague from Massachusetts has just
pointed out that previous Secretaries of State are not being
called on the carpet, whether that be Condoleezza Rice or Colin
Powell or others.
But I think the grossest double standard here today is the
fact that all the members of this committee, every Member of
Congress, is not subject to the same law that Secretary Clinton
was subject to. And as lawmakers, that means that we have
exempted ourselves from the standard of other Federal
employees. My colleague from D.C., Ms. Norton, referred to
this. Why did we exempt ourselves from the same rules?
Apparently our chairman lists his private email account on his
business card. We all have access to classified information.
So I would like to challenge my Republican colleagues here
today. Let's work together and introduce legislation to make
the same laws apply to us as apply to the executive branch and
to Secretary Clinton. I would be happy to join in such
legislation to make sure that we're not being hypocritical on
this panel, that we're holding ourselves to the same standards
as Secretary Clinton, and not trying to accuse her of things
that we may be guilty of ourselves.
I bet my colleagues would be the first to complain if, for
example, emails were retroactively classified. That's a
situation that most people in public service would object to
pretty strongly. How did you know at the time if you had no
idea? So I think it's very important if we want as Congress to
have the trust of the American people to not be hypocritical,
to uphold the same standards that we want to see upheld by
others, and I'm just thankful at this moment in our history
that we have someone like you who's in charge of the FBI.
Because too many things are highly politicized. And the last
thing we should do is criminalize our political system.
I didn't see any of my Republican colleagues complain when
former Governor Bob McDonald was exonerated by an 8-0 vote at
the Supreme Court for having done certain things that I think
most Americans would find highly objectionable. But our court,
on a bipartisan, unanimous basis, exonerated him just a week or
two ago.
So I think this is a moment for committee members to
reflect, to take a deep breath, to calm down and realize
exactly what you said, that no reasonable prosecutor would have
brought this case. And thank you for stating that so clearly
and publicly. I yield back the balance of my time.
Mr. Cummings. Will the gentleman yield?
Mr. Comey. I yield to the ranking member.
Mr. Cummings. Mr. Director, let me ask you this: First of
all, I associate myself with everything the gentleman just
said. You were talking about some markings a little bit
earlier. Is that right? Can you describe what those markings
are like? Markings on documents. I think you said there were
three documents with certain markings on them----
Mr. Comey. Yeah.
Mr. Cummings. --that indicated classified. Go ahead.
Mr. Comey. Yeah, there were three emails that down in the
body of the email, in the three different emails, there were
paragraphs that, at the beginning of the paragraph, had a
parenthesis, a capital C, and then a parenthesis. And that is a
portion marking to indicate that----
Mr. Cummings. That paragraph.
Mr. Comey. --that paragraph is classified at the
confidential level, which is the lowest level of
classification.
Mr. Cummings. And so out of the 30,000 documents, you found
these three markings? Is that what you're saying?
Mr. Comey. Three emails for C markings down in the body.
None of the emails had headers, which is at the top of a
document that says it's classified. Three had within the body
the portion marking for C.
Mr. Cummings. Thank you.
Chairman Chaffetz. Thank the gentleman. I now recognize the
gentleman from Tennessee, Mr. Duncan, for 5 minutes.
Mr. Duncan. Thank you, Mr. Chairman. Mr. Meadows mentioned
one instance in which Secretary Clinton said that she did not
mail any classified material to anyone. Actually, she said that
several other times. But it is accurate, Director Comey, that
you found at least 110 instances of when she had emailed
classified material?
Mr. Comey. 110 that she either received or sent.
Mr. Duncan. Right. And it also is accurate that, quote,
``Clinton's lawyers cleaned their devices in such a way as to
preclude complete forensic recovery''?
Mr. Comey. Correct.
Mr. Duncan. And also when she said--when Secretary Clinton
said that nothing she sent was marked classified, and you said,
in your press conference, ``but even if information is not
marked classified in an email, particularly are participants
who know or should know that the subject matter's classified
are still obligated to protect it.'' Do you feel that Secretary
Clinton knew, or should have known, that she was obligated to
protect classified information?
Mr. Comey. Yes.
Mr. Duncan. With her legal background and her long
experience in government. Also, she said at one point that she
has directed all emails, work-related emails, to be forwarded
to the State Department. Is it also accurate that you
discovered thousands of other emails that were work-related
other than the 30,000 that she submitted?
Mr. Comey. Correct.
Mr. Duncan. Before I came to Congress, I spent several
years as a criminal court judge. I presided over several
hundred felony criminal cases. And I can assure you that I saw
many cases where the evidence of criminal intent was flimsier
than the evidence in this case. But do you realize that great
numbers of people across this country felt that you presented
such an incriminating case against Secretary Clinton in your
press conference that they were very surprised or even shocked
when you reached the conclusion to let her off? You doubt that
great numbers feel that way?
Mr. Comey. No. I think so. And I understand the question.
And I wanted to be as transparent as possible. We went at this
very hard to see if we could make a case. And I wanted the
American people to see what I honestly believed about the whole
thing.
Mr. Duncan. Well, do you understand, as the chairman said
earlier, that great numbers of people feel now that there's a
one standard of justice for the Clintons and another for
regular people?
Mr. Comey. Yeah, I've heard that a lot. It's not true, but
I've heard it a lot.
Mr. Duncan. Well, even the ranking member who was here,
who, of course as we understand, had to defend Secretary
Clinton as strongly as possible, he almost begged you to
explain the gap between the incriminating case that you
presented and the conclusion that was reached. Did that
surprise you that he felt so strongly that there was this big
gap?
Mr. Comey. No. Not at all. These--it's a complicated
matter. It involves understanding how the Department of Justice
works across decades, house prosecutorial discretion is
exercised. I get that folks see disconnection, especially when
they see a statute that says ``gross negligence.'' Well, the
Director just said she was extremely careless. So how is that
not prosecutable? So it takes an understanding of what's one on
over the last 99 years. What's the precedent? How do we treat
these cases. I totally get people's questions. And I think
they're in good faith.
Mr. Duncan. We talked about gross negligence here. And you
said that Secretary Clinton was extremely careless with this
classified material, and how dangerous it could be, how
threatening, even to people's lives that it could be to
disclose classified material. Do you agree that there is a very
thin line between gross negligence and extreme carelessness?
And would you explain to me what you consider to be that
difference?
Mr. Comey. Sure, Judge--Congressman. As a former judge, you
know there isn't actually a great definition in the law of
gross negligence. Some courts interpret it as close to willful,
which means you know you're doing something wrong. Others drop
it lower. My term extremely careless is--I'm trying to be kind
of an ordinary person. That's a commonsense way of describing
it sure looks real careless to me. The question of whether that
amounts to gross negligence, frankly, is really not at the
center of this, because when I look at the history of the
prosecutions and see it's been one case brought on a gross
negligence theory, I know from 30 years, there's no way anybody
at the Department of Justice is bringing a case against John
Doe or Hillary Clinton for the second time in 100 years based
on those facts.
Mr. Duncan. You ended your statement to Congressman Cooper
a while ago saying once again that no reasonable prosecutor
could have brought this case. Yet you also mentioned earlier
today that you'd seen several of your friends and other
prosecutors who've said publicly, many across this country,
that they would have been glad to prosecute this case.
Mr. Comey. I smile because they're friends. And I haven't
talked to them. And I want to say: Guys, so where were you over
the last 40 years? Where were these cases? They just have not
been brought. For reasons that I said earlier, it's a good
thing that the Department of Justice worries about prosecuting
people for being careless. I don't like it. As a citizen I want
people to show they knew they were breaking the law, and then
we'll put you in jail.
Mr. Duncan. Of course, you know many people have been
prosecuted for gross negligence by the Federal Government, by
the FBI.
Chairman Chaffetz. The gentleman's time has expired.
Mr. Duncan. Thank you.
Chairman Chaffetz. We'll now recognize the gentleman from
Virginia, Mr. Connolly, for 5 minutes.
Mr. Connolly. Thank you. And welcome, Director Comey. And
although our politics are different, I gather you're a
Republican. Is that correct?
Mr. Comey. I have been a registered Republican for most of
my adult life. I'm not registered any longer.
Mr. Connolly. We don't register by party in Virginia. But
many have suspected my politics as being Democratic. And I
thank you for your integrity. As my colleague said, and I said
in my opening statement, your career has been characterized as
speaking truth to power. And you're doing it again today. Just
to set the context, Director Comey, not that you're unaware of
this.
Today's hearing is political theatre. There's not even the
pretense of trying to get at the truth. This is a desperate
attempt under an extraordinary set of circumstances, an
emergency hearing. I don't know what the emergency is other
than one side is about to nominate somebody who is a
pathological narcissist who, you know, is talking about banning
Muslims and Mexicans crossing the border who are all rapists
and women who are pigs and terrified at the prospect of the
consequences of that in the election. So let's grab onto
whatever we can to discredit or try to discredit the other
nominee, punitive nominee. And you took away their only hope.
And so the theater today is actually trying to discredit
you. Subtlety in some cases. My friend from South Carolina uses
big words like ``exculpatory.'' And kind of goes through what a
prosecutor would do. The insinuation being you didn't do your
job. My friend from Wyoming is apparently flooded with citizens
in her home State who are reading the statute that governs
classification. Lot of time on their hands back there, I guess.
But, yeah, this is all designed to discredit your finding. Now,
the FBI interviewed Secretary Clinton. Is that correct?
Mr. Comey. Yes.
Mr. Connolly. Did she lie to the FBI in that interview?
Mr. Comey. I have no basis for concluding that she was
untruthful with us.
Mr. Connolly. And is it a crime to lie to the FBI?
Mr. Comey. Yes, it is.
Mr. Connolly. David Petraeus did lie to the FBI.
Mr. Comey. Yes.
Mr. Connolly. And he prosecuted for that--well, could have
been.
Mr. Comey. Could have been, was not for that----
Mr. Connolly. Right. That's always a judgment call.
Mr. Comey. Correct.
Mr. Connolly. Was she evasive?
Mr. Comey. I don't think the agents assessed she was
evasive.
Mr. Connolly. How many emails are we talking about, total
universe, that were examined by your team?
Mr. Comey. Tens of thousands.
Mr. Connolly. Tens of thousands. And how many are in a
questionable category that maybe could have, should have been
looked at more carefully because there could be some element of
classification? Apparently, my friend from North Carolina
assumes we're all intimately familiar with the fact that if a C
appears, it means a classification, though there seems to be
some dispute about that because the State Department, as I
understand it, has actually said some of those were improperly
marked and shouldn't have had the C. Are you aware of that?
Mr. Comey. Yes.
Mr. Connolly. Yes. So could it be that in her 100-trip, 4
years--100 overseas trips to 100 countries as Secretary of
State trying to restore U.S. credibility that had been
destroyed in the previous 8 years overseas, and tens of
thousands of email communications, not including phone calls
and classified conversations in SCIFs and the like, that maybe
the small percentage of emails, she didn't pay as much
attention to them as maybe in retrospect one would hope she
would have. Is that a fair conclusion? Could that be a fair
conclusion?
Mr. Comey. I don't usually deal in maybes. It's possible.
Mr. Connolly. Well, you do deal in distinguishing between
willful and inadvertent.
Mr. Comey. Sure.
Mr. Connolly. And in this case, you concluded it has to be
in the latter category. It wasn't willful.
Mr. Comey. We concluded there was not adequate evidence of
willful conduct.
Mr. Connolly. Right. So there's no obfuscation here, unlike
the Petraeus case. And there's no evasion. There's no lying.
There's no willful intent to compromise classified material,
despite the insinuations of my friends on the other side of the
aisle. And the only hope left in this political theatre is to
discredit you and your team in the hopes that, therefore, you
won't have credibility and we can revisit this monstrous crime
of using a private server, that server being the server of the
former President of the United States that maybe Mrs. Clinton
thought would be more secure than the leaky system at the State
Department. I yield back.
Chairman Chaffetz. We now recognize the gentleman from
Texas, Mr. Hurd, for 5 minutes.
Mr. Hurd. Thank you, Mr. Chairman. Mr. Chairman, I'm
offended. I'm offended by my friends on the other side of the
political aisle saying this is political theatre. This is not
political theatre. For me, this is serious. I spent 9-1/2 years
as an undercover officer in the CIA. I was the guy in the back
alleys collecting intelligence, passing it to lawmakers. I've
seen my friends killed. I've seen assets put themselves in
harm's way. And this is about protecting information, the most
sensitive information the American government has. And I wish
my colleagues would take this a little bit more seriously.
Mr. Comey, Director Comey, excuse me, SAP, Special Access
Program. You alluded to earlier that includes SCI information.
Does SCI information include HUMINT and SIGINT?
Mr. Comey. Yes.
Mr. Hurd. HUMINT and SIGINT. Human intelligence information
collected from people that are putting themselves in harm's way
to give us information to drive foreign policy. Signals
intelligence. Some of the most sensitive things to understand;
what Al Qaeda is doing; what ISIS is doing. So the former
Secretary of State had an unauthorized server, those are your
words, in her basement, correct?
Mr. Comey. Correct.
Mr. Hurd. Who was protecting that information? Who was
protecting that server?
Mr. Comey. Well, not much. There was a number of different
people who were assigned as administrators of the server.
Mr. Hurd. And at least seven email chains, or eight that
was classified as TS/SCI.
Mr. Comey. Correct.
Mr. Hurd. So the former Secretary of State, one of the
President's most important advisors on foreign policy and
national security, had a server in her basement that had
information that was collected from our most sensitive assets,
and it was not protected by anyone? And that's not a crime?
That's outrageous. People are concerned. What does it take for
someone to misuse classified information and get in trouble for
it?
Mr. Comey. Well, it takes mishandling it and criminal
intent.
Mr. Hurd. And so an unauthorized server in the basement is
not mishandling?
Mr. Comey. Well, no, there is evidence of mishandling here.
This whole investigation at the end focused on is there
sufficient evidence of intent.
Mr. Hurd. Was this unanimous opinion within the FBI on your
decision?
Mr. Comey. Well, the whole FBI wasn't involved, but the
team of agents, investigators, analysts, technologists, yes.
Mr. Hurd. Did you take into any consideration the impact
that this precedence can set on our ability to collect
intelligence overseas?
Mr. Comey. Yes. My primary concern is the impact on what
other employees might think in the Federal Government.
Mr. Hurd. And you don't think this sends a message to other
employees that if a former Secretary of State can have an
unauthorized server in their basement that transmits top secret
information, that that's not a problem?
Mr. Comey. Oh, I worry very much about that. That's why I
talked about that in my statement, because an FBI employee
might face severe discipline. And I want them to understand
that those consequences are still going to be there.
Mr. Hurd. Director Comey, do you have a server in your
basement?
Mr. Comey. I do not.
Mr. Hurd. Does anybody in the FBI have a server in their
basement or in their house?
Mr. Comey. I don't know.
Mr. Hurd. Do you think it's likely?
Mr. Comey. I think it's unlikely.
Mr. Hurd. I would think so, too. I would think so, too.
Because I've always been proud to serve alongside the men and
women that you represent. So there was no dissenting opinion
when you made this decision. It's your job to be involved in
counterintelligence as well?
Mr. Comey. Yes.
Mr. Hurd. So that means protecting our secrets from foreign
adversaries collecting them. Is that correct?
Mr. Comey. Correct.
Mr. Hurd. Did this activity you investigated make America's
secrets vulnerable to hostile elements?
Mr. Comey. Yes.
Mr. Hurd. Do you think that pattern of behavior would
continue?
Mr. Comey. I'm sorry?
Mr. Hurd. Do you think that pattern of behavior would
continue?
Mr. Comey. Would continue?
Mr. Hurd. By our former Secretary of State.
Mr. Comey. I'm not following you. You mean if we hadn't--if
this had not come to light, you mean?
Mr. Hurd. Right now, based on what we see, do you think
there's going to be other elements within the Federal
Government that think it's okay to have an unauthorized server
in their basement?
Mr. Comey. Well, they better not. That's one of the reasons
I'm talking about----
Mr. Hurd. So, but what is the ramifications of them doing
that? You know, how is there going to be any consequences
levered if it's not being levered here? Because, indeed, you're
setting a precedent.
Mr. Comey. Yeah. The precedent--I want people to
understand, again, I only am responsible for the FBI, that
there will be discipline from termination to reprimand and
everything in between for people who mishandle classified
information.
Mr. Hurd. Director Comey, I'm not a lawyer, and so I may
misstate this. Is there such a thing as the case of first
impression? And why was this not possibly one of those?
Mr. Comey. There is such a thing, which just means the
first time you do something. The reason this isn't one of those
is that's just not fair. That would be treating somebody
differently because of their celebrity status, or because of
some other factor doesn't matter. We have to treat people--the
bedrock of our system of justice, we treat people fairly. We
treat them the same based on their----
Mr. Hurd. And that person mishandling the most sensitive
information that this government can collect is not fair--it's
not fair to punish someone who did that?
Mr. Comey. Not on these facts. It would be fair--if that
person worked for me, it would be fair to have a robust
disciplinary proceeding. It's not fair to prosecute that person
on these facts.
Mr. Hurd. Mr. Chairman, I yield back the time I do not
have.
Chairman Chaffetz. Thank the gentleman. We'll now recognize
the gentleman from Pennsylvania, Mr. Cartwright, for 5 minutes.
Mr. Cartwright. Thank you, Mr. Chairman. And I'd like to
open by acknowledging my colleague from North Carolina, Mr.
Meadows, here he comes back in the room, for acknowledging your
integrity, Director Comey. I think bipartisan sentiments like
that are few and far between around here. And I appreciate
Congressman Meadows' remark. You are a man of integrity,
Director Comey. It's troubling to me that that remark from
Congressman Meadows is not unanimous at this point. It used to
be. Just weeks ago, our chairman, Representative Chaffetz,
stated on national TV that Republicans, quote, ``Believe in
James Comey,'' unquote. He said this, and I quote, ``I do think
that in all of the government, he is a man of integrity and
honesty. His finger's on the pulse of this. Nothing happens
without him. And I think he is going to be the definitive
person to make a determination or a recommendation.''
But just hours after your actual recommendation came out,
Chairman Chaffetz went on TV and accused you of making a,
quote, ``political calculation.'' And then our Speaker of the
House, weeks ago, referring to you, Director Comey, said, ``I
do believe that his integrity is unequalled. So you're
integrity--it was unanimous about your integrity before you
came to your conclusion. But after, not so much. That's
troubling. And I want to give you a chance, Director Comey, how
do you respond to that? How important to you is maintaining
your integrity before the Nation?
Mr. Comey. I think the only two things I have in life that
matter are the love of my family and friends and my integrity.
So I care deeply about both.
Mr. Cartwright. All right. Now, Director Comey, you
discussed your team a little bit. And they deserve a lot of
credit for all of the hard work and effort that went into this
investigation. And I think you just said that they were
unanimous. That everyone who looked at this agreed that no
reasonable prosecutor would bring a case. Am I correct in that?
Mr. Comey. Yes.
Mr. Cartwright. How many people were on this team?
Mr. Comey. It changed at various times, but somewhere
between 15 and 20, and then we used a lot of other FBI folks to
help from time to time.
Mr. Cartwright. And how many hours were spent on this
investigation?
Mr. Comey. We haven't counted yet. They--I said to them
they moved--they put 3 years of work into 12 calendar months.
Mr. Cartwright. And how many pages of documents did the FBI
review in this investigation?
Mr. Comey. Thousands and thousands and thousands.
Mr. Cartwright. And the agents doing the document review,
were they qualified or were they unqualified?
Mr. Comey. They were an all-star team. They are a great
group of folks.
Mr. Cartwright. How about Secretary Clinton? Did she agree
to be interviewed?
Mr. Comey. Yes.
Mr. Cartwright. Come in voluntarily without the need of a
subpoena?
Mr. Comey. Yes.
Mr. Cartwright. Was she interviewed?
Mr. Comey. Yes.
Mr. Cartwright. Was she interviewed by experienced critical
veteran agents and law enforcement officers, or by some kind of
credulous gullible newbies doing their on-the-job training,
Director?
Mr. Comey. She was interviewed by the kind of folks the
American people would want doing the interview. Real pros.
Mr. Cartwright. All right. You were asked about markings on
a few documents. I have the manual here, Marking Classified
National Security Information. And I don't think you were given
a full chance to talk about those three documents with the
little Cs on them. Were they properly documented? Were they
properly marked according to the manual?
Mr. Comey. No.
Mr. Cartwright. According to the manual, and I ask
unanimous consent to enter this into the record, Mr. Chairman.
Chairman Chaffetz. Without objection, so ordered.
Mr. Cartwright. According to the manual, if you're going to
classify something, there has to be a header on the document,
right?
Mr. Comey. Correct.
Mr. Cartwright. Was there header on the three documents
that we've discussed today that had the little C in the text
someplace?
Mr. Comey. No. They were three emails. The C was in the
body, in the text. But there was no header on the email or in
the text.
Mr. Cartwright. So if Secretary Clinton really were an
expert at what's classified and what's not classified, and were
following the manual, the absence of a header would tell her
immediately that those three documents were not classified. Am
I correct in that?
Mr. Comey. That would be a reasonable inference.
Mr. Cartwright. All right. I thank you for your testimony,
Director. I yield back.
Chairman Chaffetz. I thank the gentleman. We'll now
recognize the gentleman from Colorado, Mr. Buck, for 5 minutes.
Mr. Buck. Good morning, Director Comey.
Mr. Comey. Good morning, sir.
Mr. Buck. Thank you for being here. I also respect your
commitment to law and justice and your career. And the first
question I want to ask you is this hearing unfair? Has it been
unfair to you?
Mr. Comey. No.
Mr. Buck. Thank you. One purpose of security procedures for
classified information is to prevent hostile nations from
obtaining classified information. Is that fair?
Mr. Comey. Yes.
Mr. Buck. And did hostile nations obtain classified
information from Secretary Clinton's servers?
Mr. Comey. I don't know. It's possible. But we don't have
direct evidence of that. We couldn't find direct evidence.
Mr. Buck. I want to, without making this a law school
class, I want to try to get into intent. There are various
levels of intent in the criminal law. Everything from knowingly
and willfully doing something all the way down to strict
liability. Would you agree with me on that?
Mr. Comey. Yes.
Mr. Buck. And in Title 18, most of the criminal laws in
Title 18 have the words ``knowingly'' and ``willfully'' in
them. And that is the standard typically that United States
attorneys prosecute under.
Mr. Comey. Most do. Unlawfully, knowingly, and willfully is
our standard formulation for charging a case.
Mr. Buck. And there are also a variety of others between
the knowingly and willfully standard and the strict liability
standard. And many, like environmental crimes, have a much
lower standard because of the toxic materials that are at risk
of harming individuals. Is that fair?
Mr. Comey. That's correct.
Mr. Buck. Okay. Let's talk about this particular statute,
18 U.S.C. 1924. I take it we could all agree--or you and I can
agree on a couple of the elements. She, Secretary Clinton, was
an employee of the United States.
Mr. Comey. Correct.
Mr. Buck. And as the result of that employment, she
received classified information.
Mr. Comey. Correct.
Mr. Buck. And there's no doubt about those two elements.
Now, I don't know whether the next element is one element or
two, but it talks about knowingly removes such materials
without authority, and with the intent to retain such material
at an unauthorized location. So I'm going to treat those as two
separate parts of the intent element.
First of all, do you see the word ``willfully'' anywhere in
the statute?
Mr. Comey. I don't.
Mr. Buck. Okay. And that would indicate to you that there
is a lower threshold for intent?
Mr. Comey. No, it wouldn't.
Mr. Buck. Why?
Mr. Comey. Because we often, as I understand the Justice
Department's practice and judicial practice, will impute to any
criminal statute at that level with a knowingly also
requirement that you know that you're involved in criminal
activity of some sort. A general mens rea requirement.
Mr. Buck. And you would apply that same standard to
environmental crimes?
Mr. Comey. No. If it specifically says it's a negligence-
based crime, I don't think a judge would impute that.
Mr. Buck. But Congress specifically omitted the word
``willfully'' from this statute. And yet you are implying the
world ``willfully'' in the statue. Is that fair?
Mr. Comey. That's fair.
Mr. Buck. Okay. So what the statute does say is knowingly
removes such materials without authority. Is it fair that she
knew that she didn't have authority to have this server in her
basement?
Mr. Comey. Yes. That's true.
Mr. Buck. And she knew that she was receiving materials,
classified information, in the emails that she received on her
BlackBerry and other devices?
Mr. Comey. I can't answer--I'm hesitating as a prosecutor
because it's always--to what level of proof? I do not believe
there's evidence beyond a reasonable doubt that she knew she
was receiving classified information in violation of the
requirements.
Mr. Buck. But that's not my question. My question, in
fairness, is did she know that she was receiving information on
the servers at her location?
Mr. Comey. Oh, I'm sorry. Of course. Yes. She knew she was
using her email system.
Mr. Buck. And as Secretary of State, she also knew that she
would be receiving classified information.
Mr. Comey. Yes. In general.
Mr. Buck. Okay. And did she then have the intent to retain
such material at an unauthorized location? She retained the
material that she received as Secretary of State at her server
in her basement and that was unauthorized?
Mr. Comey. You're asking me did she have the--and I'm going
to ask you the burden of proof question in a second. But did
she have the intent to retain classified information on the
server, or just to retain any information on the server?
Mr. Buck. Well, we've already established that she knew, as
Secretary of State, that she was going to receive classified
information in her emails. And so did she retain such
information that she received as Secretary of State on her
servers in her basement?
Mr. Comey. She did, in fact. There is, in my view, not
evidence beyond certainly probable cause. There's not evidence
beyond a reasonable doubt that she knew she was receiving
classified information, or that she intended to retain it on
her server. There's evidence of that. But when I said there's
not clear evidence of intent, that's what I meant. I could not,
even if the Department of Justice would bring that case, I
could not prove beyond a reasonable doubt those two elements.
Mr. Buck. Thank you very much.
Chairman Chaffetz. Thank the gentleman. We'll now go to the
gentlewoman from Illinois, Ms. Duckworth, for 5 minutes.
Ms. Duckworth. Thank you, Mr. Chairman. When I first
entered Congress 3 years ago, like many freshman members, I,
unlike many freshman members, I actually sought out this
committee. I wanted to be on this committee because I wanted to
tackle the challenges of good government, like working to
eliminate improper payments or prevent wasteful programs,
duplication. Before I joined Congress, I had the privilege of
serving in the Army for 23 years. And I, you know, and as I
tackled those challenges and in the challenges of helping
reduce veterans' homelessness, I witnessed firsthand the real-
world importance of improving and streamlining government
operations. How even the best policies in the world will not
work without proper implementation.
And so when it comes to implementing true and lasting
reforms that will make sure the electronic records and other
records and the history of our great Nation are preserved for
future generations, I've done my best to approach this goal
seriously. I'm focused on making sure that our Nation sustains
a long-term commitment to modernizing our Federal records
keeping system, from improving the laws governing what needs to
be collected, to ensuring our civil servants across government
have the necessary tools to achieve what should be nonpartisan
and a shared goal.
With respect to examining the tough lessons learned from
numerous recordkeeping incidents that our committee has dealt
with, which transcend any one agency or any single
administration, my mission is clear: Make sure that we here in
Congress move beyond partisan politics and engage in the
serious hard work of ensuring that the laws written in an era
of pen and paper are overhauled to meet the digital challenges
of the 21st century.
Director Comey, the Office of Management and Budget and the
National Archives and Records Administration released a
memorandum known as the Managing Government Records Directive
in 2012. And this directive states, and I quote, ``By December
31, 2016, Federal agencies will manage both permanent and
temporary email records in an accessible electronic format.
Federal agencies must manage all email records in an electronic
format. Email records must be retained in an appropriate
electronic system that supports records management and
litigation requirements which may include preservation-in-place
models, including the capability to identify, retrieve, and
retain the records as long as they are needed.''
As a Director of a Bureau who deals with sensitive
information on a daily basis, do you believe that this
directive is necessary and attainable for agencies across the
board within that 4-year timeframe from August 2012 to December
2016.
Mr. Comey. I don't know enough to say both. I can say it's
certainly necessary. I don't know whether it's achievable.
Ms. Duckworth. Okay. Are you familiar with the Capstone
Approach? That's the Federal--it's approach that says that
Federal agencies should save all emails for select senior level
employees, and that the emails of other employees would be
archived for a temporary period set by the agency so that
senior employees' emails are kept forever and those by other
lower level employees are actually archived for a short period,
a shorter period.
Mr. Comey. I'm aware generally. I know what applies to me
and when I was Deputy Attorney General in the Bush
Administration.
Ms. Duckworth. Yes. In fact, I understand that the FBI is
currently actively using this approach, according to the
agency's senior agency official for records--Office for Records
Management fiscal year 2015 annual report. My understanding is
the Capstone Approach is aimed at streamlining the
recordkeeping process for emails and reducing the volume of
records that an agency has to maintain. Nearly all agencies
will be required to comprehensively modernize their approach to
managing Federal records in the near future. As the head of a
component agency, Director Comey, within the Department of
Justice, which appears to be a leader in adopting the
innovative Capstone Approach across the agency, would you agree
that with respect to instituting foundational reforms that will
strengthen records preservation, the Capstone Approach used by
DOJ should be accelerated and wrote out across the Federal
Government?
Mr. Comey. I think we're doing it in a pretty good way. I
don't know--I'm not an expert enough to say whether everybody
should do it the way we do it, honestly.
Ms. Duckworth. Are you satisfied with the way that you're
doing it?
Mr. Comey. I am, but I don't want to sound overconfident,
because I'm sure there's a way we can do it better. But I think
we're doing it in a pretty good way.
Ms. Duckworth. Do you have any one person within the FBI
that continually reviews the--your records keeping? And also do
they report directly to you? As well as is there periodic
review of how you're implementing this process?
Mr. Comey. Yes. We have an entire division devoted to
records management. That assistant director reports up to the
deputy director, who reports to me. We have--it's an enormous
operation, as you might imagine, requiring constant training.
And so that's what I mean when I say I think we're doing it in
a pretty good way. And we have record-marking tools, we prompt
with dialogue boxes requiring employees to make a decision
what's the nature of this record you're creating now and where
should it be stored. So I think we're doing it in a pretty good
way. That's why I say that.
Ms. Duckworth. Have you seen that in any of the other
agencies that you have interacted with, or have you had a
chance, an occasion to look at what some of the other agencies
are doing with their sensitive and classified information? Are
they following the same technique as you're doing in the FBI?
Mr. Comey. I don't know enough to say, I personally.
Ms. Duckworth. Okay.
I am out of time, but thank you.
Mr. Comey. Okay
Chairman Chaffetz. I thank the gentlewoman.
We'll now recognize the gentleman from Michigan, Mr.
Walberg, for 5 minutes.
Mr. Walberg. I thank the chairman.
And thank you, Director Comey, for being here.
Mr. Chairman, thank you for holding this hearing.
And, Director Comey, for making it very clear that you
believe we've done this respectfully, with good intention. And
I wish some of my colleagues that had instructed us on our
intent were here. They have a great ability to understand
intent better than, I guess, the Director of the FBI.
But it is an intent that's important here, that we
understand we are Oversight and Government Reform Committee.
And if indeed the tools aren't there to make sure that our
country is secure and that officials at the highest levels in
our land don't have the understanding on what it takes to keep
our country secure, that we do the necessary government reform
to put laws in place that will be effective and will meet the
needs of distinguished agencies and important agencies like the
FBI.
So thank you, Mr. Chairman, for doing this hearing. It's
our responsibility to do oversight and reform as necessary.
Going back, Director Comey, to paraphrase the Espionage
Act, people in the Seventh District of Michigan understand it
from this perspective and common sense, what it says, that
whoever being entrusted with information related to national
defense, through gross negligence permits the information to be
removed from its proper place in violation of their trust,
shall be fined or imprisoned under the statute.
There doesn't seem to be a double standard there. It
doesn't express intent. You've explained your understanding of
why intent is needed, and we may agree or disagree on that, but
the general public looking at that statute says it's pretty
clear.
The question I would ask, Director Comey, what's your
definition of extremely careless, if you could go through that?
Mr. Comey. I intended it as a commonsense term. It's kind
of one those kind of you know it when you see it sort of
things. Somebody who is--should know better, someone who is
demonstrating a lack of care that strikes me as--there's
ordinary accidents and then there's just real sloppiness. So I
think of that as kind of real sloppiness.
Mr. Walberg. So you stated that you had found 110 emails on
Secretary Clinton's server that were classified at the time
they were sent or received, yet Secretary Clinton has insisted
for over a year publicly that she never sent or received any
classified emails.
The question I have from that, would it be difficult for
any Cabinet-level official, and specifically any Cabinet
official, let alone one who is a former White House resident or
U.S. senator, to determine if information is classified?
Mr. Comey. Would it be difficult for them to----
Mr. Walberg. Would it be difficult?
Mr. Comey. That's hard to answer in the abstract. We're
trying to find the context in which they're hearing it or
seeing it. Obviously, if it's marked, which is why we require
markings, it's easy. It's just too hard to answer, because
there are so many other situations you might encounter it.
Mr. Walberg. But with the training that we receive and
certainly a Secretary of State would receive or someone who
lives in the White House, that goes a little above and beyond
just the commonsense individual out there trying to determine.
Knowing that classified information will be brought and to
remove to an unauthorized site ought to cause a bit of pause
there, shouldn't it?
Mr. Comey. Yeah. And if you're a government official, you
should be attentive to it----
Mr. Walberg. Absolutely.
Mr. Comey. --because you know that the matters you deal
with could involve sensitive information. So sure.
Mr. Walberg. So Secretary Clinton's revised statement that
she never knowingly sent or received any classified information
is probably also untrue?
Mr. Comey. Yeah. I don't want to comment on people's public
statements. We did not find evidence sufficient to establish
that she knew she was sending classified information beyond a
reasonable doubt to meet that--the intent standard. But like I
said, I understand why people are confused by the whole
discussion, I get that. But you know what would be a double
standard? If she were prosecuted for gross negligence.
Mr. Walberg. But your statement on Tuesday said there is
evidence to support a conclusion that any reasonable person in
Secretary Clinton's position should have known that an
unclassified system was no place for that conversation.
Mr. Comey. I stand by that.
Mr. Walberg. And that's very clear.
Mr. Comey. That's the definition of carelessness, of
negligence.
Mr. Walberg. Which happened----
Mr. Comey. Oh, yeah.
Mr. Walberg. --as a result of our Secretary of State's--
former Secretary of State's decisions.
Mr. Comey. Yes.
Mr. Walberg. Is it your statement, then, before this
committee that Secretary Clinton should have known not to send
classified material, and yet she did?
Mr. Comey. Well, certainly she should have known not to
send classified information. As I said, that's the definition
of negligent. I think she was extremely careless, I think she
was negligent. That, I could establish. What we can't establish
is that she acted with the necessary criminal intent.
Mr. Walberg. Do you believe that since the Department of
Justice hasn't used the statute Congress passed, it's invalid?
Mr. Comey. No, I think they're worried that it's invalid,
that it will be challenged on constitutional grounds, which is
why they've used it extraordinarily sparingly in the decades.
Mr. Walberg. Thank you. I yield back.
Chairman Chaffetz. I thank the gentleman.
We'll now go to--we'll now recognize Mr. Lieu of California
for 5 minutes.
Mr. Lieu. Thank you, Mr. Chair.
As I read some of my Republican colleagues' press
statements, and as I sit here today, I am reminded of that
quote from ``Macbeth'': ``full of sound and fury, signifying
nothing.''
I've heard some sound and fury today from members of the
committee, and the reason they largely signify nothing is
because of two fundamental truths that are self-evident. The
first of which, none of the members of this committee can be
objective on this issue. I can't be objective. I've endorsed
Hillary Clinton for President, as have the Democratic members
of this committee. My Republican colleagues can't be objective.
They oppose Hillary Clinton for President.
Which is why we have you. You are a nonpartisan, career
public servant that has served our Nation with distinction and
honor. And not only can you be objective, it is your job to be
objective, to apply the law fairly and equally regardless of
politics.
I think it would be important for the American people to
get a fuller appreciation of your public service. So let me ask
you, before you were FBI Director, how many years did you serve
as a Federal prosecutor?
Mr. Comey. I think 15.
Mr. Lieu. For a period of time, you were at Columbia Law
School as a scholar and you specialized in national security
law. Is that correct?
Mr. Comey. Sometimes I fantasize I still am.
Mr. Lieu. All right. Thank you.
When you served in the Republican administration of
President George W. Bush, you were then the second-highest
ranking member of the Department of Justice. Is that right?
Mr. Comey. Yes. President Bush appointed me to be U.S.
Attorney in Manhattan and then the number two in the Department
of Justice.
Mr. Lieu. When you were confirmed for the FBI Director
position, the vote was 93-1. Is that correct?
Mr. Comey. That's correct.
Mr. Lieu. With that strong bipartisan support, it's not
surprising that Senator Grassley, a Republican, said during
your confirmation, and I quote: ``Director Comey has a
reputation for applying the law fairly and equally regardless
of politics.''
In this case, did you apply the law fairly and equally
regardless of politics?
Mr. Comey. Yes.
Mr. Lieu. Did you get any political interfere reasons from
the White House?
Mr. Comey. None.
Mr. Lieu. Did you get any political interference from the
Hillary Clinton campaign?
Mr. Comey. None.
Mr. Lieu. One of the reasons you're appointed to a fixed
term of 10 years, a very long term, is to help insulate you
from politics. Isn't that right?
Mr. Comey. That's correct.
Mr. Lieu. The second fundamental truth today about this
hearing is that none of the members of this committee have any
idea what we're talking about, because we have not reviewed the
evidence personally in this case.
When I served on Active Duty in the U.S. Air Force in the
1990s, one of my duties was a prosecutor. One of the first
things I learned as a prosecutor is it is unprofessional and
wrong to make allegations based on evidence that one has not
reviewed.
So let me ask you, has any member of this committee, to the
best of your knowledge, reviewed the 30,000 emails at issue in
this case?
Mr. Comey. I don't know. Not to my knowledge.
Mr. Lieu. Has any member of this committee sat through the
multiple witness interviews that the FBI conducted in this
case?
Mr. Comey. No. That I know. No.
Mr. Lieu. Has any member of this committee received any
special information about the files that you kept or other FBI
agents kept on this case?
Mr. Comey. Not to my knowledge.
Mr. Lieu. Now let's do a little bit of math here. One
percent of 30,000 emails would be 300 emails. Is that right?
Mr. Comey. I think that's right.
Mr. Lieu. Thirty emails would be one-tenth of 1 percent,
and three emails would be 1 one hundredth of 1 percent of
30,000, right?
Mr. Comey. I think that's right.
Mr. Lieu. Okay. So of those three emails, 1 one hundredth
of 1 percent of 30,000, they bore these tiny little classified
markings, which is, as you described, a C with parentheses,
correct?
Mr. Comey. Correct.
Mr. Lieu. It is certainly possible that a busy person who
has sent and received over 30,000 emails just might miss this
marking of a C with parentheses. It is possible, correct?
Mr. Comey. Correct.
Mr. Lieu. Okay. So let me now just conclude by stating what
some of my colleagues have, which is, there is just the
strongest whiff of hypocrisy going on here. The American public
might be interested in knowing that all Members of Congress
receive security clearances just for being a Member of
Congress. We get to have private email servers, we get to have
private email accounts, we can use multiple devices, we can
take devices overseas.
And really at the end of the day, when the American people
look at this hearing, they need to ask themselves this
question: Do they trust the biased, partisan politicians on
this committee who are making statements based on evidence we
have not reviewed, or do they trust the distinguished FBI
Director? I would trust the FBI Director.
I yield back.
Chairman Chaffetz. Thank you.
We'll now recognize the gentleman from Florida, Mr. Mica,
for 5 minutes.
Mr. Mica. Thank you, Mr. Chairman.
Director, how long did you investigate this matter?
Mr. Comey. Just about a year.
Mr. Mica. A year. And do you believe you conducted a
legitimate investigation?
Mr. Comey. Yes, sir.
Mr. Mica. And it was a legitimate subject that was
something that you should look into, you had that
responsibility. Is that correct?
Mr. Comey. Yes.
Mr. Mica. We have a responsibility to hear from you on the
action that you took. This weekend--well, tomorrow we'll go
back to our districts, and we have to explain people, I'll be
at a couple of cafes where I see folks, in meetings, and
they're going to ask a lot of questions about what took place.
Have you seen the Broadway production ``Hamilton''?
Mr. Comey. Not yet. I'm hoping to.
Mr. Mica. I haven't either, but I understand it won the
choreography Tony Award. I think you and others know that.
The problem I have in explaining to my constituents is
what's come down, it almost looks like choreography. Let me
just go over it real quickly with you.
Last Tuesday, not this week, 1 week ago, former President
Clinton meets with the Attorney General in Phoenix. The next
Friday, last Friday, Mrs. Lynch, the AG, says she is going to
defer to the FBI on whatever you came up with. On Saturday
morning, I saw the vans pull up, this is this past Saturday,
and you questioned Secretary Clinton for 3 hours. Is that--I
guess that's correct?
Mr. Comey. Yeah. Three and a half.
Mr. Mica. Okay. And then on Tuesday morning, the morning
after July Fourth, we watched in our office, I had my interns,
I said, ``Come in, we've got the FBI Director, let's hear what
he has to say,'' we're all kind of startled, and you basically
said you were going to recommend not to prosecute, correct?
Mr. Comey. Uh-huh. Yes, sir.
Mr. Mica. And then Tuesday, well, we had President Obama
and Secretary Clinton arrive in Charlotte at 2 o'clock, and
shortly thereafter we had the Attorney General is closing the
case.
This is rapid fire. I mean, now, my folks think that
there's something fishy about this. I'm not a conspiracy
theorist, but there are a lot of questions on how this came
down. I have questions about how this came down.
Did you personally interview the Secretary on Saturday
morning?
Mr. Comey. I didn't personally, no.
Mr. Mica. And how many agents did?
Mr. Comey. I think we had five or six in the room.
Mr. Mica. Did you talk to all of those agents after the
interview?
Mr. Comey. I did not speak to all of them, no.
Mr. Mica. Did she testify or talk to them under oath?
Mr. Comey. No.
Mr. Mica. She did not. Well, that's a problem. But----
Mr. Comey. It's still a crime to lie to us.
Mr. Mica. I know it is. Do you have a transcript of that--
that----
Mr. Comey. No. We don't record our----
Mr. Mica. Do you have a 302, I guess it's called, analysis?
Mr. Comey. I do. I don't have it with me, but I do.
Mr. Mica. Did you read it?
Mr. Comey. Yes.
Mr. Mica. You did. Can we get a copy of it since the case
is closed?
Mr. Comey. I don't know the answer to that.
Mr. Mica. I would like a copy of it provided to the
committee.
I would like also for the last 30 days, any communications
between you or any agent or any person in the FBI with the
Attorney General or those in authority in the Department of
Justice on this matter. Could you provide us with that?
Mr. Comey. We'll provide you with whatever we can under the
law and under our policy. It would actually be easy in my case.
Mr. Mica. You see, the problem that I have, though, is I
have to go back and report to people what took place.
Mr. Comey. Sure.
Mr. Mica. Now, did you write the statement that you gave on
Tuesday?
Mr. Comey. Yes.
Mr. Mica. You did. And did you write--and you said you
didn't talk to all of the agents. But all of the agents, did
they meet with you? And then is that the group that said that
we all vote to not recommend prosecution?
Mr. Comey. Well, yeah, I did not meet with all of the
agents. I've met with--I guess I've met--I've with all of them
at various times.
Mr. Mica. But we're getting the word that it was, like,
unanimous out of every--out of FBI that we don't prosecute.
Mr. Comey. What's your question, Congressman?
Mr. Mica. Well, again, I want to know who counseled you.
You read their summary, okay. She was not under oath. And it
appears--I mean, members have cited here where she lied or
misled to Congress, which will lead now to the next step of our
possibly giving you a referral on this matter. You're aware of
that?
Mr. Comey. Yes. Someone mentioned that earlier.
Mr. Mica. And that probably will happen.
Thank you for shedding some light on what took place.
Mr. Comey. Can I, Mr. Chairman----
Chairman Chaffetz. Sure. Go ahead.
Mr. Comey. --can I respond just very briefly?
I hope what you'll tell the folks in the cafe is: Look me
in the eye and listen to what I'm about to say. I did not
coordinate that with anyone. The White House, the Department of
Justice, nobody outside the FBI family had any idea what I was
about to say. I say that under oath. I stand by that. There was
no coordination. There was an insinuation in what you were
saying that I don't mean to get strong in responding, but I
want to make sure I was definitive about that.
Thank you, sir.
Chairman Chaffetz. Thank you.
We'll now recognize the gentlewoman from the Virgin
Islands, Ms. Plaskett, for 5 minutes.
Ms. Plaskett. Thank you, Mr. Chairman.
And thank you all for being here.
Director Comey, I would rather be here talking with you
about the FBI's investigations and their resources to those
individuals who are acting under color of law who have
apparently committed egregious violations in the killings that
we've seen in the recent days.
But instead, Mr. Chairman, I'm sitting here and I've
listened patiently as a number of individuals have gone on
national TV and made accusations against Director Comey, both
directly and indirectly, because he recommended against
prosecution based upon facts.
I've listened just very recently here in this hearing as my
esteemed colleague from Florida tries to insinuate the
condensation of an investigation into 1 week that actually
occurred over a much, much longer period of time, and using
that condensation and conspiracy theory to say that there's
some orchestration. And that they have accused Mr. Director
Comey of basing his decision on political considerations rather
than facts. I've heard chuckles and laughter here in this
hearing, and I don't think there's anything to be smiling or
laughing about.
Because I want to say something to those individuals who
are chuckling and laughing and making attacks on Director Comey
for doing his job: You have no idea who you're talking about.
Your accusations are completely off base, utterly offensive to
us as American people.
I know this because I've had the honor of working for
Director Comey during my own service at the Department of
Justice. From 2002 to 2004, I served as senior counsel to the
deputy attorney general. I worked with both the deputy attorney
general, Larry Thompson, and Deputy Attorney General Jim Comey
when he became deputy as a staff attorney. And I know from my
own experiences that Director Comey is a man of impeccable
integrity.
There are very few times when you as an attorney or as an
individual can work with individuals or a gentleman who is
completely that, someone who is above the fray. Anyone who
suggests or implies that he made his recommendations on
anything but the facts simply does not know James Comey.
We've used the term ``no reasonable prosecutor.'' Well, I
know that James Comey doesn't act as what a reasonable
prosecutor would do, because he is the unyielding prosecutor,
he is the prosecutor who does what is politically not expedient
for himself, his staff, but for the law.
And I'm not the only person in this hearing, in this
committee, who has worked with Director Comey or for him.
Representative Gowdy himself also commended Director Comey, and
he said this, and I quote: ``I used to work with him. I think
Comey is doing exactly what you want. He's doing a serious
investigation behind closed doors, away from the media's
attention, and I'm going to trust him until I see a reason not
to.''
Representative Gowdy referred to Director Comey as
honorable and apolitical. He said this is exactly what you want
in law enforcement. Well, it's exactly what you want in law
enforcement until the decision is not the decision that you
want.
Director Comey, Chairman Chaffetz, as it was said by one of
my colleagues, went on television and accused you of making,
quote, ``a political calculation.'' He said that your
recommendation was nothing more than, quote, ``a political
determination in the end.''
I'm going to ask you, how do you respond to that? Were your
actions in any way, shape, or form governed by political
consideration?
Mr. Comey. No, not in any way.
Ms. Plaskett. And did anyone with Secretary Clinton's
campaign or the administration influence your recommendation
for political reasons?
Mr. Comey. No. They didn't influence it in any way.
Ms. Plaskett. I'm going to take you at your word, because I
know, and those who will go through the record of your long
tenure as a career prosecutor and they'll look at examples,
will see that you have taken decisions that have not been that
which your supervisors, which the President, which others have
wanted you to take.
As a Federal prosecutor who believed that the facts must
come above politics, I'm thankful that we have you. And,
Director Comey, I want to thank you for your service to our
country, and you have our support.
We would like to see as much documents. And I'm grateful
that you want to keep the transparency so that the American
public can understand the difference between what they hear in
the media and the elements of a crime necessary for criminal
prosecution.
Thank you.
Chairman Chaffetz. I thank the gentlewoman.
We'll now recognize the gentleman from Texas, Mr.
Farenthold, for 5 minutes.
Mr. Farenthold. Thank you very much, Director Comey.
I want to talk a little bit about cybersecurity. The State
Department's inspector general report detailed instances of
multiple attacks on Secretary Clinton's computer as well as her
replying to suspicious email from the personal account of the
Undersecretary of State.
Director, you said that hostile actors successfully gained
access to the commercial email accounts of people Secretary
Clinton regularly communicated with. In the case of the
Romanian hacker, Guccifer, accessing Sidney Blumenthal's
account. And, you know, that's been public for some time.
During your investigation, were there other people in the
State Department or that regularly communicated with Secretary
Clinton that you can confirm were successfully hacked?
Mr. Comey. Yes.
Mr. Farenthold. And were these folks that regularly
communicated with the Secretary?
Mr. Comey. Yes.
Mr. Farenthold. And were you able to conclude definitively
that the attempted hacks referenced in the IG report were not
successful?
Mr. Comey. We were not able to conclude that they were
successful. I think that's the best way to say it.
Mr. Farenthold. All right. So while you said that given the
nature of Clinton's server, you would be unlikely to see
evidence one way or the other of whether or not it had been
successfully hacked, how many unsuccessful attempts did you
uncover? Did you find any there?
Mr. Comey. There were unsuccessful attempts. I don't know
the number off the top of my head.
Mr. Farenthold. Do you have an idea, were they from foreign
governments? Where did they come from?
Mr. Comey. I want to be careful what I say in an open
setting, and so I--we can give you that information, but I
don't want to give any foreign governments knowledge of what I
know. So there----
Mr. Farenthold. All right. But would you be so far as to
say they probably weren't American high school students fooling
around?
Mr. Comey. Correct. It was not limited to----
Mr. Farenthold. All right.
Mr. Comey. --criminal activity.
Mr. Farenthold. During your investigation, did you or
anyone in the FBI interview the hacker Guccifer?
Mr. Comey. Yes.
Mr. Farenthold. And he claimed he gained access to Sid
Blumenthal's email account and traced him back to Clinton's
private server. Can you confirm that Guccifer never gained
access to her server?
Mr. Comey. Yeah, he did not. He admitted that was a lie.
Mr. Farenthold. All right. Well, at least that's good to
hear.
All right. Section 793 of Title 18 of the United States
Code makes it a crime to allow classified information to be
stolen through gross negligence. Were you to discover that
hostile actors had actually gotten into Secretary Clinton's
email, would that have changed your recommendation with respect
to prosecuting her?
Mr. Comey. Unlikely, although we didn't consider that
question, because we didn't have those facts.
Mr. Farenthold. All right. I want to go back to the
question of intent real quick for just a second. I'm a
recovering attorney, it's been decades since I actually
practiced law, but you kept referring to she had to know it was
illegal to have the requisite criminal intent. I was always
taught in law school, and I don't know where this changed, that
ignorance of the law was no excuse. If I'm driving along at 45
miles an hour and didn't see the 35-mile-an-hour speed limit, I
was still intentionally speeding even though I didn't know it.
Now, I might not have had the requisite criminal intent if
maybe my accelerator were jammed or something like that, but
even though I didn't know the law was 35, I was driving 45, I'm
going to get a ticket and I'm probably going to be prosecuted
for that.
So how can you say ignorance of the law is an excuse in
Mrs. Clinton's case?
Mr. Comey. Well, the comparison to petty offenses, I don't
think is useful. But the question of ignorance of the law is no
excuse. But here's the distinction. You have to have general
criminal intent. You don't need to know what particular statute
you're violating, but you must be aware of the generally
wrongful nature of your conduct. That's what----
Mr. Farenthold. Now, so Congress, when they enacted that
statute, said gross negligence.
Mr. Comey. Yep.
Mr. Farenthold. That doesn't say intent. So what are we
going to have to enact to get you guys to prosecute something
based on negligence or gross negligence? So are we going to
have to add, ``And, oh, by the way, we don't mean you--we
really do mean you don't have to have intent there''?
Mr. Comey. Well, that's a conversation for you all to have
with the Department of Justice, but it would have to be
something more than the statute enacted in 1917, because for 99
years they've been very worried about its constitutionality.
Mr. Farenthold. All right. Well, I think that's something
this committee and Congress as a whole, the Judiciary Committee
that Mr. Chaffetz and I also sit on, will be looking at it.
And I was on television this morning, and I just want to
relay a question that I received from a caller into that
television commercial, and it's just real simple. Why should
any person follow the law if our leaders don't?
And we can argue about intent or not, but you laid out the
fact that she basically broke the law but you couldn't prove
intent. Maybe I'm putting words in your mouth, but I do want to
know why any person should follow the law if our leaders don't
have to. Maybe that's rhetorical, but I'll give you an
opportunity to comment on that.
Mr. Comey. Yeah. That's a question I'm no more qualified to
answer than any American citizen. It's an important question.
In terms of my work in my world, my folks would not be--one
of my employees would not be prosecuted for this. They would
face consequences for this. So the notion that it's either
prosecute or you walk around, you know, smiling all day long is
just not true for those people who work for the government. The
broader question is one for a democracy to answer, it's not for
me.
Mr. Farenthold. And I guess the ultimate decision as to
whether or not Mrs. Clinton works in government or not is not
in--is in everybody's hands.
Chairman Chaffetz. I thank the gentleman.
Mr. Farenthold. Yield back.
Chairman Chaffetz. We'll now recognize the gentleman from
Pennsylvania, Mr. Boyle, for 5 minutes.
Mr. Boyle. Thank you, Mr. Chairman.
And thank you, Director Comey, for appearing, especially on
such short notice.
I want to share with you actually something a friend of
mine was expressing when watching your press conference 48
hours ago, and this is someone who's not in any way political;
in fact, probably typical of most American citizens today in
being depressed about the remarkable level of cynicism we have
in our government, but specifically those of us who are in
government make decisions first and foremost because of the
party hat we wear and not necessarily based on the facts and
the evidence.
And he texted me after watching your 15-minute
presentation: Oh, it's nice to see a real pro. You can tell
that he would make the decision based on the facts and the
evidence and not what party he wears.
I think that's so important if we're ever going to get to a
place in this country where we restore some of the faith that
we had in government. If you looked at the poll numbers from
the 1940s and 1950s and you look at faith in government among
the American public, and you look at those numbers today, the
numbers today are anemic, they're nowhere near the levels that
they were decades ago.
So for that, I want to say thank you. And I think that many
citizens have the same impression.
When I first met you a couple years ago at a weekend
session in Colonial Williamsburg, you might remember that we
had a discussion about my biggest concern, frankly, facing the
security of the American people, and that is the possibility of
a lone wolf terrorist, someone becoming self-radicalized and
acting based on that. We had an exchange that I'll keep
private, but I think I can characterize that you share my
concern.
I'm just thinking, for the last 2-1/2 hours that we've been
here, we've had the FBI Director, asking questions on this
matter, when, frankly, I would have much rather your time spent
dealing with the potential of lone wolf terrorists and other
coordinated attacks that we face.
But since this is the Oversight and Government Reform
Committee, trying to find something that we can now take and
possibly use in a systemic way, not just the celebrity of
Secretary Clinton and the fact, because it involves her, let's
face it, that's the reason why we're here, but I want to try to
take something out of this very expensive and long
investigation and try to use it in a productive way toward
reforming government that possibly we can get something good
out of it.
So toward that end, I'm really concerned about this issue
of up-classification, because it seems as if, and I was not
aware of this until the investigation, there is quite a strong
discrepancy between not just former Secretary Clinton, but even
former Secretary Powell, what he thinks should be classified,
and then what is classified after the fact. And I think you--if
I'm right, there were some 2,000 emails that were up-
classified? I was wondering if you could speak to that.
Mr. Comey. Yeah. It actually was not a concept I was real
familiar with before this. It's the notion that something might
not have been classified at the time, but that in hindsight, as
a government agency considers releasing it, they raise the
classification level to protect it because it would--it's a
candid assessment of a foreign leader or something like that.
I think it is largely a State Department thing, because
their diplomats will often be conversing in an unclassified
way, that when they look at releasing it in response to a FOIA
request, they think it ought to be protected in some fashion.
But, honestly, I kind of pushed those to the side.
Mr. Boyle. Right.
Mr. Comey. The important thing here was what was classified
at the time, that's what matters.
Mr. Boyle. Right. And that for a law enforcement official
matters. But I'm just wondering if you could share with us any
of your impressions about a system that exists where there is
such gray area and discrepancy in what is classified and what's
not, and if you or your agents had any suggestions for us,
either in Government Reform, or I happen to be on the Foreign
Affairs Committee that has oversight of State Department.
Do you believe that this is a matter that we should take up
where there is such discrepancy on what's classified, what's
not classified? I think of one example. Ambassador Ross put
something in a book that wasn't classified, and then it was up-
classified after the book came out. But what good does that do
us as a country in terms of trying to protect the intelligence
of the United States.
Mr. Comey. Yeah. I'm not an expert in this up-
classification business, but I do suspect it would be a fertile
ground for trying to figure out whether there are ways to do it
in a more predictable, reliable way.
Mr. Boyle. Yeah. Well, thank you again for your service.
And I yield back my time.
Chairman Chaffetz. I thank the gentleman.
We'll now recognize the gentleman from Georgia, Mr. Hice,
for 5 minutes.
Mr. Hice. Director Comey, your statement on Tuesday clearly
showed that Secretary Clinton not only was extremely careless
in handling classified information, but that also any
reasonable person should have known better, and that also, in
doing so, she put our national security at risk with her
reckless behavior.
So it seems to me that the American people are only left,
based on your assessment, with just a few options. Either
Secretary Clinton herself is not a reasonable person, or she is
someone who purposefully, willfully exhibited disregard for the
law, or she is someone who sees herself as above the law.
And to muddy the water even further, after listening to you
lay out the facts of the investigation, much of what you said
directly contradicted her in previous statements that she had
made.
I think it's all this compiled, putting the--connecting the
dots that so many American people are irate, that after all of
this there was not a recommendation for Secretary Clinton to be
prosecuted.
Now, I do greatly appreciate the fact that you came out
with much more information on this than you would have in other
cases, and I think that was the right the thing to do.
Undeniably, this is not a typical case. This is something of
great public interest, obviously the subject of the
investigation, former Secretary of State, former senator, and
all those things that we have talked about, former first lady,
and so forth.
And in addition to this, her husband, who happens to be the
former President of the United States, is meeting privately
with the Attorney General right before all of this interview
takes place. Obviously, this is very suspicious, just the
optics of it all. And at the same time that you're coming out,
or more or less the same time that you are announcing the
decision, Secretary Clinton is flying around in Air Force One
with the President doing a campaign event.
I mean, there's nothing about this case that's ordinary,
there's nothing about the subject that's ordinary.
So let me ask you this, Director: Did Secretary Clinton in
fact, comply with the Department's policies or the Federal
Records Act?
Mr. Comey. I don't think so. I know you have the State
inspector general here, who's more of an expert on all the
Department's policies, but at least in some respects, no.
Mr. Hice. So keeping the servers at home and all these
types of things, obviously, is not in compliance with the
Department's policies?
Mr. Comey. Yes. And I've read the inspector general's
report on that. That's part of the reason I can answer that
part with some confidence.
Mr. Hice. Okay. And yet she said publicly that she fully
complied. So there again is another issue.
If you had the same set of facts but a different subject, a
different individual involved, say, just an average, ordinary
State Department employee or an anonymous contractor, what
would have been the outcome?
Mr. Comey. I'm highly confident there would be no criminal
prosecution no matter who it was. There would be some range of
discipline. They might get fired, they might lose their
clearance, they might get suspended for 30 days. There would be
some discipline, maybe just a reprimand, I doubt it, I think it
would be higher on the discipline spectrum, but some sort of
discipline.
Mr. Hice. So is it your opinion that there should likewise
be some discipline in this case?
Mr. Comey. That's not for me to say. I can talk about what
would happen if it was a government employee under my
responsibility.
Mr. Hice. Well, then, what you're laying out is that there
is a double standard. For someone else, a different subject, an
anonymous contractor or someone at the State Department, there
would absolutely be discipline, but because of who the subject
is, you're not willing to say there should be discipline. So
there's--again, this whole issue, this is what the American
people are so upset about.
Let me say that, when you stated that no reasonable
prosecutor would pursue this case, is that because the subject
of this investigation was unique?
Mr. Comey. No. Huh-uh. There's no double standard there.
And there's no double standard, either, in the sense that if it
was John Doe, a former government employee, you'd be in the
same boat. We wouldn't have any reach on the guy. He wouldn't
be prosecuted.
Mr. Hice. But he would have some discipline?
Mr. Comey. Well, not if he had left government service.
Mr. Hice. Had they lied about having servers, had they lied
about sending and receiving classified emails, had they lied
about not deleting those emails to the public, had they lied
about not having any marked classified, the statements are
clearly documented, and you're saying that an average person
would experience discipline, by your own words, but Secretary
Clinton does not deserve to be disciplined?
Mr. Gowdy. [Presiding.] The gentleman's time has expired,
but the Director may answer if he wants to.
Mr. Comey. An average employee still in government service
would be subject to a disciplinary process. Now, if they'd
left, you'd be in the same boat.
Mr. Gowdy. The gentleman from Georgia yields back.
The chair will now recognize the gentleman from Vermont,
Mr. Welch.
Mr. Welch. Thank you very much, Mr. Chairman.
Thank you, Director Comey.
The prosecutor has really awesome power. The power to
prosecute is the power to destroy and it has to be used with
restraint. You obviously know that. You're being asked to--you
had to exercise that responsibility in the context of a very
contested Presidential campaign, enormous political pressure.
You had to do it once before. And I go back to that evening
of March 10, 2004, when the question was whether a surveillance
program authorized after 9/11 by President Bush was going to
continue despite the fact that the Justice Department had come
to an independent legal conclusion that it actually violated
our constitutional rights.
That's a tough call, because America was insecure, the
President was asserting his authority as Commander in Chief to
take an action that was intended to protect the American
people, but you and others in the Justice Department felt that,
whatever that justification was, the Constitution came first
and you were going to defend it.
And as I understand it, you were on your way home and had
to divert your drivers to go back to the hospital to be at the
bedside of a very sick at that time Attorney General, and you
had to stand in the way of the White House chief of staff and
the White House counsel.
I'm not sure that was a popular decision or one that you
could have confidently thought would be a career booster, but I
want to thank you for that.
Fast forward, we've got this situation of a highly
contested political campaign. And there is substantive concern
it's legitimate by Democrats and Republicans for independent
political reasons, but you had to make a call that was based
upon your view of the law, not your view of how it would affect
the outcome of who would be the next Commander in Chief.
Others have asked this for you, but I think I'm close to
the end. I want to give you a chance to just answer, I think,
the bottom line questions here. Had you, after your thorough
investigation, found evidence that suggested that criminal
conduct occurred, is there anything, anything or anyone, that
could have held you back from deciding to prosecute?
Mr. Comey. No. I mean, I don't have the power to decide
prosecution, but I'd have worked very hard to make sure that a
righteous case was prosecuted.
Mr. Welch. And you would have make that recommendation to
the Attorney General?
Mr. Comey. Yes.
Mr. Welch. Was there any interference, implicit or
explicit, from the President of the United States or anyone
acting on his behalf to influence the outcome of your
investigation and the recommendation that you made?
Mr. Comey. No.
Mr. Welch. Was there anyone in the Hillary Clinton campaign
or Hillary Clinton herself who did anything, directly or
indirectly, to attempt to influence the conclusion that you
made to recommend no prosecution?
Mr. Comey. No.
Mr. Welch. At this moment, after having been through
several hours of questioning, is there anything in the
questions you've heard that would cause you to change the
decision that you made?
Mr. Comey. No. I don't--you know, I don't love this, but
it's really important to do, and I understand the questions and
concerns. I just want the American people to know, we really
did this the right way. You can disagree with us, but you
cannot fairly say we did it in any kind of political way. We
don't carry water for anybody. We're trying to do what the
right thing is.
Mr. Welch. Well, I very much appreciate that, and I very
much appreciate that it takes strong people of independent
judgment to make certain that we continue to be a Nation of
laws.
Mr. Chairman, just one final thing, and I'll yield to Mr.
Cummings. We've got a political debate where a lot of these
issues that are going to be--that have been raised are going to
be fought in the campaign, and we've got Secretary Clinton
who's going to have to defend what she did. She's acknowledged
it's a mistake. We've got that great constitutional scholar,
Mr. Trump, who's going to be making his case about why this was
wrong. But that's politics, that's not really having anything
to do with the independence of prosecutorial discretion.
Thank you, Director Comey.
And I yield whatever additional time I have to Mr.
Cummings.
Chairman Chaffetz. I think the gentleman's going to yield
back. I've spoken with Mr. Cummings.
We'll now recognize the gentleman from Kentucky, Mr.
Massie, for 5 minutes.
Mr. Massie. Thank you, Mr. Chairman.
And thank you, Director Comey, for showing up and your
willingness to be transparent and answer a lot of unanswered
questions.
A few hours before this hearing started I went onto social
media and asked people to submit questions, and I've got over
500 questions, and I don't think I'll get to ask them all in
these 5 minutes, but I'm sure you'll be willing to answer them.
One of the common things that I came in here to ask, but I
realized it's not the right question now, is what's the
difference between extremely careless and gross negligence. But
in the process of this hearing, what I'm hearing you say is,
that's not what we--that's not what your reluctance is based
on, it's not based on--the reluctance to prosecute, by the way.
Your reluctance to recommend a prosecution or an indictment is
not based on parsing those words, it's based on your concern
for this statute, with this statute, is that correct, from your
opening statement?
Mr. Comey. It's broader than that, actually, the statute,
and it fits within a framework of fairness and also my
understanding of what the Department of Justice has prosecuted
over the last 50 years.
Mr. Massie. So when you say a reasonable prosecutor
wouldn't take this case, it's not because you don't think she
made--that she lied in public or that maybe she was negligent,
it's because you have concern with the prosecutorial history of
the statute?
Mr. Comey. And not just that statute, but also 1924, which
is the misdemeanor. I also don't see cases that were prosecuted
on facts like these. So both, both 793 and 1924.
Mr. Massie. But you did find one prosecution. And has it
been overturned by the Supreme Court?
Mr. Comey. No. There was one time it was charged in an
espionage case, and the guy ended up pleading guilty to a
different offense, so it was never adjudicated.
Mr. Massie. So, you know, so that your concern is with the
negligence threshold, that you think it requires mens rea, or
knowing the crime. But in all 50 States isn't there a negligent
homicide statute and aren't people prosecuted for that all the
time, and doesn't the Supreme Court and all the courts below
that uphold those prosecutions, just on the basis of
negligence?
Mr. Comey. I don't know whether all 50 States. I think
negligent homicide and manslaughter statutes are relatively
common.
Mr. Massie. Okay. So but don't all 50 States have something
like that, and aren't those sustained in the upper courts,
those convictions?
Mr. Comey. I don't know whether all 50 States have
something like that. But, again, I think it's very common and I
think those are sustained.
Mr. Massie. So don't we have a history of--you know, you
implied that the American judicial system doesn't have a
history of convicting somebody for negligence, but don't we in
other domains of justice?
Mr. Comey. We do. I know the Federal system best. There are
very few in the Federal system. They're mostly, as we talked
about earlier, in the environmental and Food and Drug
Administration area.
Mr. Massie. Okay. Thank you.
Now, I want to ask another question that's come up here.
You've basically related to us that this information, this top
secret or classified information, got into these email chains
because of conversations people were having, they were relating
what they heard before in other settings. Is that correct?
Mr. Comey. No. Maybe in some cases, but it was people
having an email conversation about a classified subject.
Mr. Massie. Okay. So they were having an email
conversation, but how in this email conversation did this bore
marking show up? Like, if they're not sophisticated enough, as
you said before, even Hillary Clinton wasn't sophisticated
enough to recognize a bore marking, the C with the parentheses
for confidential or classified, how did--if they weren't that
sophisticated, how did they recreate that bore marking in their
emails when they were having these discussions?
Mr. Comey. Yeah. Somebody--a lot of what ended up on
Secretary Clinton's server were stuff that had been forwarded
up a chain and gets to her from her staff, a lot of that
forwarding, and then she comments sometimes on it.
Someone down in the chain, in typing a paragraph that
summarized something, put a portion marking, C--paren, C paren,
on that paragraph.
Mr. Massie. Can you--doesn't it take a lot of intent to
take a classified document from a setting that's, you know,
authorized and secure to one that's not? Wouldn't it require
intent for somebody to recreate that classification marking in
an unsecure setting?
Mr. Comey. I don't know. It's possible, but also I could--
--
Mr. Massie. I mean, did they accidentally type open
parentheses, C, close parentheses, and indent the paragraph?
Mr. Comey. Oh, no. You wouldn't accidentally type that.
Mr. Massie. Right. Someone----
Mr. Comey. Right.
Mr. Massie. Someone down the chain----
Mr. Comey. Okay.
Mr. Massie. So this is my question, is someone down the
chain being investigated? Because they had the intent, clearly,
if they had the sophistication, which Hillary Clinton, you
insinuate, may have lacked, if they had the sophistication to
know what this bore marking was, they had the--had to have the
intent to recreate it or the intent to cut, copy, paste from a
secure system to an unsecure system. Wouldn't that be correct?
Mr. Comey. Potentially, but we're not--there's not an open
criminal investigation of that person way down the chain at the
State Department.
Mr. Massie. Shouldn't there be?
Mr. Comey. A criminal investigation?
Mr. Massie. An investigation if there's intent, which is
what you--I mean, and I think you may be reasonable in
requiring that threshold, but don't we treat everybody the
same, whether it's at the top of the chain or the bottom of the
chain?
Mr. Comey. Sure. You want to if the conduct is the same.
But we did not criminally investigate whoever started that
chain and put the C on those paragraphs, we didn't.
Mr. Massie. Okay. I would suggest maybe you might want to
do that.
And I will yield back to the chairman.
Chairman Chaffetz. I thank the gentleman.
We'll now recognize the gentlewoman from Michigan, Mrs.
Lawrence, for 5 minutes.
Mrs. Lawrence. Director Comey, how many years have you been
the Director?
Mr. Comey. Two--well, 3 years. I know the exact date count,
I think, at this point.
Mrs. Lawrence. Okay. So how many cases have you
investigated, approximately, that you had to render a decision?
Mr. Comey. The Bureau investigates tens of thousands of
cases. The Director only gets involved in a very small number
of them.
Mrs. Lawrence. So about how many?
Mr. Comey. I think I've been deeply involved in probably 10
to 20.
Mrs. Lawrence. Have you ever been called before Congress on
any of those other decisions?
Mr. Comey. No, this is the first time.
Mrs. Lawrence. Thank you.
There are some Republicans who support you. Not
surprisingly, they're the ones who actually know you.
And I have a letter here and I would like to enter into the
record from Richard Painter, Mr. Chair. He was President Bush's
chief ethics lawyer. And may it be entered into the record?
Chairman Chaffetz. She's asking unanimous consent. Without
objection, so ordered.
Mrs. Lawrence. Mr. Painter refers to Mr. Comey as a man of,
and I quote, a man of the utmost integrity, who calls the shots
as he saw them without regard to political affiliation or
friendship.
He states, and I quote: Throughout the FBI investigation of
Secretary Clinton's email server, I have been convinced that
the Director would supervise the investigation with being
impartial and strict adherence to the law, as well as
prosecutorial precedent.
He also adds: Although I'm aware of very few prosecutions
for carelessness in handling classified information as opposed
to intentional disclosure, I knew that the Director would
recommend prosecution in any and all circumstances where it was
warranted. I cannot think of someone better suited to handle
such a politically sensitive investigation.
Finally, and I quote: I urge all Members of the United
States Congress to stop from inferring in specific decisions,
particularly those involving political allies or opponents.
During my tenure in the White House, there were very
unfortunate allegation that powerful senators sought
politically motivating firing of a United States Attorney.
Whether or not such allegations were true, it is imperative,
and I'm still quoting, that members of the Senate or the House
never again conduct themselves in a manner where such
interference could be suspected.
And I want to be on the record, I wholeheartedly agree with
Mr. Painter.
Director, you have demonstrated yourself, you sat here and
answered the questions. And I would never oppose to finding the
answers to any situation that is directly related to Federal
agencies which we on this committee are responsible for. But I
want to be clear that Congress has no business--no business--
interfering with these types of decisions that are coming in
this--in your responsibility.
These type of attacks are not only inappropriate, but
they're dangerous. They're dangerous because they could have a
chilling effect on the future investigations.
And I asked that question, how long have you been in this
position and how many times have you made decisions and yet
were not pulled in 24 hours before this committee? How many
times? And then we say it's not political.
And you have said repeatedly, regardless of who it was, you
conducted the investigation as required under your
responsibility. And here you have Republicans who are saying
you are an honorable man, and till this day, I have not heard
any complaints of your judgment.
So I sit here today as a Member of Congress on the record
that the slippery slope that we're seeing today in this
hearing, I want every Member to be cautious of what we're
saying, that in America when we have investigations, that we
will allow our own elected Congress and Senate to make this a
political agenda to attack, but only if it's in their agenda.
This goes for Democrats and Republicans. We are not here to do
that.
Thank you, and I yield back my time.
Chairman Chaffetz. I thank the gentlewoman.
We'll now recognize the gentleman from Iowa, Mr. Blum.
Mr. Blum. Thank you, Mr. Chairman.
Thank you, Director Comey, for being here today, and thanks
for hanging in there till every last question is answered.
I'm not a lawyer. That's the good news. I'm a career
businessman. I've spent most of my career operating in the
high-tech industry. And today I've heard words such as common
sense, reasonable person, carelessness, judgment, or lack
thereof. I like these words. I understand these words. I think
the average American does as well. So I'd like to focus on
that.
Last Tuesday, Director Comey, you said, and I quote: ``None
of these emails should have been on any kind of an unclassified
system, but their presence is especially concerning because all
these emails were housed on unclassified personal servers not
even supported by full-time security staff, like those found at
agencies of the United States Government, or even with a
commercial email service such as Gmail.''
Director Comey, my small Iowa business doesn't even use
Gmail for our email, because it's not secure enough. I know
some security experts in the industry. I checked with them. The
going rate to hack into somebody's Gmail account, $129. For
corporate emails, they can be hacked for $500 or less. If you
want to hack into an IP address, it's around $100. And I'm sure
the FBI could probably do it cheaper. This is the going rate.
Director Comey, are you implying in that statement that the
private email servers of Secretary Clinton's were perhaps less
secure than a Gmail account that is used for free by a billion
people around this planet?
Mr. Comey. Yes. And I'm not looking to pick on Gmail. Their
security is actually pretty good. The weakness is in the
individual users.
But, yes, Gmail has full-time security staff and thinks
about patching and logging and protecting their systems in a
way that was not the case here.
Mr. Blum. I'd like to ask you, what kind of judgment--we
talked a lot about judgment today--does this decision to
potentially expose to hackers classified information on an
email service that's less secure than Gmail--your words--what
does that suggest to you? What type of judgment does that
suggest to you?
Mr. Comey. It suggests the kind of carelessness that I
talked about.
Mr. Blum. In August of last year, Secretary Clinton was
asked by Ed Henry of Fox News whether she had wiped her entire
server, meaning did she delete all the emails on her server.
Her response: ``You mean with a cloth?''
March of 2015, during a press conference, Secretary Clinton
assured us her private email server was secure, saying the
server was on private property guarded by the Secret Service.
Now, this would be laughable if it wasn't so serious. I
know, you know, my constituents in eastern Iowa know you don't
need to be a cat burglar to hack into an email server and you
don't need a cloth to wipe a server clean. One would think that
a former United States senator, one would think that a former
secretary of state would know this as well. Would you agree
with that statement?
Mr. Comey. You would think, although as I said before, one
of the things I've learned in this case is that the Secretary
may not have been as sophisticated as people assume. She didn't
have a computer in her office at the State Department, for
example. So I don't think--so I would assume the same thing
about someone who had been a senator and a high-ranking
official. I'm not sure it's a fair assumption in this case.
Mr. Blum. In your opinion, Director Comey, did Secretary
Clinton know that a server could, in fact, be wiped clean
electronically and not with a cloth?
Mr. Comey. Well, I assume that--I don't know.
Mr. Blum. Would you assume she knows that?
Mr. Comey. I would assume that it was a facetious comment
about a cloth, but I don't know. I don't know in particular on
that one.
Mr. Blum. Would you also assume, Director, that Secretary
Clinton knew that a server could be wiped clean electronically,
that it could be hacked electronically, not physically, you
don't need a cat burglar to hack a server? Would you assume--
would it be reasonable to assume she knows that?
Mr. Comey. To some level it would be reasonable, to some
level of understanding.
Mr. Blum. Then, once again, for someone who knew these
things, or we assume to some level she knew these things, what
kind of judgment does the decision to expose classified
material on personal servers suggest to you, what type of
judgment?
Mr. Comey. Well, again, it's not my place to assess
judgment. I talk in terms of a state of mind, negligence in
particular. I think there was carelessness here, and in some
circumstances extreme carelessness.
Mr. Blum. Was her server hacked?
Mr. Comey. I don't know. I can't prove that it was hacked.
Mr. Blum. So that answer says to me it could have been
hacked.
Mr. Comey. Sure. Yeah.
Mr. Blum. And if it was hacked, potentially damaging
material damaging to American secrets, damaging to American
lives, could have been hacked. Could have been exposed,
correct?
Mr. Comey. Yeah.
Mr. Blum. Lives could have been put at risk if that server
was indeed hacked?
Mr. Comey. I'm not prepared to say yes as to that last
piece. That would require me going into in a way I can't here
the nature of the classified information. But there's no doubt
that it would have potentially exposed the information that was
classified. The information was classified because it could
damage the United States of America.
Mr. Blum. So it could have happened. The FBI just isn't
aware?
Mr. Comey. Correct.
Mr. Blum. Thank you very much. Thank you for being here. I
yield back the time I do not have.
Chairman Chaffetz. Thank the gentleman. I now recognize the
gentlelady from New Jersey, Mrs. Watson Coleman, for 5 minutes.
Mrs. Watson Coleman. Thank you. And thank you, Director.
I've got a number of questions. So I'm going to, like, zip
through these.
Mr. Comey. Okay.
Mrs. Watson Coleman. This is a question I'm going to ask
and you, and may not even have the answer to it because you may
not have known this. This is about the classification marking
issue that you've been asked about earlier. According to the
State Department, which addressed this issue yesterday, a
spokesman said that the call sheets appear to bear classified
markings. But this was actually a mistake. To quote,
``Generally speaking, there's a standard process for developing
call sheets for the Secretary of State. Call sheets are often
marked, but it's not untypical at all for them to be marked at
the confidential level prior to a decision by the Secretary
that he or she will make that call. Oftentimes, once it is
clear the Secretary intends to make a call, the Department will
then consider the call sheet SBU, sensitive but unclassified,
or unclassified altogether and then mark it appropriately, and
then prepare it for the Secretary's use and actually marking
the call.''
``The classifications of a call sheet, therefore, is not
necessarily fixed in time and staffers in the Secretary's
office who are involved in preparing and finalizing these call
sheets, they understand that. Given this context, it appears
that markings in the appropriate--in the documents raised in
the media reports were no longer necessary or appropriate at
the time. They were sent as an actual email. Those markings
were human error. They didn't need to be there.'' Did you know
this?
Mr. Comey. No.
Mrs. Watson Coleman. Thank you, Mr. Director. Can you tell
me, based upon your information, has there been, and is there
any evidence that our national security has been breached or at
risk as a result of these emails, and their being on this
server? Is there any evidence?
Mr. Comey. There's no direct evidence of an intrusion.
Mrs. Watson Coleman. Thank you very much. I have to tell
you that while I think that this should conclude this
discussion, I know we're going to hear this issue ad nauseam.
But I am concerned about another issue that I think really is
resonating with the people in this country.
And that issue has to do with experiences that we had just
the last 2 days. Mr. Director, I want to bring this up for your
consideration, because I want to ask you what can the FBI do--
FBI do in this issue? This morning we woke up to another
graphic and deeply disturbing video that actually brought me to
tears when my staff played it for me wherein a Minnesota
woman's boyfriend was--has been shot as her young child set in
the back seat after apparently telling the officer he was
licensed to carry a weapon, he had it on him, and was going to
reach for his identification.
Just the other day there was an incident in Baton Rouge
involving a Mr. Alton Sterling, an African American man who was
shot while pinned to the ground by police officers in Baton
Rouge. An interaction tape by two bystanders with cell phones
captured this.
So I think that we have got an issue here. An issue of real
national security. And I want to ask you, Mr. Director, do we
have an opportunity to direct our time and resources in your
department to those issues? Is it not important that we say
their names to remind people of the loss of a Tamir Rice, to an
Eric Garner, to an Alton Sterling, to a John Crawford, III, to
a Michael Brown, to a Walter Scott, and even a Sandra Bland?
Deaths in the hands of police custody, or by police happening.
Are these not happening at an alarming rate? And is this not a
legitimate space for the FBI to be working in?
Mr. Comey. Yes, is the emphatic answer. Those are
incredibly important matters. As you know, the FBI spends a lot
of time on them because they--they're very, very important. We
have an investigation open on the Baton Rouge case. I was
briefed this morning on the Minnesota case. And I would expect
we'll be involved in that as well. It's an important part of
our work.
Mrs. Watson Coleman. Do you feel that you have the
sufficient resources from the legal imperative to the funding
to address these cases and what seems to be a disturbing
pattern in our country today?
Mr. Comey. I'm a bad bureaucrat, but I believe I have
sufficient resources and we are applying them against those
situations. Because I believe the individual cases matter
enormously, but also, the people's confidence in law
enforcement is one of the bedrocks of this great country of
ours. So I have the resources, and we're applying them.
Mrs. Watson Coleman. And, in addition, we believe that our
law enforcement is, by and large, of high integrity and has the
desire to keep us protected and safe. But when we find out that
there are these occasions, and when there's an indication that
there's a pattern that is taking place in this country, we have
a responsibility to ensure that everyone in this country is
safe. And simply because you're a black man or a black woman
does not make you a target. Thank you. I yield back my time.
Chairman Chaffetz. Thank the gentlewoman. We'll now
recognize the gentleman from North Carolina, Mr. Walker.
Mr. Walker. Thank you, Mr. Chairman. Thank you, Director
Comey, for being here. A few things in this town that people
agree on both sides of the aisle. And one is your reputation.
Reminded the passage in James, ``Swift to hear, slow to speak,
slow to wrath.'' I am a little disappointed in some of the
things that I've heard from my colleagues about some of the
attacks on your character and your integrity. I haven't heard
those, and I hope that we have not experienced that. I also
struggle with the change of heart that we're hearing today.
Because I have a list of elected officials who have questioned
your investigation, even attacked it. In fact, the former
President Clinton said this is a gain. In fact, just last
Friday, Ms. Wasserman Schultz, Congresswoman Wasserman Schultz
said Secretary Clinton is not the target of this investigation
or whatever you want to call it. My question to you today is do
you feel like this has been a Republican witch hunt? This
hearing.
Mr. Comey. No.
Mr. Walker. Okay. Thank you for----
Mr. Comey. No, I said at the beginning I understand
people's questions and interest. And I'm a huge fan of
transparency. I think that's what makes our democracy great.
Mr. Walker. I think those are one of the reasons of why you
are so respected. To me, this hearing is about understanding
and disseminating the facts, how you saw them, and how the
American public sees them. And specifically, in the areas of
where there was wrongdoing admitted under your investigation,
where there was obviously breaking the law. But also some
coverups. Did Congress ask you to pursue this investigation?
Mr. Comey. No. It was a referral from the inspector general
of the intelligence community.
Mr. Walker. So it wasn't Republicans either. Was it?
Mr. Comey. No.
Mr. Walker. How did you go about collecting the evidence?
Mr. Comey. We used the tools that we normally use in a
criminal investigation.
Mr. Walker. Did or do you receive a congressional referral
for all the information that you collected?
Mr. Comey. Not to my knowledge.
Mr. Walker. Well, then one of the things that I'm
struggling with, or that I would like to know specifically is,
under oath, Ms. Clinton made these three comments that we now
know are untrue in the Benghazi hearing. Number one, she's
turned over all her work-related emails; number two, telling
the committee that her attorneys went through every single
email; and then finally, and probably the one that continues to
stick the most, there was, and I quote, ``Nothing marked
classified on my emails,'' end quote. Now, earlier, when the
chairman questioned you about this, you said something about
needing a congressional referral recommendation. My question
is, something of this magnitude, why or can you help me
understand, why didn't it rise to your investigation, or
someone bringing that to your knowledge as far as saying this
is a problem, here she is, again, Secretary Clinton lying under
oath, specifically about our investigation?
Mr. Comey. Well, we, out of respect for the legislative
branch being a separate branch, we do not commence
investigations that focus on activities before Congress without
Congress asking us to get involved. That's a longstanding
practice of the Department of Justice and the FBI. So we don't
watch on TV and say: We ought to investigate that. You know,
Joe Smith said this in front of the committee. It requires the
committee to say: We think we have an issue here. Would you all
take a look at it.
Mr. Walker. But with all due respect, if you had the
Secretary Clinton, who is under oath speaking about your very
investigation, and you talked about your wonderful staff, and
certainly have no reason to deny that, why wouldn't that rise
to the level of suspicion? Here she is saying this under oath.
I mean, lying under oath is a crime. Is it not?
Mr. Comey. Yes.
Mr. Walker. And what's the penalty on that? That's
considered perjury, right?
Mr. Comey. Perjury. It's a felony. I forget the exact--it's
potentially years in prison.
Mr. Walker. But I don't understand. Would you help me
understand why somebody wouldn't have tipped you off that she's
talking about the very specific case under oath that you're
investigating.
Mr. Comey. Well, there's a difference between us being
aware of testimony and us opening a criminal investigation for
potential perjury. Again, it's not this case in particular, but
all cases. We don't do that without a committee saying we think
there was an issue in testimony given in this separate branch
of the government.
Mr. Walker. You also mentioned earlier, and it's been
quoted several times that no reasonable prosecutor would move
forward with some of the facts. Is there any room at all that
somebody would differ a little bit on the opinion? I know that
former United States Attorney General Michael Mukasey said
would the illegal server disqualify her from ever holding any
Federal office? So there are some people of high esteem that
may differ, obviously not privy to the exact facts, but can you
make any room--you said no reasonable person. Do you understand
why the American people, or would you understand why other
people may say that she has stepped across the line or broken
enough law here that you would come to a different conclusion?
Mr. Comey. Sure. I respect different opinions. My only
point is, and I said earlier I smile because those folks are my
friends. I've worked with them for a long time. None of those
guys in my position, I believe, knowing what I know, would
think about it differently. But I also respect that they have a
different view from the outside.
Mr. Walker. Thank you, Mr. Chairman. Yield back.
Chairman Chaffetz. I thank the gentleman. I now recognize
the gentleman from California, Mr. DeSaulnier.
Mr. DeSaulnier. Thank you, Mr. Chairman. Director, I just
want to thank you as others have and I know you don't need
this, but I think the American people clearly need to hear it.
And you've done a wonderful job today. But there are moments in
my political life and as an American I despair for the future
of this country. Not often. But in those moments comes an
individual like yourself either by providence or good fortune
or by the framework of the U.S. Constitution, and I really
believe you have served this country and all Americans well,
irrespective of their party affiliation.
So really two questions. Two lines of questions, I should
say. One is, and another colleague has brought this up. But you
mentioned in just previous testimony about the bedrock and the
importance of public confidence in public safety institutions,
yours and all. So I just want to give you an opportunity, I
think you have responded to this multiple times, but give you a
little more opportunity, because I think it's important for the
American public to know that the system isn't rigged, that
there are people such as yourself, and the 15 individuals who
worked on this case and others that do their job and believe in
the Constitution of the United States. And if you have any
further comments about comments that would say that the
system's rigged and Americans should give up on the system?
Mr. Comey. No, I--one of reasons I welcome this opportunity
to have this conversation is I was raised by great parents who
taught me you can't care what other people think about you.
Actually, in my business, I have to and deeply do, that people
have confidence, that the system's not fixed against black
people, for rich people, for powerful people. It's very, very
important that the American people understand that there really
are people that you pay for with your tax dollars who don't
give a rip about Democrats or Republicans or this or that, who
care about finding out what is true.
And I am lucky to lead an organization that is that way to
its core. I get a 10-year term to ensure that I stay outside of
politics. But in a way, it's easy. I lead an organization that
is resolutely apolitical. We are tough, aggressive people. If
we can make a case, we'll make a case. We do not care what the
person's stripes are or what their bank account looks like.
And I worry very much when people doubt that. It's the
reason I did the press conference I did 2 days ago. I care
about the FBI's reputation. I care about the Justice
Department. I care about the whole system deeply. And so I
decided I'm going to do something no Director's ever done
before. I'm not going to tell the Attorney General or anybody
else what I'm going to say, or even that I'm going to say it.
They didn't know, nor did the media know, until I walked out
what I was going to talk about.
And then I offered extraordinary transparency, which I'm
sure confused and bugged a lot of people. It's essential in
this democracy that people see as much as they can so they can
make their judgment. Again, you may--they may conclude I'm an
idiot. I should reason differently. But what I hope they will
not conclude is that I am a dishonest person.
I am here trying to do the right thing in the right way.
And I lead 36,000 people who have that as their spine. That's
what I want them to know. I don't care that people agree or
disagree. That's what's wonderful about our democracy. But at
its core, you need to know there are good people trying to do
the right thing all day long. And you pay for them, and we'll
never forget that.
Mr. DeSaulnier. I appreciate that. And within the context
of these are human institutions, pretty clear to me as a
nonlawyer that you got a bright line in terms of your decision
about pursuing prosecution. But you did spend an extended
period of time talking about what I think I take from you as
being fairly objective analysis of what was careless in terms
of handling of it, either ascribed to the former Secretary of
State or to the Department. And you said, and I quote, during
your comments, ``While not the focus of our investigation, we
also developed evidence that the security culture of the State
Department in general and respect to the use of unclassified
email systems in particular was generally lacking in the kind
of care for classified information found elsewhere in the
government.'' That's accurate. Isn't it?
Mr. Comey. Yes, sir.
Mr. DeSaulnier. So struggling with this, and this is in the
context of this hearing, Oversight and State Department, and
this committee, as to how do we go from here and be clearer
about how the State Department, we'll talk about this with the
IG, and some of the comments that former Secretary Powell has
made, including that the absurdity of the retroactive
classification. And now we have 1,000 of these emails from
Secretary Clinton that's out in the public and are being spread
even further.
So there are other people involved. Sitting there, how does
this committee go forward to make sure that the State
Department can still function in the way it does with human
beings and have conversations that are both transparent but
also national security? What are the things we need to do to
make sure that this doesn't happen again?
Mr. Comey. Well, I think a good start--I think the reason
the chairman has the IG from the State Department here is to
start that conversation. The IG knows deeply the culture of a
Department, and is far better equipped than I to say you ought
to focus here, you ought to focus there to make it better. So I
think that's place to start.
Mr. DeSaulnier. Thank you, Mr. Director. I yield back.
Chairman Chaffetz. Thank you. We'll now recognize the
gentleman from Tennessee, Mr. DesJarlais, for 5 minutes.
Mr. DesJarlais. Director Comey, thank you for appearing so
quickly on short notice. I think it's really important that
you're here. Because of the way you laid out the case on
Tuesday, there is a perception that you felt one way and then
came to another conclusion. I, like many of my colleagues, put
a post up back in my district and let them know you were
coming. And in less than 24 hours, I had 750 questions sent to
ask you.
So, again, thank you for being here. But a common theme,
just to summarize, a lot of those concerns were that in this
case, Clinton was above the law. That there was a double
standard. And a lot of that was based on the way you presented
your findings. Now, your team, you said you did not personally
interview her on Saturday but your team did for about 3-1/2
hours, correct?
Mr. Comey. Yes.
Mr. DesJarlais. Okay. Do you know in reading the review or
the summary, did they ask Hillary Clinton about her comment
that she had never sent or received classified information over
private email?
Mr. Comey. I think so. But I can't--I can't remember
specifically.
Mr. DesJarlais. Okay.
Mr. Comey. It's a very long 302. I'd have to check.
Mr. DesJarlais. And we'll get access to that. Do you know
if they asked her when she said that there was nothing marked
classified on my email sent or received?
Mr. Comey. Same answer. I'm not sure.
Mr. DesJarlais. Okay. And so the same answer then when she
said, ``I did not email any classified material to anyone on my
email. There is no classified material.'' You don't know
whether they asked her that?
Mr. Comey. I don't know whether they asked her that
question. The entire interview was going--was focused on so
what did you know, what did you see, what is this document.
That kind of thing.
Mr. DesJarlais. Do you know if they asked her whether she
stands by the fact that she said she just used one device and
that was for her convenience?
Mr. Comey. I don't know. I know they established from
talking to her she used many devices during here 4 years. So I
don't know whether they asked her specifically about that
statement.
Mr. DesJarlais. Okay. I guess my----
Mr. Comey. That's easy to check, though.
Mr. DesJarlais. I guess my point is, you're trying to get
inside the head of Hillary Clinton in this investigation and
know whether there was intent. And so we all know what she told
the people. That's been well-documented. She said that she did
not do those things, that she did not send or receive
classified emails, that she used one server and one device for
her convenience, and since then, I think even in your statement
you recognize that those were not correct. Is that fair?
Mr. Comey. I really don't want to get in the business of
trying to parse and judge her public statements. And so I think
I've tried to avoid doing that sitting here.
Mr. DesJarlais. Why do you feel that's important?
Mr. Comey. Because what matters to me is what did she say
to the FBI. That's obviously first and foremost for us.
Mr. DesJarlais. Right. Honest people don't need to lie. Is
that right?
Mr. Comey. Honest people don't need to lie? I hope not.
Mr. DesJarlais. Okay. Well, in this case, for some reason,
she felt the need to misrepresent what she had done with this
server all throughout the investigation. And you guys, after a
year, brought her in on Saturday. And in 3-1/2 hours, came out
with the conclusion that she shouldn't be prosecuted because
there was no intent. Is that right?
Mr. Comey. No.
Mr. DesJarlais. Okay. So I don't want to put words in your
mouth, but is it fair to say that your interpretation of
Hillary Clinton's handling of top secret information and
classified documents was extremely careless?
Mr. Comey. Yes.
Mr. DesJarlais. And is it fair to say that you said that
you went on to define ``extremely careless'' that Hillary
Clinton's handling of top secret information was sloppy or
represented sloppiness?
Mr. Comey. Yeah. That's another way of trying to express
the same concept.
Mr. DesJarlais. Okay. And then just a few minutes ago, you
also stated that you now believe that Hillary Clinton is not
nearly as sophisticated as people thought. Is that correct?
Mr. Comey. Yeah. I think that's fair, actually. No, not as
people thought, but as people would assume about somebody with
that background. I'm sorry. I should be clear about this.
Technically sophisticated. I'm not opining in other kinds of
sophistication.
Mr. DesJarlais. All right. In the last minute, Director, I
want to talk a little bit about precedent. Because I think my
colleague, Trey Gowdy, made a great point that there still is
really no precedence in terms of punishment for this type of
behavior. Are you familiar with Brian Nishimura's case?
Mr. Comey. Yes.
Mr. DesJarlais. Okay. He's a Naval Reservist for those who
don't know. And he was prosecuted. What is the difference
between his case and Hillary Clinton's case in terms of
extremely carelessness and gross negligence, because we're
dealing with statute 793, section (f), where it does not
require intent. Is that correct?
Mr. Comey. I'm sorry. 793(f) is the gross negligence
standard.
Mr. DesJarlais. Right. And is that why Brian Nishimura was
punished?
Mr. Comey. No. Nishimura was prosecuted under the
misdemeanor statue 1924 on facts that are very different. If
you want me to go through them, I'll go through them, but very
different that----
Mr. DesJarlais. Okay. I think that there's been a review of
this case, and they're very similar. And that's why people feel
that there's a double standard.
Mr. Comey. What they're reading in the media is not a
complete accounting of the facts in that case.
Mr. DesJarlais. Well, would you agree, then, with
Representative Gowdy that there still is really no precedence
for punishing someone like Hillary Clinton and she could really
go in--potentially be elected President and do this again
without fear of being punished?
Mr. Comey. I don't think I'm qualified to answer that
question.
Mr. DesJarlais. My time's expired. Thank you for your time.
Chairman Chaffetz. Thank the gentleman. I now recognize the
gentlewoman from New Mexico, Ms. Lujan Grisham.
Ms. Lujan Grisham. Thank you, Mr. Chairman. I've had the
benefit of when you're last, or nearly last to really have both
the benefit and then the question, the kinds of statements and
the dialogue back and forth. And where I am settled at this
point in time is in a couple of places. But particularly, I
don't think there's any member in this committee or, quite
frankly, any Member in Congress who doesn't both want and
expect that the FBI and the Department of Justice to be and to
operate in a fair, unbiased, highly independent manner.
Otherwise, you can't appropriately uphold or enforce Federal
law. And while we have all--this has been stated in a couple of
different ways, I'm going to see if we can't--I want to get
direct answers.
So, Mr. Comey, is there any evidence, given that that's the
standard that we all want, desire, and expect, to suggest that
Hillary Clinton was not charged by the Department of Justice
due to inappropriate political influence, or due to her current
or previous public positions?
Mr. Comey. Zero. And if there is such evidence, I'd love
folks to show it to me.
Ms. Lujan Grisham. In that regard, was there a double
standard?
Mr. Comey. No. In fact, I think my entire goal was to avoid
a double standard, to avoid what sometimes prosecutors call
celebrity hunting and doing something for a famous person that
you would never do for an ordinary Joe or Jane.
Ms. Lujan Grisham. Thank you. And I really appreciate that
you're here today, and explaining the process in great detail,
frankly, and I've--this committee works at getting specific
detail about a variety of reviews, investigations, policies,
concepts throughout Federal Government. And I think I can say
that this committee often finds that we don't get very much
clarity or specific responses to the majority of questions that
we ask. So I really appreciate that. And that in explaining
that what led the FBI to conclude that Hillary Clinton should
not be charged.
Saying that, however, I'm still concerned, frankly, that
the use of this hearing and some of the public statements made
by elected officials accusing the Department of Justice of
using a double standard without any evidence at all to support
that statement, leaning on accusations of such, in fact,
jeopardizes the very thing that we want the most, which is an
apolitical and independent Department of Justice. And we have
every right to ask these tough questions.
And to be clear that the process that you use for everyone,
including elected officials, works. And that there's a
responsibility not to substitute your own political preferences
to the outcome of an independent and apolitical Department of
Justice investigation on any level, whether it involves Hillary
Clinton or anybody else. Do you agree with that general
statement?
Mr. Comey. Yes.
Ms. 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've 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 have 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 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.
Mr. Comey. Thank you.
Chairman Chaffetz. Thank the gentlewoman. We'll now
recognize the gentleman from Georgia, Mr. Carter, for 5
minutes.
Mr. Carter. Thank you, Mr. Chairman. And, Director Comey,
thank you for being here today. I appreciate it. I'm over here.
And I'm going to be real quick and try to be succinct. I want
to clarify some things that you said. And, look, I don't want
to go over everything that everybody's been through today. I
mean, we've had some great questions here that 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
publicly, and yet you dispute that and say, No, this is the
case. But, look, I've just got a couple of questions. Okay?
First of all, did I understand you correctly that your
decision--that this decision was made within 3-1/2 hours of an
interview and that was all?
Mr. Comey. No. We investigated for a year.
Mr. Carter. But you interviewed her for 3-1/2 hours last
week and then came to the conclusion?
Mr. Comey. Correct. We interviewed her on Saturday for 3-1/
2 hours. The last step of a yearlong investigation.
Mr. Carter. Now, as I understand it, Hillary Clinton has
testified 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 were
using, were they ever secure?
Mr. Comey. Well, the challenge, security's not binary. It's
just degrees of security. It was less security than, one, at
the State Department, or, as I said, even one at a private
commercial provider, like a Gmail.
Mr. 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're not
supposed to be doing that?
Mr. Comey. I think a lot of people around the Secretary
understood she have was using a private personal email setup.
Mr. Carter. Then why didn't they say something? Don't they
have a responsibility as well?
Mr. Comey. That's an important question that goes to the
culture of the State Department that's worth asking.
Mr. Carter. I mean, look, we all surround ourselves with
good people and we depend on them to help us. I don't
understand--should they be held responsible for that, for not
bring that to someone's attention? If I see someone who's
breaking--who's not following protocol, is it my responsibility
to report them?
Mr. Comey. Yes.
Mr. Carter. Well----
Mr. Comey. Especially when it comes to security matters.
You have an 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----
Mr. Carter. What about Bryan Pagliano? Did he ever know? Do
you know if he knew that she was not following proper protocol
here?
Mr. Comey. He helped set it up.
Mr. Carter. He helped set it up. So obviously he knew.
Mr. Comey. Yeah. Obviously, he knew that----
Mr. Carter. Okay. Is anything going to be done to him? Any
prosecution or any discipline, any----
Mr. Comey. I don't know about discipline, but there's not
going to be a prosecution of him.
Chairman Chaffetz. Will the gentleman yield?
Mr. Carter. I yield.
Chairman Chaffetz. My understanding, Director, is that you
offered him immunity. Why did you offer him immunity, and what
did you get for it?
Mr. Comey. Yeah. That I have to--I'm not sure what I can
talk about in open setting about that.
Chairman Chaffetz. Well, he's not going to be prosecuted.
So----
Mr. Comey. Right. But I want to be careful. I'm doing this
24 hours after the investigation closed. I want to be
thoughtful because we're, as you know, big about the law, that
I'm following the law about what I can 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.
Mr. Carter. Director Comey, 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 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 it was like you could hear a gasp throughout the country of
people saying, Oh, here we go again. Do you regret presenting
it in a way like that?
Mr. Comey. No. And 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.
Mr. Carter. 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
and the way that the questions have been asked here and we've
made all these points of where she was--obviously told lies
under oath, that it would have been, Okay, we finally got one
here.
Mr. Comey. 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
okay. But----
Mr. Carter. But when we--look, I've only been here 18
months. And I want to tell you, this inside-the-beltway
mentality, no wonder people don't trust us.
Mr. Comey. I have--I know who you're talking about. I have
no kind of inside-the-beltway mentality.
Mr. Carter. But this is an example of what I'm talking
about here. It just as a nonlawyer, as a noninvestigator, it
would appear to me you have got a hell of a case.
Mr. Comey. Yeah. And I'm telling you we don't. And I hope
people take the time to understand why.
Mr. Carter. Mr. Chairman, I yield back.
Chairman Chaffetz. Thank the gentleman. I will now
recognize the gentleman from Arizona, Mr. Gosar. Oh, let's go
ahead and go to the gentleman from South Carolina, Mr.
Mulvaney, first.
Mr. Mulvaney. Thank the gentleman. Director Comey, earlier
today you heard a long list of statements that Mrs. 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?
Mr. Comey. I'm not equipped sitting here without the 302 in
front of me to answer in that broad----
Mr. Mulvaney. But it's your testimony----
Mr. Comey. I have no basis that--we do not have a basis for
concluding she lied to the FBI.
Mr. Mulvaney. Gotcha. Did anybody ask her on Saturday why
she told you all one thing and told us another?
Mr. Comey. I don't know as I sit here. I mean, I'll figure
that out----
Mr. Mulvaney. Would that have been of interest to you in
helping to establish intent?
Mr. Comey. It could have been, sure.
Mr. Mulvaney. More importantly, I think, did anybody ask
her why she set up the email system as she did in the first
place?
Mr. Comey. Yes.
Mr. Mulvaney. And the answer was convenience?
Mr. Comey. Yeah. It was already there. It was a system her
husband had. And so she just jumped onto it.
Mr. Mulvaney. Were you aware that just earlier this week,
her assistant actually said it was for an entirely different
reason? It was to keep emails from being accessible, and that
it was for concealment purposes? And Huma Abedin was asked in
her deposition why it was set up. And it was said to keep her
personal emails from being accessible. The question, to whom.
To anybody. Were you aware of that testimony?
Mr. Comey. Generally, yes.
Mr. Mulvaney. Okay. So 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 testimony, your findings, she was
careless regarding its technical security. I think you've 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've 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 got you
acknowledge that it might even put our agents overseas at risk.
Mr. Comey. Yeah. I don't think I agree with that. But it's
still important.
Mr. 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
to 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
will be no criminal charges if you're the FBI Director against
that person?
Mr. Comey. That's not a question the FBI Director should
answer. I mean----
Mr. Mulvaney. No, I'm asking if she does the exact same
thing as President as she's done today, your result will be the
exact same as it was 48 hours ago. There will be no criminal
findings, right?
Mr. Comey. If the facts were exactly the same?
Mr. Mulvaney. Right.
Mr. Comey. And the law was exactly the same?
Mr. Mulvaney. Right.
Mr. Comey. Yeah. The result would be the same.
Mr. Mulvaney. And I guess under the theory that if 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 will be no
criminal action against that person. There could be, as you've
mentioned, administrative penalties. There are no
administrative penalties, as I understand it, by the way,
against the President. Correct?
Mr. Comey. I don't think so. But I'm not a----
Mr. Mulvaney. I don't think there are either. 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 him, but 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. I guess it's a
commonsense, ordinary question that folks are asking me. From a
national security standpoint, somebody who used to lecture on
that, does that bother you?
Mr. Comey. The mishandling of classified information
bothers me no matter what circumstance it occurs in. Because it
has national security implications.
Mr. 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?
Mr. 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 the 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 for the FBI to
answer. We should aspire to be apolitical, facts and the law,
treat Joe the same as Sally as Secretary so-and-so. That's my
goal.
Mr. Mulvaney. If you had come to a different decision--by
the way, I tend to agree with everything you've just said. If
you had come to a different decision, do you think that would
have a different precedential value that would keep our
information more safe?
Mr. Comey. If we decided to recommend criminal charges
here?
Mr. Mulvaney. Yes, sir.
Mr. Comey. I don't know. That's a good question. I don't
know. I could argue it both ways. I guess I'm a lawyer, I can
argue everything both ways. But I could argue that both ways.
Mr. Mulvaney. Thank you, Director Comey. Thank you, Mr.
Chairman.
Chairman Chaffetz. Thank the gentleman. Now recognize the
gentleman from Arizona, Mr. Gosar, for 5 minutes.
Mr. Gosar. Thank you, Mr. Chairman. Thank you, Mr. Comey,
for being here. My colleague alluded to Bryan Pagliano, the IT
adviser. And were you made aware of the deal of immunity with
him?
Mr. Comey. I am aware.
Mr. Gosar. Now that Attorney General Lynch has stated that
there will be no charges, there's many that suspect 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?
Mr. Comey. As I said in response to the earlier question, I
need to be more thoughtful about what I say about an immunity
deal in public. It may be totally fine. I just don't want to
screw up because we're doing this so quickly. 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.
Mr. Gosar. But you know that there may be something there
in hindsight, right? You're looking ahead because of the
pertinent information this person possesses.
Mr. Comey. Right. You believe they have relevant
information to the investigation.
Mr. Gosar. So did the investigators draft an interview
report known as a 302 with Mr. Pagliano?
Mr. Comey. Yes.
Mr. Gosar. Given the importance of this case, will you
commit to voluntarily disclosing the 302s for review of Bryan
Pagliano and other witnesses interviewed as part of your
investigation?
Mr. Comey. I'll commit to giving you everything I can
possibly give you under the law, and to doing it as quickly as
possible. That said, that means I got to go back and sort it
out. For example, the 302 of Secretary Clinton is classified at
the TS/SCI level. So we got to sort through all that. But we'll
do it quickly.
Mr. Gosar. Yeah. I know you've done this, because you've
done this for Lois Lerner 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 110 of
Clinton's emails, and 52 email chains confined classified
information. Clinton told the American people, and I quote,
``The laws and regulations in effect when I was Secretary of
State allowed me to use my email for work. This is
undisputed,'' end of quote. Your investigation revealed that
that also wasn't true.
Clinton claimed she turned over all her work-related
emails. Your 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 is was possible,
quote, ``hostile actors gained access to sensitive
information.'' Further, multiple people she emailed with
regularity were hacked by hostile actors and her private
servers were 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 has publicly stated she was well aware of the
classification requirements, yet she broke the law anyway.
Multiple people have been prosecuted for less. And there is a
growing trend of abuses in senior level employees. The only
difference between her and others is her total resistance 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 of Title 18. If not, who? If
not now, when? Your recommendation deprived the American people
of the opportunity for justice in this matter. There shouldn't
be 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 to the gentleman from South Carolina, Mr. Gowdy.
Mr. Gowdy. Thank you, Dr. Gosar. Director Comey, I want to
go back to the issue of intent for just a second. We can
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, quote, ``Well aware of
classification requirements.'' Those are her words, not mine
and not yours. So if she were, quote, ``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.
Mr. 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.
Mr. Gowdy. 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.
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.
Mr. Comey. I disagree. You may have prosecuted a lot of
those folks. I did not prosecute a lot of those folks----
Mr. Gowdy. Well, I was a gutter prosecutor and you were a
white collar prosecutor. Trust me. 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 2 years to return the documents. And she
wouldn't have deleted them 4 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?
Mr. Comey. You know, my focus, and I hope I made this
clear.My focus was 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--well, I think I've said it
already. But that's my focus.
Mr. Gowdy. So I know I'm out of time, but it just strikes
me you are reading a specific intent element into a gross
negligence statute. Not even general intent.
Chairman Chaffetz. The gentleman's time----
Mr. Gowdy. A specific intent----
Chairman Chaffetz. The gentleman's time has expired.
Mr. Comey. Sorry.
Chairman Chaffetz. The Director can answer.
Mr. Comey. I enjoy talking with him. The question you got
to ask is so why is it that the Department of Justice, since
1917, has not used that gross negligence statute but charging
it 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 would be treating this person differently than
John Doe.
Chairman Chaffetz. Director, I want to follow up on that.
Why did you do what you did? You know, my interpretation of
what the FBI is supposed to be doing is come to a determination
of the facts. And then turn it over to a prosecutor. You were a
prosecutor. But you're not a prosecutor now.
Mr. Comey. Right.
Chairman Chaffetz. 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 did you do that?
Mr. Comey. Yeah. It's a great question. The--everything I
did would have been done privately in the normal course. We
have great conversations between the FBI and 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 that was
very, very important for their confidence in the system of
justice. And within that, their confidence in the FBI. And I
was very concerned if I didn't show that transparency, that in
that lack of transparency people could say, Gees. What's going
on here? Something--you know, something seems squirrely here.
And so I said I will do something unprecedented because I think
this is an 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. Okay. So if that happens in the next 100
years they'll have to deal with what I did. So I decided it was
worth doing.
Chairman Chaffetz. Mr. Cummings.
Mr. Cummings. Mr. Director, I have just one question. You
know, I've been sitting here listening to this. And I really--
this is something that bothered me in the Lois Lerner case, and
it bothers me in this case. And I'm just wondering your
opinion. Mrs. Lawrence had talked about this, the chilling
effect of your having to come here and justify your decisions.
And I know that you've been really nice, and you just explained
why you did what you did, and I'm glad you're doing it. But,
you know, do you at all, and, I mean, taking off--I'm just
talking about here you've got people making decisions and then
being pulled here in the Congress to then say, okay, to be
questioned about the decisions. At what point--or do you even
think about it becoming a chilling effect? Because most people,
you know, when their decision's made, don't get this kind of
opportunity, as you well know. There are no statements. You
know, they either get indicted or they're not.
So I noted you see this as a special case. And I wonder
whether you agree with Mrs. Lawrence that we may be just going
down a slippery slope. That's all I want to ask.
Mr. Comey. And my honest answer is I don't think so. As I--
when I talked to the chairman, I agreed to come because I think
the American people care deeply about this. There's all kind of
folks watching this at home or being told, Well, lots of other
cases were prosecuted and she wasn't. I want them to know
that's not true.And so I want to have this conversation. And I
actually welcome the opportunity. Look, it's a pain. I've had
to go to the bathroom for about an hour, but it is really----
Chairman Chaffetz. Don't worry. We're halfway done. So----
Mr. 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 misremembering. In the
Petraeus case, we didn't find the notebooks in the attic, we
found it in his desk. So I wanted to make sure I was fair to
him about that.
But I really don't think so. I don't think it has a
chilling effect. Again, if there's another presidential
candidate being investigated by the FBI, maybe they'll be bound
by this. Lord willing, it's not going to happen again.
Certainly I have 2,619 days left in this job. I won't happen on
my term. But if does, I won't be chilled.
Chairman Chaffetz. Thank the gentleman. If we need a
humanitarian break, just give me the cue, but----
Mr. Comey. No. I feel like we're almost done, though.
Chairman Chaffetz. We're on the right trajectory, yes.
But we would like to recognize the gentleman from Alabama,
Mr. Palmer, for 5 minutes.
Mr. Palmer. Thank you, Mr. Chairman. Director Comey, your
statement on Tuesday indicated that Secretary Clinton and her
colleagues send and received emails marked classified on an
unsecured private email server that may or may not have been
hacked by a foreign power. Are you aware that teenage hackers
hacked the personal email accounts of CIA Director John
Brennan, the Director of U.S. National Intelligence, James
Clapper, and FBI Deputy Director Mark Giuliano?
Mr. Comey. I am intensely aware. They didn't hack in the
way we normally think of it, but that they, by trickery, got
access to their accounts.
Mr. Palmer. The point I want to make is that these were
personal--commercially protected personal email accounts that
contained no classified information. Yet Mrs. Clinton used her
personal email, 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 the personal email accounts of the
Director of the CIA, the Director of U.S. National
Intelligence, and the Deputy Director Of the FBI, does it
concern you that sophisticated hackers or hackers working for
foreign interests never attempted--I mean, does it seem
reasonable that they never attempted, or were never successful
in hacking Mrs. Clinton's personal email accounts or one of her
devices?
Mr. Comey. No. It concerns me a great deal. And that's why
we spent so much time to see if we could figure out--see
fingerprints of that.
Mr. Palmer. Well, 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, but that is not what we're deciding
here.'' Do you stand by that?
Mr. Comey. Yes.
Mr. Palmer. Okay. I thought you would. You also said you
could not prove intent. I don't want to--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 secure 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?
Mr. Comey. I would agree it would be negligent. I can't
prejudge a suitability determination, but it would definitely
be stared at very hard.
Mr. Palmer. Well, let me tell you why I bring this up. I
sat here next to Mr. Hurd, who served our country valiantly.
Put his life on the line. And I don't know if you could sense
the passion and intensity of his questions, because he knows
people whose lives are on the line right now. And in regard to
his questions, if someone, a U.S. intelligence agent had their
mission compromised, or worse, had been killed or injured or
captured because of the carelessness of someone responsible for
protecting classified information, would intent matter at that
point?
Mr. Comey. In deciding whether to prosecute the person? Of
course. But--yeah. That's the answer. Of course it would. It
would--the matter would be deadly serious. But the legal
standards would be the same.
Mr. Palmer. Well, what we're 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, and as
Mr. Hurd pointed out, the missions and personal safety of our
intelligence agents. That troubles me greatly.
And I think the issue here--and I do respect you. I have
spoken in your defense many times, at this point, to my
detriment. But I do believe that your answers are honest and
factual. But based on your answers regarding Mrs. Clinton's use
of the email, and based on what we know, it seems to me that
she is stunningly incompetent in her understanding of the basic
technology of email, 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're trying to do.
I just think we need to leave here with this understanding,
that there's 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 emails that were deleted. They read them all. They
know what is in the emails that we never received.
Mr. Chairman, I yield back.
Chairman Chaffetz. I thank the gentleman. We'll now go to
the gentleman from Wisconsin, Mr. Grothman, for 5 minutes.
Mr. 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 emails and servers and that sort of
thing.
Question for you. When she erased these emails--or no, I
digress for a second. You, however, did say that if somebody
did this under you there would be consequences. If somebody did
exactly what Mrs. Clinton did, but was one of your lieutenants
or you think one of the lieutenants under the CIA or some other
agency that deals with top secret documents, what would you do
to those underlings?
Mr. Comey. I would make sure that they were adjudicated
through a security disciplinary proceeding to figure out what
are all the circumstances and then what punishment, discipline
is appropriate. That could range from being terminated, to
being reprimanded, and then a whole spectrum in between,
suspension, loss of clearance. It's a bunch of different
options.
Mr. Grothman. Okay. But tomorrow, 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,
you know, flipping them around. Do you think they should be
fired? Not criminally charged, but fired?
Mr. Comey. Yeah. I don't think it's appropriate to say. I
think it should go--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 do through our
system.
Mr. Grothman. Okay. Next question. Just for the listening
audience here, at first when I hear about erasing emails, I
think it's like, you know, on my own phone where I might erase
an auto insurance solicitation. The erasures here, however,
were not just Mrs. Clinton pressing delete. Were they? There
was a much greater effort made to make sure that these emails
would never be recovered. Do you want to comment on what was
done to erase the emails?
Mr. Comey. I think what you're referring to is after her
lawyers--her lawyers say, although 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 2 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 the servers to wipe them way.
Mr. Grothman. Okay. So in other words, the effort was not
just Mrs. Clinton or somebody went delete, delete, delete. They
went above and beyond that so that your top technical efforts
could not--technical experts could not get back at these
emails, correct?
Mr. Comey. Right. Not fully. We were able to by going----
Mr. Grothman. You recovered a few.
Mr. Comey. Yeah. We could go through the lawyers' laptops
and see some traces, but not fully--not fully recover them.
Mr. Grothman. Okay. Now, the information that I have, and
you can correct me if I'm wrong, implies that these erasures
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 emails 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?
Mr. Comey. Yeah. I think the way the process worked is she
had emails 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 emails 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 emails?
And she said, I have no use for them anymore. It's then that
they issued the direction that the technical people delete
them.
Mr. Grothman. Do you think Mrs. Clinton knew that the
technical people were erasing these emails so that even your
top technical experts could recover them?
Mr. Comey. Based on my sense now of her technical
sophistication, I don't think so.
Mr. Grothman. You don't think the lawyers told her that
that's what they were doing, erasing all these emails that
everybody on this committee wanted to look at?
Mr. Comey. Yeah. And I'm sure we've asked this and----
Mr. Grothman. What type of lawyer wouldn't tell their
client they were doing that? But----
Mr. Comey. I don't 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.
Mr. Grothman. Okay. Now, as I understand it, the goal was
just to erase personal emails, but you've recovered emails that
wouldn't be considered personal emails at all.
Mr. Comey. Correct.
Mr. Grothman. Okay. I know that you didn't recover them,
but based upon the emails that you recovered, presumably her
lawyers or somebody was going well beyond personal emails, is
it possible we'll never be able to recover emails 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 yourself were not particularly investigating, but that
these have now been destroyed forever?
Mr. Comey. I guess it's possible. As I said in my statement
on Tuesday, we did not find evidence to indicate that they did
the erasure to conceal things of any sort. But it's possible,
as I said on Tuesday, that there are work-related emails that
were in the batch that were deleted.
Mr. Grothman. I'm sorry. When you go to this length to make
sure you can never recover the emails that are erased, wouldn't
you think the intent is to make sure nobody ever looks at them
again? Why would--otherwise, would you just go----
Chairman Chaffetz. I thank the gentleman. We'll give the
Director time if he wants to respond.
Mr. Comey. Sure. You know, I guess it's a bit circular. You
delete because you want to delete, but that--what I mean is we
didn't find any evidence of evil intent, an intent to obstruct
justice there.
Mr. Grothman. You wouldn't have been able to----
Chairman Chaffetz. I thank----
Mr. Grothman. --because you don't know what was deleted,
but----
Chairman Chaffetz. I thank the gentleman.
We'll now recognize Mr. Russell of Oklahoma for 5 minutes.
Mr. 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 state 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. Thank you for your dedicated service
and your integrity.
Mr. Comey. Thank you.
Mr. Russell. You have stated in your statement and also
multiple times here that there should be consequences for the
mishandling of state secrets. If I held 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've handled classified
information here--but if I held that in the FBI and you
discovered that I mishandled state secrets on a private server
in my basement, would I be trusted by the Bureau to further
handle top secret/SCI information?
Mr. 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.
Mr. 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?
Mr. Comey. It would be a serious concern, and we would
stare at it very hard in a suitability review.
Mr. Russell. Although you have recommended to the
Department of Justice that no criminal charges be brought to
bear, are you recommending to the Department of Justice that
there be no consequences for the mishandling of state secrets?
Mr. Comey. No. My recommendation was solely with respect to
criminal charges.
Mr. Russell. What would you recommend?
Mr. Comey. I don't think it's for me to recommend.
Mr. 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?
Mr. Comey. And what I meant earlier is that's not a
question that the American people should put to the FBI
Director. I can answer about the things within my remit, but
that--I understand the question, but it's not one for me to
answer in my role.
Mr. 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, I
mean, for decades of my service in the Army infantry and
handling top secret/SCI information and then as a Member of
Congress, I mean, 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?
Mr. Comey. No, I think, in a way, you would expect she
understood the importance of protecting classified information.
Mr. Russell. Well, I would agree with that. And there has
been a breach, and 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.
Chairman 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've
been most generous with your time, but I would like to get
through these last bit.
Mr. Comey. Okay.
Chairman Chaffetz. 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?
Mr. Comey. Yeah. We looked at that pretty closely. There
was some problem with their secure fax machine. And there's an
email in which she says, in substance, take the headers off of
it and send it as a nonpaper.
As we've dug into that more deeply, we've come to learn
that, at least there's one view of it that is reasonable, that
a nonpaper in State Department parlance 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, because we actually
found that the classified fax was then sent, but that's our
best understanding of what that was about.
Chairman Chaffetz. So this was a classified fax?
Mr. Comey. Correct.
Chairman Chaffetz. So Hillary Clinton sends to Jake
Sullivan--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
nonpaper with no identifying heading and send nonsecure.
Mr. Comey. Yeah.
Chairman Chaffetz. 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 nonsecure format.
Mr. Comey. Right.
Chairman Chaffetz. Is that not intent?
Mr. 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 did as well, is what she meant by that
is make it into a nonclassified document, that's a what a
nonpaper is in their world, and send it to us, because I just--
I don't need the classified stuff, I just need the----
Chairman Chaffetz. Then why take off the heading? If it's
going to be turned into a nonclassified document, why take off
the heading?
Mr. Comey. I assume because it would be nonclassified
anymore, so you wouldn't have a classified header on it, I
think is what she said during her interview.
Chairman Chaffetz. So she wanted to be technically correct?
Is that what you're saying? This is your----
Mr. Comey. No. I think what she said during the interview
is: I was telling him, in essence, send me an unclassified
document, take the header off, turn it into a nonpaper. Which
is a term I'd never heard before, but I'm told by people I
credit that in diplomatic circles, that means something we
could pass to another government.
Chairman Chaffetz. You are very generous in your accepting
of that.
Let me ask you, Director, did any uncleared individuals
receive any classified information over Hillary Clinton's
server?
Mr. Comey. Did any uncleared people receive classified
information? I don't think any of the correspondents on the
classified emails were uncleared people. These were all people
with clearances working, doing State Department business on the
unclass system.
Chairman Chaffetz. Did Mr. Pagliano have the requisite
security clearance?
Mr. Comey. As I sit here today, I can't remember. He was
not a participant on the classified email exchanges, though.
Chairman Chaffetz. He was running the server. He set up the
server.
Mr. Comey. That's a different question. Well, I'm sorry. I
misunderstood your question, then.
Yeah. 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.
Chairman Chaffetz. So there are hundreds of classified
documents on these servers. How many people without a security
clearance had access to that server?
Mr. Comey. I don't know the exact number as I sit here.
It's probably more than 2, less than 10.
Chairman Chaffetz. And I appreciate your willingness to
follow up with this.
Did Secretary Clinton's attorneys have the security
clearances needed?
Mr. Comey. They did not.
Chairman Chaffetz. Does that concern you?
Mr. Comey. Oh, yeah. Sure.
Chairman Chaffetz. Is there any consequence to an attorney
rifling through Secretary Clinton's, Hillary Clinton's emails
without a security clearance?
Mr. 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-in
documents, potentially having access. That's why it's very,
very important for us to recover everything we can back from
attorneys.
Chairman 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.
Mr. Comey. I think that's what happened in fact. Whether
that was the direction is a question I can't answer sitting
here.
Chairman Chaffetz. You're parsing that one a little bit for
me.
Mr. Comey. No, no. You were just asking me. I don't--I
don't know----
Chairman Chaffetz. What's the consequence? They don't work
for the government. We can't fire them.
Mr. Comey. Right.
Chairman Chaffetz. So is there no criminal prosecution of
those attorneys? Should they lose their bar license? What's the
consequence to them?
Mr. Comey. Well, if they acted with criminal intent or
acted with some mal-intent.
Chairman 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, hey, 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?
Mr. Comey. Of course it matters. That's why I said----
Chairman Chaffetz. But there's no consequence, Director.
There's no consequence.
Mr. Comey. Well, I don't know what consequence you'd have
in mind. Very----
Chairman Chaffetz. Prosecute them.
Mr. Comey. An attorney for receiving from his client
information that ends up being classified?
Chairman Chaffetz. I asked you at the very beginning, does
Hillary Clinton--is there a reasonable expectation that Hillary
Clinton would send and receive hourly, if not daily, classified
information? That's reasonable to think that the Secretary of
State would get classified information at every moment. She is
not the head of Fish and Wildlife.
So the idea that she would turn over her emails, her
system, her server to, what it sounds like, up to 10 people
without security clearances, and there's no consequence. So why
not do it again?
Mr. Comey. Well, that's a question I don't think you should
put to me. You're asking--I'm talking about my criminal
investigation.
Chairman Chaffetz. But how can that--there's no intent
there? Does she not understand that these people don't have
security clearances?
Mr. Comey. Surely she understands at least some of them
don't have security clearances.
Chairman Chaffetz. So she understands they don't have
security clearances and it's reasonable to think she's going to
be getting classified information. Is that not intent, to
provide a noncleared person access to classified information?
Mr. Comey. You're mixing it up, though. I don't think it's
reasonable to assume--mixing me up, sorry, it's not your
fault--that someone who is maintaining your server is reading
your emails. In fact, I don't think that's the case here.
There's a separate thing, which is when she's engaging
counsel to comply with the State Department's requests, are her
lawyers then exposed to information that may be on there that's
classified.
Chairman Chaffetz. Did they see any classified information?
Did Hillary Clinton's attorneys, without security clearances,
see classified information?
Mr. Comey. As I sit here, I don't know the answer to that.
Chairman Chaffetz. It has to be yes, Director. You came
across 110, and they said they went through all of them.
Mr. Comey. Well, they didn't read them all, they just
looked at headers.
Chairman Chaffetz. So their excuse is, ``We saw the emails,
but we didn't read them''?
Mr. Comey. No, I think I said this in my statement on
Tuesday, they sorted the emails by using headers and search
terms to try and find work-related emails. We read them all.
Chairman Chaffetz. I know that you read them all. Do you
think it's reasonable or unreasonable to think that her
attorneys, under her direction, did or did not read those
emails? Because there were--let me go back to this. Yes or no,
were there or were there not classified emails that her, that
Hillary Clinton's attorneys read?
Mr. Comey. I don't know whether they read them at the time.
Chairman Chaffetz. Did Hillary Clinton give noncleared
people access to classified information?
Mr. Comey. Yes. Yes.
Chairman Chaffetz. What do you think her intent was?
Mr. Comey. I think then it was to get good legal
representation and to make the production to the State
Department. I think it would be a very tall order in that
circumstance, I don't see the evidence there to make a case
that she was acting with criminal intent in her engagement with
her lawyers.
Chairman Chaffetz. And 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.
Mr. Cummings. Director, thank you for your patience.
I want 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 emails that were
marked as classified.
On Tuesday, you stated, and I quote: ``Only a very small
number of the emails containing classified information bore
markings''--and I emphasize, bore markings--``indicating the
presence of classified information,'' end of quote. 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 clarified that you were talking about only 3
emails out of 30,000 your office reviewed. Is that right?
Mr. Comey. Three, yes.
Mr. Cummings. Three out of 30,000. Is that right?
Mr. Comey. Yes. At least 30,000.
Mr. Cummings. At least 30,000.
Second, you confirmed that these three emails 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,
office of origin, reason for classification, or date for
declassification. Instead, these emails included only a single,
quote, ``C,'' parenthesis, end parenthesis, and then end of
quotation mark, for confidential on one paragraph lower down in
the text. Is that right?
Mr. Comey. Correct.
Mr. 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 emails were not, in fact, classified. So
that was also critical new information.
But there's one more critical fact, that these emails were
not in fact--and that is this, Director, and to the press--
these emails were not, in fact, classified. The State
Department explained to us yesterday, they reported that these
emails are not classified and that including the little C on
these emails was a result of a human error. The bottom line is
that those little C's 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--
you know, because the Republicans are pouncing and saying that
the Secretary lied, and so I want to make sure that we're clear
on this.
Can you tell us why, Director Comey, did you consult--and
we're just curious--did you consult with the State Department
about these 3 emails out of the more than 30,000, or did this
just not come up? What happened there?
Mr. Comey. Yeah. 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
that 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.
Mr. Cummings. So this is totally different than what we
understood yesterday. Today we learned that these emails were
not in fact classified. They should not have been included--
they should have not included those stray 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 had security clearances. It's my
understanding that they did. We can double-check that, but that
is my understanding. We'll double-check that.
Going on, 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
email system during her time as Secretary of State.'' You
explained that you received a referral on this matter from the
inspector general of the intelligence community on July 6,
2016. Is that right.
Mr. Comey. Yes.
Mr. Cummings. Today, tens of thousands of Secretary
Clinton's emails are publicly available on the State
Department's Web site. And our staff have been reviewing the
emails that were retroactively determined to include classified
information.
Based on this review, it appears that these emails included
more than 1,000 individuals who sent or received the
information that is now redacted as classified. Let me make
that clear. About 1,000 people sent or received the same
information that was contained in Secretary Clinton's emails
and retroactively classified. Were you aware of that?
Mr. Comey. No. The number doesn't surprise me, though.
Mr. Cummings. Why not?
Mr. Comey. Because this was--they were doing the business
of the State Department on this email system. So I don't know
how many thousands of people work at the State Department, but
it doesn't surprise me there would be lots of people on these
chains.
Mr. Cummings. And would you agree that we need--that
something needs to be done with regard to this classification
stuff, because 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?
Mr. Comey. Yeah. 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.
Mr. 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 emails, did you also receive
any referrals for any of the other 1,000 people who sent and
received those emails? Did you?
Mr. Comey. No.
Mr. Cummings. I understand----
Mr. 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 who
may have been on the chains were not the subjects of the
investigation.
Mr. Cummings. Okay. I think 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?
Mr. Comey. No, I don't--I don't think I agree with that.
Mr. Cummings. Okay. So you--so you--let's go back to Colin
Powell. Do you think you ought to look at his situation? Or
Condoleezza Rice?
Mr. Comey. Well, there's been no referral on them. I know
only sort of at a superficial level their circumstances. This
case strikes me as very different from those and not an
inappropriate referral from the inspector general.
Mr. Cummings. Very well.
Chairman Chaffetz. I thank the gentleman.
Who was Hillary Clinton emailing that was hacked?
Mr. Comey. Yeah. I don't want to say in an open forum. We
can get you that information, but I don't want to--again, I
don't want to give any hostile adversaries insight into who--
what we figured out.
Chairman Chaffetz. Fair enough.
Mr. Comey. So I know the names.
Chairman Chaffetz. Understood.
Mr. Comey. Yeah.
Chairman Chaffetz. Was there any evidence of Hillary
Clinton attempting to avoid compliance with the Freedom of
Information Act?
Mr. Comey. That was not the subject of our criminal
investigation, so I can't answer that sitting here.
Chairman Chaffetz. It's a violation of law, is it not?
Mr. Comey. Yes. My understanding is there are civil
statutes that apply to that. I don't know of----
Chairman Chaffetz. 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 noncompliance
with the Freedom of Information Act?
Mr. Comey. Correct.
Chairman Chaffetz. You did not look at testimony that
Hillary Clinton gave in the United States Congress, both the
House and the Senate?
Mr. Comey. To see whether it was perjurious in some
respect?
Chairman Chaffetz. Yes.
Mr. Comey. No, we did not.
Chairman Chaffetz. Did you review and look at those
transcripts as to the intent of your recommendation?
Mr. Comey. I'm sure my folks did. I did not.
Chairman Chaffetz. So--okay. 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.
Mr. Comey. Correct. As I said, I'm confident my folks
looked at the substance of the statements trying to understand
the circumstances around the entire situation.
Chairman Chaffetz. Can you confirm that? I just want to
make----
Mr. Comey. Yeah, we'll confirm that. And also, again, maybe
I'm missing this, but I don't think we got a referral from
congressional committees, a perjury referral.
Chairman Chaffetz. No. It was the inspector general that
initiated this.
Mr. Comey. Yeah.
Chairman Chaffetz. Did the--the fact that Hillary Clinton
refused to be interviewed by the inspector general, what did
that say to you about intent?
Mr. Comey. Not, at least for our criminal investigation,
not particularly germane.
Chairman Chaffetz. Are you familiar--you're familiar--
there's a Web site. I mean, lots of government agencies have
Web sites. The State Department has a Web site, state.gov, and
they have a YouTube site. Videos that are uploaded to a YouTube
site, would those be considered Federal records?
Mr. Comey. I don't know.
Chairman Chaffetz. So they're paid for by Federal dollars,
they're maintained by Federal employees. Would that not be a
Federal record?
Mr. Comey. Yeah, I just don't know. I'm sure there's an
expert who could answer that in 2 seconds, but I'm not that
expert.
Chairman Chaffetz. Okay. We've kept you here a long time. I
want to follow up on that.
Is the FBI still investigating Hillary Clinton's aides?
Mr. Comey. No is the answer. The Department of Justice
declined on all of those who were subjects communicating with
her through that email system.
Chairman Chaffetz. What recommendations did you make about
her aides?
Mr. Comey. Same. Same. We didn't recommend that anybody be
prosecuted on those facts.
Chairman Chaffetz. And if you can help us understand who
precisely had been ruled out for prosecution, that would be----
Mr. Comey. Sure.
Chairman Chaffetz. Did you look at the Clinton Foundation?
Mr. Comey. I'm not going to comment on the existence or
nonexistence of any other investigations.
Chairman Chaffetz. Was the Clinton Foundation tied into
this investigation?
Mr. Comey. I'm not going to answer that.
Chairman Chaffetz. The server that was set up in her home
was originally set up by, you said, former President Bill
Clinton.
Mr. Comey. Correct.
Chairman Chaffetz. Do you know who paid for that?
Mr. Comey. I don't, sitting here.
Chairman Chaffetz. Okay. I'll allow some equal time now for
my colleague and friend, Mr. Cummings.
Mr. Cummings. I'm going to yield 2 minutes to--of my 3.43--
to Mr. Lynch.
Mr. Lynch. Thank you, Mr. Director. We're talking about
hacking. And so on this committee we're very much interested in
cybersecurity and we review a lot of the major hacks that are
going on. So just recently, and I would say in the last 18
months, we've had a major hack, February of 2016, at the
Department of Homeland Security and the FBI. We had a hacking
group, the SITE Intelligence Group, reported that a group
called Crackers With Attitude had hacked 9,000 employees' data
from the Department of Homeland Security, including names,
email addresses, locations, telephone numbers; also 20,000 FBI
workers.
We had another hack--direct evidence, obviously, of those--
another hack at OPM of 4.2 million current and former Federal
Government employees. Their information had been stolen,
including Social Security numbers, which were not redacted.
We had IRS in May 2015, millions--no, I'm sorry, 200,000
attempted and 100,000 were successful. We had--the State
Department announced a breach of its computer systems after an
infiltration forced the agency to temporarily shut down its
classification system. We had the United States Postal Service,
800,000 postal employees, 2.9 million customers.
The White House, The Washington Post reported back in--this
is back in 2014--that the White House computer was hacked. The
National Oceanic and Atmospheric Administration. I'm on another
committee for Financial Service. We had Verizon. UCLA Health
Systems, thousands and thousands and thousands of employees.
Anthem HealthCare. Sony Pictures. Staples. Home Depot.
JPMorgan. It gets into the millions. Community Health Systems.
Target. TJX.
So all these we have direct evidence, millions and millions
and millions of people, their accounts being hacked. Any direct
evidence that Hillary Clinton's emails were hacked?
Mr. Comey. No.
Mr. Lynch. Okay. I have no further questions. I yield back.
Mr. Cummings. Mr. Director, we are about at the end. I'm
going to do a concluding statement and then I think the
chairman will.
I want to, first of all, I want to go back to something
that Mrs. Watson Coleman said a little earlier. As an African
American man in this country, 66 years old, moving towards the
twilight of my life, we cannot allow Black men to continue to
be slaughtered.
This morning I woke up to my wife literally crying watching
the tape of this guy, Alton Sterling, in Baton Rouge. And then
she looked at the one, Philando Castile, near Minneapolis. And
I hope you watched them. There's something wrong with this
picture.
And don't get me wrong. I am all for, I've supported
police, I am a lawyer, and I know how important police are, and
I know there's so many great folks.
But, Mr. Director, if you do nothing else in your 2,000-
plus days left, you have got to help us get ahold of this
issue. It is so painful, I can't even begin to tell you.
And so I don't want--I've been fortunate in my life. I've
been very fortunate that I have not been harmed by the police.
But I've been stopped 50 million times.
Now, with regard to this hearing, I want to thank you
again. You know, as I listened to you, you said something that
I will never forget, and for some reason it gave me a chill.
You said there are two things that are most important to me,
two things. You said: My family and my reputation. My family
and my reputation.
And I don't know whether your family's watching this, but I
hope that they are as proud of you as I am, because you are the
epitome of what a public servant is all about, sacrificing over
and over and over again, trying to do the right thing,
sometimes coming under ridicule, but yet still doing the right
thing. And so I hope that they are proud of you.
The second thing is that no matter what has happened in
this hearing, I hope that you know that your reputation is
still intact.
And so I conclude by summarizing that I think some of our--
of some of our key findings today. First, the Director
testified that his entire team of 15 to 20 FBI investigators
unanimously agreed on the recommendation not to prosecute
Secretary Clinton.
Second, Director Comey made crystal clear that Republican
claims and some of the talking heads' claims of bias are
completely false. He testified that he would treat John Doe the
same way he would treat Hillary Clinton, that he was very
forceful on that point.
Third, on the claim that Secretary Clinton sent or received
emails that were marked as classified, that claim has now been
significantly undercut. Those documents were not classified and
those markings were not proper.
Finally, Republicans have repeatedly cried foul about a
double standard when it comes to Secretary Clinton's emails,
but Director Comey testified that the real double standard
would have been to prosecute her with this completely
inadequate evidence.
Again, Director, I thank you, but I thank somebody else. I
thank--and having practiced law for many years and having dealt
with the FBI on many cases, I want to thank the people who work
with you. Because it's not just--it's not just--this is not
just about you.
Mr. Comey. No.
Mr. Cummings. This is not just about Secretary Clinton.
When we are addressing you, there are a whole cadre of people
who give their blood, their sweat, and their tears to protect
us as Americans. And I just want to thank them, because
sometimes I think they are forgotten, unseen, unnoticed,
unappreciated, and unapplauded. But today I applaud them and I
thank you.
Thank you very much, and I yield back.
Chairman Chaffetz. And I thank the gentleman.
And I concur with the idea that every FBI agent I have ever
met has just been above reproach, and they make us proud. And
they work hard, they put their lives on the line, they serve
overseas, they serve domestically. Can't thank them enough for
what they do, and I hope that is part of the message that we
carry back.
I cannot thank you personally enough, you on a personal
level, for your accessibility, your ability to get on the phone
with me the same day that you make your announcement, and then
in rapid fire when I said to you, ``What day is best, we're
going to have to do this, so which day is best for you?'' and
you said Thursday, and here we are and doing it. I can't thank
you enough.
I wish all of the government employees would have that
attitude and approach, I really do, and I can't thank you
enough. I look forward to working with you and your staff as we
move forward in getting this documentation, things that you
can't share publicly, and others.
It is the intention of the committee to--I had told Mr.
Cummings here that we would come back after votes. Votes have
been pushed back now a bit. So what I'd like to do is to go
into recess for 5 minutes and then we will start with our
second panel.
The committee stands in recess till 5 minutes from now.
Thank you again, Director Comey.
[Recess.]
Chairman Chaffetz. The Oversight and Government Reform
Committee will reconvene and we will now recognize our second
panel of witnesses.
I'm pleased to welcome the Honorable Steve Linick,
inspector general of the United States Department of State.
Mr. Linick, it is our understanding that you are
accompanied by Ms. Jennifer Costello, assistant inspector
general for the Office of Evaluations and Special Projects,
whose expertise may be needed during questioning. So we will
also ask that she be sworn in during this time too.
We also welcome the Honorable Charles McCullough, III,
inspector general of the intelligence community at the Office
of the Director of National Intelligence.
We thank you for being here. We thank you for your
patience. It has been a long afternoon. But you've done some
exceptionally significant and important work, and we want to
hear it and understand it and digest it and ask questions about
it.
So pursuant to committee rules, all witnesses are to be
sworn before they testify. And as I said, we will also swear in
Ms. Costello. If you will please rise and raise your right
hands.
Do you solemnly swear or affirm that the testimony you are
about to give will be the truth, the whole truth, and nothing
but the truth?
Thank you.
Let the record reflect that all three of the witnesses did
answer in the affirmative.
Inspector General Linick and Inspector General McCullough,
you are both welcome to make oral remarks. We'll be very
generous with the time. And your entire written statement and
extraneous materials will be entered into the record as you so
wish.
But let's now go to Mr. Linick and recognize him.
STATEMENTS OF MR. STEVE LINICK, MS. JENNIFER COSTELLO, AND MR.
I. CHARLES MCCULLOUGH, III.
Mr. Linick. Thank you, Chairman Chaffetz. I'm pleased to be
here to testify about our report on records management and
cybersecurity at the Department of State. I have no opening
statements, and therefore am prepared to answer any questions
the committee has about the report and any other matters.
Chairman Chaffetz. Thank you, Mr. Linick.
Mr. McCullough, we'll now recognize you for as much time as
you'd like.
Mr. McCullough. Thank you, Chairman Chaffetz. It's----
Chairman Chaffetz. If you could both bring those
microphones, and it's a little uncomfortable, but bring them
right up there. There we go. Thank you.
Mr. McCullough. It's a pleasure to be here, and I'm here--I
don't have an opening statement either, so in the interests of
time, I'm here to answer your questions, and I'm very happy to
be here for you.
Chairman Chaffetz. Thank you.
I'll now recognize myself first.
I need you to summarize your findings as to what is
happening and not happening with classified information. And,
Mr. McCullough, my understanding is a referral was given that
kicked off this whole process. Why did you make that referral?
What was it that you were seeing that you think warranted an
investigation?
Mr. McCullough. We were--Chairman, we were assisting--I had
been asked to assist IG Linick in a review of classification
issues and other issues at the State Department. He requested
my office to help because of our expertise with classification
matters. And during our assistance with his particular review
he was doing, we reviewed 300 documents that had already been
released in the FOIA process for former Secretary Clinton's
emails.
We saw some classified material, one classified document
that had been released that wasn't properly redacted. My
inspectors noticed a second document that was classified but
was properly redacted. So we knew that in this sample of 300
that had already been published, that there were classified
documents in this set of emails.
So also during our review, looking at essentially the
internal controls of the email processing at the State
Department, again, the role that we played was to look at the
controls to determine whether or not the controls were
sufficient to spot intelligence community equities in
classified information.
So we had talked to some people there and were hearing
from--we heard from senior management officials that there
were--they had perused the documents, and they were under the
impression, one in particular, that there was a good deal of
classified information in these documents yet to be processed,
these 30,000 documents.
They also commented to us that they didn't feel as though
they had the personnel there, that there was a deficiency with
the personnel in terms of having the appropriate number of
people, appropriately cleared people, people with the
appropriate expertise to review these documents.
So I was looking at that. So we have--we have documents
that are already published, already processed through a FOIA.
One was not properly redacted and it was classified. And I'm
being told by the State Department information management
people that they have concerns that there's a good deal of
classified information in this set of documents.
And on top of that, I was advised by Mr. Linick's office
that this whole set of emails was present on a thumb drive in
Secretary Clinton's attorney's office. We knew nothing about
the clearances for counsel or for the law firm. And I was also
advised that this set of documents previously resided on a
private server, which at that point in time was with a private
company.
So as an IG, I was facing a situation where I had
classified information, it appeared to me, outside the care,
custody, and control of the U.S. Government.
In the intelligence community what you do when that happens
is you tell the security component of the agency who owns that
information. In this case, I told the agencies who owned the
information, I also told the ODNI's security component, the
NCSC, and I was advised to go directly to the FBI with a
referral with respect to my referral to them.
Chairman Chaffetz. So these emails, which are supposedly
all of Hillary Clinton's emails, they were sitting in a secure
or nonsecure facility at her attorney's office?
Mr. McCullough. I don't know anything about the security of
the facility at the attorney's office. I think--I had heard at
that point in time that there was a safe there, and I think
that it was represented----
Chairman Chaffetz. But it's not a cleared--not cleared by
the United States Government?
Mr. McCullough. Not to my knowledge.
Chairman Chaffetz. Mr. Linick, what was your finding here?
Mr. Linick. Well, we were not involved in any of the
classification determinations. I mean, our role in this was to
look at the FOIA process. We were asked jointly to look at the
FOIA process, whether improvements could be made.
And we made a number of recommendations to the Department
to make sure that classified information wasn't inadvertently
released in the context of doing the review for FOIA. That was
our role in this.
Chairman Chaffetz. Hillary Clinton had this convenient
email arrangement with herself. Have you ever seen anything
like that? Were there people that expressed concerns about
that? And what happened when these people expressed concerns?
Mr. Linick. Well, as we reported in our evaluation report,
we did interview a couple of individuals who were in the Office
of the Secretary, the computer division, SES/IRM, who said that
they approached the then-director of that particular office and
expressed concerns both about the server and about whether or
not her emails were being properly preserved under the Federal
Records Act.
And that individual, the director of SES/IRM, informed
those individuals that it had been approved by Legal and not to
mention it again.
Chairman Chaffetz. What does that mean, ``not mention it
again''? How did you read that?
Mr. Linick. You know, I can only report--I can only report
what the witnesses told us. We were not able to interview the
individual----
Chairman Chaffetz. Why not?
Mr. Linick. I'm sorry, I didn't hear the question.
Chairman Chaffetz. Why not? Why didn't you interview him?
Mr. Linick. Well, we asked to interview him, but he
declined to interview with us. So we were not able to get the
benefit of his perspective on it. So I'm really unable to
interpret what that means, other than just present the facts.
Chairman Chaffetz. And were you able to interview Hillary
Clinton?
Mr. Linick. We were not.
Chairman Chaffetz. Why not?
Mr. Linick. Well, we asked to interview Secretary Clinton.
We interviewed all of the Secretaries. We looked at five
Secretaries of State, going back to Madeleine Albright. And,
through counsel, she declined to meet with us.
Chairman Chaffetz. Did she indicate a reason why she would
refuse to meet with the inspector general?
Mr. Linick. Her counsel informed our staff that she had--
that all of the information about the email was on the FAQ
sheet published by her campaign.
Chairman Chaffetz. So they directed you to the campaign?
Mr. Linick. To the FAQ sheet.
Chairman Chaffetz. At the campaign?
Mr. Linick. On the Web site, yes.
Chairman Chaffetz. The campaign Web site?
Mr. Linick. I will have to check that. I'm not sure exactly
what Web site it was.
Chairman Chaffetz. Well, it's an important point, so please
check that.
Mr. Linick. Okay.
Chairman Chaffetz. I have gone over my time.
Let me recognize the gentleman from Massachusetts for 7
minutes in equal time, Mr. Lynch.
Mr. Lynch. Thank you, Mr. Chairman.
The chairman asked--I want to follow up on that question.
The chairman asked, have you ever seen anything like this
before? And I think, in the fullness of your response, I would
say you have.
As you indicated, you investigated, you reviewed the
records of five Secretaries of State. And here is part of your
report. It says here that your report identified more than 90
department employees under Secretary Powell and Secretary Rice
who used personal email accounts for official business.
And I will quote your report. The report says exactly this.
It says, ``OIG reviewed the Department email accounts of senior
department employees who served on the immediate staffs of
Secretary Powell and Secretary Rice between 2001 and 2008.
Within these accounts, OIG identified more than 90 department
employees who periodically used personal email accounts to
conduct official business, though OIG could not quantity the
frequency of this use.''
So I know this is sort of the second part of this hearing,
but that would have been good information to have at the first
one.
Also, Inspector General Linick, in May, you issued a report
on the management of email records by the Secretaries of State,
and your review found that Secretary Powell used a personal
email account for official business.
As a matter of fact, in his book, he lays it out. I'm not
going to repeat it again, but there's an interesting section
here where, you know, he'd get a little frustrated with the
State Department system, and he installed a laptop computer on
a private line and just started emailing folks. And, again,
Secretary Powell has later admitted to deleting all of his
emails.
So we got 55,000 emails from Hillary Clinton. How many did
we get from Secretary Powell?
Mr. Linick. I'm not aware of any from Secretary Powell.
Mr. Lynch. That would be zero.
Mr. Linick. I believe that's the case.
Mr. Lynch. Yeah. Okay.
Mr. Linick. Yes, he did use an aol.com account to transmit
email.
Mr. Lynch. Now, this is the--now, get this. So Secretary
Powell is testifying before the United Nations Security
Council, telling them they got--that there are weapons of mass
destruction and we need to go into Iraq. At that time, he is
using a personal email system. And he has deleted everything
that he had in that file, so we have nothing. And Hillary
Clinton is getting investigated.
You know, it just--let me ask you, have you followed up
with that and tried to get any information from Secretary
Powell?
Mr. Linick. Well, we haven't. The Department, though, has
asked for information from Secretary Powell, and I don't
believe they have received it yet. But you will have to ask the
Department about that.
Mr. Lynch. When did they--do you have any knowledge of when
they asked?
Mr. Linick. You know, I'd have to--it's in our report, the
exact date. I don't have it off the top of my head.
Mr. Lynch. I do. October 21, 2015.
Mr. Linick. Perfect.
Mr. Lynch. The State Department sent Secretary Powell a
letter requesting that he contact his email provider, AOL, to
determine whether any of his emails could still be retrieved.
Is that right?
Mr. Linick. That's right.
Mr. Lynch. Okay.
And, in your report, you note that, as of May 2016, the
Department has not received a response from Secretary Powell or
his representative. Is that still correct?
Mr. Linick. To the best of my knowledge, that's correct.
Mr. Lynch. Okay. So we got nothing there. What are we doing
about that?
Mr. Linick. I mean, it's up to the Department to get that
information pursuant to NARA regulations. They are on the hook
to recover records that are lost from the State Department,
and, through that letter, they're trying to fulfill that
obligation.
Mr. Lynch. So there's a huge gap.
We got the goose egg from Condoleezza Rice too. She gave us
nothing, in terms of emails. So we have 8 years of silence from
the Secretaries of State.
Mr. Linick. Well, the difference with--we don't--
Condoleezza Rice, we believe, wasn't using email to conduct
State Department business.
Mr. Lynch. But her staff were.
Mr. Linick. Yes.
Mr. Lynch. She's got a bunch of staffers----
Mr. Linick. Yes.
Mr. Lynch. And she served in 2001. This was not 1901. So
there were emails. She acts like there were no emails in 2001.
There were. We just don't have any, not from her.
Mr. Linick. We did find that her staff----
Mr. Lynch. I just think there's a double standard going on
here. People have talked about a double standard all day. How
come these folks gave us the goose egg? We got zero, We got
silence for 8 years from our Secretaries of State, and no one
is going after them. They don't get subpoenaed up here. I
haven't seen them at these hearings.
Chairman Chaffetz. Will the gentleman yield?
Mr. Lynch. The gentleman will yield, yeah, sure.
Chairman Chaffetz. The inspector general was able to
interview them and talked to them, and they did look at them.
Mr. Lynch. And they got nothing. They got the--they got
the, you know, ``Talk to the hand.'' That's what they got. They
got zero.
Chairman Chaffetz. Would the gentleman yield?
No, he said that she did not use email.
Mr. Lynch. They just told--but they never subpoenaed or
anything.
Chairman Chaffetz. But if you ask Mr. Linick what happened
with her aides, I'd like him to answer that question.
Mr. Linick. So we did talk to Secretaries Rice and Powell
and all the other Secretaries. Secretary Rice told us that she
didn't use email----
Mr. Lynch. And you just take that at face value?
Mr. Linick. Well, we actually tested that. We looked at
archives. We didn't find--I mean, we tried to corroborate that.
We did not find any evidence that she used----
Mr. Lynch. What about her immediate staff?
Mr. Linick. Well, we did conclude that her immediate staff
used email to conduct official business.
Mr. Lynch. Yeah.
Mr. Linick. So, we did.
Mr. Lynch. Okay. So, you know, that's interesting. Do we
have their emails?
Mr. Linick. I'd have to check on that. I do know that we,
in the course of our work, we bumped into a number of emails
that--classified emails that staff sent to personal accounts.
And we did write up a memo describing that and providing that
to the Department and asking the Department to take appropriate
action and make sure any of the archives--you know, the
archives didn't have classified email in them.
So we did take--same thing with Secretary Powell when we
found the two classified emails that were sent to him.
Mr. Lynch. Okay.
Mr. McCullough, what do you think about this?
Mr. McCullough. With regard to?
Mr. Lynch. The lack of response by Secretary Powell, 4
years, and then getting zero from Condoleezza Rice as well.
Mr. McCullough. My office's role here was extraordinarily
narrow. When we came in, IG Linick's office was doing this
review. It was limited to the past five Secretaries. We don't
have the resources. The tasking, I believe, from Congress----
Mr. Lynch. We just spent $7 million investigating Secretary
Clinton. We don't have the resources to, you know, to----
Mr. McCullough. I'm talking about my office. The tasking
from Congress was to determine whether classified information--
one of the taskings that I believe Steve received was to
determine whether classified information had traversed
nongovernmental systems at the State Department. His office had
scoped that down to the five past Secretaries.
When I came in, we thought it was the easiest thing and,
quite frankly, we thought it would be the fastest thing to do,
since they already had 30,000 documents they were processing
for a FOIA, to determine whether or not they had sufficient
internal controls in place to spot, identify classified
information, identify classified equities.
Mr. Lynch. Can we subpoena AOL and just say, you know, this
was a private account that the Secretary of State during a very
important part of our country's history--and we want those
emails, go get them, rather than just waiting for--and, look, I
have great admiration for Secretary Powell. I do. But, still,
that's information, in fairness, that we should have.
Mr. McCullough. I'm trying to explain that our--my office's
role and my role in the review was narrowly tailored to
determine whether or not classified information--we didn't
have--my office doesn't have the resources to determine, with
the thousands of employees at the State Department, who was
trafficking in classified information on personal systems and
who was not.
He already had 30,000 documents right there that were going
over that----
Mr. Lynch. You mean Secretary Clinton's documents?
Mr. McCullough. That's correct--that were going through a
FOIA process. So, from an IG perspective--and it was more
efficient for us--we thought we would look at the processes
being used by the FOIA managers at the State Department. And we
made recommendations to them that----
Mr. Lynch. Did you recommend that we go after Secretary
Powell?
Mr. McCullough. No. The recommendations we made were--first
of all, they asked us, can you please give us--these are the
people who were actually doing the review. They felt as though
they didn't have sufficient expertise there to spot
intelligence equities. And so we recommended that they include
intelligence people for this type of FOIA review, this
particular FOIA review.
We also recommended that they get on--they were doing this
review on a Secret-level system, a SIPRNet-level system, and
because we had been told by some of the State officials that
they thought there was a good deal of classified information in
the emails, we recommended that they perform this processing on
a Top Secret/SCI-level system, a JWICS-level system.
Mr. Lynch. But that went all over--that went completely
around Secretary Powell's information, because he was giving us
nothing. They had only Secretary Clinton's stuff, so they--this
review of five Secretaries of State was heavily focused on
Secretary Clinton because of the complete absence of any other
information.
Mr. McCullough. I would have to defer to IG Linick with
respect to any of the other Secretaries in terms of the
availability of emails on personal systems.
Mr. Lynch. Okay.
I'll yield back. I'm way over time. Thank you, Mr.
Chairman.
Chairman Chaffetz. Thank you.
I now recognize the gentleman from South Carolina, Mr.
Gowdy, for 5 minutes.
Mr. Gowdy. Thank you, Mr. Chairman.
Inspector General Linick, did you desire to interview
Secretary Clinton as part of your investigation?
Mr. Linick. Yes, we did.
Mr. Gowdy. And were you able to do so?
Mr. Linick. No, we were not.
Mr. Gowdy. And how was it communicated to you that you were
not going to be able to do so?
Mr. Linick. Through her counsel. David Kendall had sent a
letter to one of the team leaders on the report.
Mr. Gowdy. Is that letter available for Congress to
inspect?
Mr. Linick. You know, I'll go back and check, but I'll have
to get back to you on that. I mean, it certainly exists.
Whether if it's legal to provide it to you, sure.
Mr. Gowdy. Well, let's do this then. Let's fast-forward and
let's assume that you were able to interview her. Why did you
seek to interview her? And what questions, specifically, would
you have asked?
Mr. Linick. Well, we were--the focus of our report was not
about classified information. The focus of our report was how
the Department over the past 20 years addressed records
preservation and cybersecurity.
And, you know, we were looking at--we were looking at
whether or not--there was a rule the Department issued in 2005
requiring that employees use departmental systems. She used a
nondepartmental system, her server, to conduct official
government business. And we wanted to ask her questions about
that--whether she had approval, who approved it, and so forth.
We also--so we wanted to get her perspective on those
issues, among others.
Mr. Gowdy. So let me see if I have this right. The
inspector general for the State Department wanted to interview
a former Secretary of State.
Mr. Linick. That's correct.
Mr. Gowdy. And that request was declined.
Mr. Linick. Yes.
Mr. Gowdy. Well, at first blush, it sounds like your
question was a reasonable one. You want to make sure that the
information is safeguarded and protected and archived
consistent with law. So I wonder why you weren't able to
interview her. Were you given a reason?
Mr. Linick. Just the reason that I articulated before.
Other than that, I would be speculating.
Mr. Gowdy. What other questions--and if you need to ask any
of the wonderful folks with you--what other questions would you
have sought to ask the former Secretary of State?
Mr. Linick. Well, we also looked at records preservation.
And the rules required a certain--that she print and file her
emails and that she, you know, make sure that they're part of
the agency recordkeeping system. We wanted--we would've asked
her about that.
We would've asked her about some of the attempts to hack
her system, at least as expressed by her--some of her staff,
which we have identified in our report. We probably would've
asked her about that.
So those are the kinds of things, her state of mind and so
forth.
Mr. Gowdy. I don't think you were in the room for Director
Comey's testimony, and I don't know whether or not you had
access to it in the back.
Are you familiar with his testimony that convenience was
one of the intentions the former Secretary had in having this
unusual email arrangement with herself?
Mr. Linick. No, I don't recall that. But I did watch parts
of the testimony.
Mr. Gowdy. All right. He did cite convenience as one of the
factors.
Do you know when her emails were returned to the State
Department?
Mr. Linick. They were returned 21 months after she left the
Department.
Mr. Gowdy. What was going on the second month after she
left that made it inconvenient to return them then?
Mr. Linick. I wouldn't be able to comment on that.
Mr. Gowdy. How about the fourth month?
Mr. Linick. Again, I just don't know.
Mr. Gowdy. How about the 1-year anniversary?
Mr. Linick. Same answer.
Mr. Gowdy. Do you know what possibly could have inspired
her to begin searching for those records?
Mr. Linick. Well, she did receive a request from the
Department to return records in accordance with their
obligations under the Federal Records Act, and there are
regulations.
Mr. Gowdy. But that obligation didn't manifest itself 21
months later. That obligation was present the day she left
office.
Mr. Linick. And one of our findings was, along with
Secretary Powell, that both of them failed to surrender their
records, their personal records containing government business
when they left the Department, thus depriving the Department of
having those records as part of the agency recordkeeping
system.
Mr. Gowdy. And I assume you probably would've asked former
Secretary had you had an opportunity to do so why it took 21
months to return public records.
And just so there's no--I mean, nobody likes Congress. I
get that. We're not sympathetic. But there are FOIA requests
that would've been received by the State Department during that
time period, right?
Mr. Linick. Possibly.
Mr. Gowdy. How would those FOIA requests have been
responded to and complied with if they didn't even have the
records?
Mr. Linick. Well, sir, as we identified in our previous
report on FOIA, it would've been difficult if the records are
not part of the agency recordkeeping system to respond to FOIA.
Mr. Gowdy. I'm out of time, but I know the chairman will
give me one more question since he's given a lot more than one
more question to other folks.
I want you to assume an absurd hypothetical, that the
Secretary of State has exclusive use of personal email and that
she is corresponding with someone who also uses personal email.
Are you with me?
Mr. Linick. I'm with you.
Mr. Gowdy. How in the world is the State Department ever
going to capture that email?
Mr. Linick. It would be--and this is something we addressed
in our FOIA report. It would be--it would be difficult
because----
Mr. Gowdy. It'd be a challenge, wouldn't it?
Mr. Linick. It would, because only records under the
agency's control are subject to FOIA. So, in other words, the
Department wouldn't be able to reach in, necessarily, to a
private account. So it----
Mr. Gowdy. Well, you wouldn't even know about it, would
you? If it's personal-to-personal, how would you know about it?
Mr. Linick. You wouldn't know about it.
Mr. Gowdy. All right.
Well, I'm barely out of time. I thank the chairman.
Chairman Chaffetz. I thank the gentleman.
I will now recognize Mr. Cummings for 7 minutes.
Mr. Cummings. Inspector General Linick and Inspector
General McCullough, on March 9, 2016, seven committee ranking
members of the United States Congress from the House and the
Senate sent you a letter. I signed this letter, along with the
ranking members of both the Senate and the House Intelligence
Committees, the House Foreign Affairs Committee, the Senate
Foreign Relations Committee, and the House Armed Services
Committee, and the Senate Judiciary Committee.
Are you both familiar with the letter?
Mr. McCullough. Yes, sir.
Mr. Cummings. Are you, Mr. Linick?
Mr. Linick. Yes, I am.
Mr. Cummings. The letter asked you 13 questions. To date,
neither of you has answered one single one of those questions.
Why is that?
Mr. McCullough. We have responded to the letter, and, in
the response to the letter, that has led to several individual
Member meetings, and we have offered Member meetings to all the
Members who had concerns so that we could address them. And the
Member meetings I have had directly addressed those questions.
And so, again, I would re-extend that offer to you, Ranking
Member Cummings.
Mr. Cummings. Well, let me, let me, let me--on May 16,
2016, Mr. McCullough, you provided a response that was written
in such a way that it was overclassified, at the Secret level.
Was it really necessary to classify your response that way?
And why did you write a response that could be publicly--why
didn't you just do one that could be publicly available?
Mr. McCullough. It wasn't overclassified, Ranking Member
Cummings. There was a lot of concern by Members who did not
have access to certain of the emails. And I wanted to make sure
that anyone receiving and reading that letter would understand
that, if I was coming to brief, I wouldn't be able to brief on
the one set of emails that are ORCON with one of the agencies.
Mr. Cummings. All right.
Now, Mr. Linick, you responded on May 25, 2016. You had a
short letter too.
Mr. Linick. I did.
Mr. Cummings. Wow. Like Mr. McCullough's letter, it failed
to answer any of the specific questions from the ranking
members.
You both received followup letters, again posing the same
13 questions. Neither of you responded to those letters.
And so I guess your answer is the same. Did you all talk to
each other about how you all were going to coordinate and not
respond to Members of Congress, ranking members at that?
Mr. Linick. Well, the underlying issue in those letters was
accusing our office of bias. And I think we responded in our
letter that we conduct ourselves with the highest integrity,
and I could vouch for my staff. We are obviously focused on
where the facts lead, we're independent, and we've worked very
competently on our reports.
And I think our recent report, the evaluation on records
preservation and cybersecurity, speaks for itself. No one has
contested or challenged our findings or recommendations. And,
in fact, the State Department has accepted the findings and
recommendations.
And we explained that in the letter. We explained that we
have had bipartisan contacts with the Congress. So----
Mr. Cummings. Well, let me ask you some questions, because
I'm going to run out of time.
Other than through official press statements, have you or
anyone in your office, with the knowledge of the office,
provided any information regarding the review of Secretary of
State Clinton's emails to the news media?
Mr. Linick. Well, we, like every other IG office, have a
press office. And when we get press inquiries, we respond to
them. We respond to them appropriately. We would never----
Mr. Cummings. So the answer is yes.
Mr. Linick. --we would never release--well, of course, just
like every other IG office. If someone asks about our findings
or is misinterpreting, you know, what we're doing, we'll
respond to it.
But we have never released any confidential information or
have been inappropriate.
Mr. Cummings. Okay.
Have you or your offices given any information, written or
oral, regarding the review to the Republican congressional
Members or staff that your offices have not made available
simultaneously to the Democratic congressional Members or
staff?
Mr. Linick. No. We are bipartisan, always.
Mr. McCullough. We've been bipartisan, bicameral----
Mr. Linick. Absolutely.
Mr. McCullough. --at every step with our congressional
notifications.
I believe there was a blip on one occasion. It was
unintentional, where one side--and I think there was a briefing
where the Members or the staffers had requested the other side
not be there. We briefed one side, and then offered the exact
same briefing to the other.
But, otherwise, we've made every attempt to be bipartisan
and bicameral with all of our reporting and all of our
briefings. We've done a number of briefings.
Mr. Cummings. The letter says, and I quote--this is the
same letter that we sent you. It says, ``Last week, a potential
whistleblower in the office of the State Department inspector
general publicly accused the office of having an anti-Clinton
bias.''
What are the policies and procedures for employees of your
offices to report concerns regarding ongoing investigations,
including concerns of bias within your offices?
Mr. Linick?
Mr. Linick. Well we're--if there are any issues about
conflicts of interest, we would--I mean, as a matter of--as a
matter of course, we would take action if there was an issue.
But let me just say that I've been--prior to my having
become an IG for the last 6 years, I was a career prosecutor
for 16 years. And the principles of integrity and honesty are
of utmost importance to me and to my work.
So, you know, these allegations are entirely unfounded. Our
work speaks for itself. And we will follow the facts wherever
they lead, and partisan politics has no bearing on what we're
doing.
Mr. Cummings. Well, this committee has a reputation for
going after people who interfere with whistleblowers. And
that's why I have to ask you. This was a whistleblower who----
Mr. Linick. An anonymous whistleblower.
Mr. Cummings. Well, he publicly accused the office.
Mr. Linick. It was anonymous. We have no idea who or what.
But these are unfounded allegations. This was before our report
was issued. I think our report speaks for itself.
Mr. Cummings. Let me ask you this--did you have a response
to that, Mr. McCullough?
Mr. McCullough. I would echo----
Mr. Cummings. And do it briefly, because I've got one more
question.
Mr. McCullough. I would echo IG Linick's response.
Mr. Cummings. Tell me something. What happens when you all
disagree on things that should be classified?
One of the things that bothers me about this whole thing is
this retroactive classification. I mean, people on this
committee may have committed a crime--I'm just telling you--by
releasing things that were made retroactively classified. I
mean, how do we deal with that? What can we do to try to clear
that up?
And what happens when you all disagree with each other?
Mr. McCullough. So in terms of when our departments or
whether when we disagree as IGs?
Mr. Cummings. Yeah, I mean--yeah, when you disagree as IGs.
In other words--in other words, your departments--one of your
departments says there is something that should be classified,
the other one says it shouldn't, didn't deserve that kind of
classification. I mean, what happens then? Is there an
arbitrator or whatever? Because this stuff leads to crimes, as
you well know.
Mr. Linick. Well, we don't make classification
determinations. We don't----
Mr. Cummings. Well, what can we do to help with that?
Mr. McCullough. So, as IGs, we don't make classification
determinations.
Mr. Cummings. Right.
Mr. McCullough. You're talking about when a department
disagrees with another department.
Mr. Cummings. Yes.
Mr. McCullough. That happened in this case. So you had the
State Department--and I did hear Director Comey's testimony
with respect to this up-classification. And that was relative--
despite my years in the Federal Government, that was a
relatively new term to me. I think that is a fairly common
occurrence, a fairly common occurrence in the State Department.
What I can say is that the emails that we reported to
Congress in the congressional notification, we focused on
those. Those were not up-classified, sir. Those were classified
when they were sent and when they were received. So we were
focusing on those.
Now, if there's--there is a disagreement, and I think what
you're getting to is there was this parallel reporting issue
where I believe there was an email or two, the State Department
thought that they had received it from a different source. What
I can tell you there is the agency that we dealt with and
facilitated the classification on that, that's one of the
agencies who completed declarations for us. And they disagreed
with the supposition that the information came from a parallel
source. They believe that that information--they are the
information owner for that information.
Some of it was very specific. I can't get into why it was
their information in an open forum here. But some of the
information was specific enough to tell where it would've come
from.
Mr. Cummings. Are you all going to answer the 13 questions?
Mr. McCullough. I think we'll get together--if you're not
satisfied with where we are right now----
Mr. Cummings. No, I'm not satisfied. I'm not.
Mr. McCullough. --we will come and brief you in person, if
you like, or----
Mr. Cummings. Yes, I would.
Mr. McCullough. --I will get together--yes, sir.
Mr. Cummings. Thank you. I appreciate it.
Mr. McCullough. Okay.
Chairman Chaffetz. And just as we recognize Mr. Meadows, I
think what the committee should look at, in a bipartisan way--
if we do it right, we do it together and do it united and do it
unanimous if we can. I am very intrigued by what Senator
Patrick Moynihan did about 20 years ago. Because, in a
bipartisan way, they issued a report about classification. And
it was done so--and, basically, the synopsis was: Everything is
overclassified, and if everything is classified, then nothing
is classified.
And I do agree and concur with the gentleman from Maryland
here, my friend, that the consistency, the human error, the
problems that this creates, with the mass amount of data and
information and the millions of people that have classified
clearance, it does create a problem. And I think a bipartisan
commission, something similar to what Senator Moynihan
spearheaded 20-plus--20 years ago or so, is something that we
should look at.
Mr. Cummings. That's a good idea, Mr. Chairman.
Chairman Chaffetz. I'd ask unanimous consent to enter into
the record the two inspector general reports that are under
discussion today.
Without objection, so ordered.
Chairman Chaffetz. We'll now recognize the gentleman from
North Carolina, Mr. Meadows.
Mr. Meadows. Thank you, Mr. Chairman.
Mr. Linick, let me come to you, and feel free to have Ms.
Costello jump in if she can illuminate the answer better.
On March of 2015, Secretary Clinton publicly said, and I
quote, ``I opted for convenience to use my personal email
account, which was allowed by the State Department,'' close
quote. She went further to say, ``The laws and regulations in
effect when I was Secretary of State allowed me to use my email
for work. That is undisputed,'' close quote.
Are those accurate statements?
Mr. Linick. Well, I'm--I hesitate to comment on public
statements, but I will say that our report shows that----
Mr. Meadows. Well, we're in a public forum now, and,
obviously, a lot's been said about it. Are those accurate or
not?
Mr. Linick. Well, I can tell you our report said that she
didn't have approval from senior officials at the Department,
and we don't believe it was permitted, both under the rules and
none of the officials, the senior officials who were there at
the time, gave her approval or were even aware that she had a
server, according to them.
Mr. Meadows. So let me see if I can digest that long answer
into a very short, concise statement. It is not an accurate
statement.
Mr. Linick. Again, she didn't have approval. So----
Mr. Meadows. Okay.
So, Ms. Costello, would she have required approval in order
to be able to use a personal email, according to regulations?
Would she have required that kind of approval?
Chairman Chaffetz. Ms. Costello, we have to--I need you to
bring your chair up and sit next to Mr. Linick, if you would,
because we need to be able to capture that for our recording
purposes.
She was sworn.
Ms. Costello. I was.
Chairman Chaffetz. Yes.
Ms. Costello. Can you hear me?
Chairman Chaffetz. Yes.
Ms. Costello. Okay.
So, in order to exclusively use personal email for official
business, Secretary Clinton would have required approval.
The reason we know this is because the officials we
interviewed at the Department, both in the Office of Diplomatic
Security and the Office of Information Resource Management,
told us that. And in telling us that, they were relying on a
department policy that was put in place in 2005, which says
that day-to-day operations must be conducted--I'm paraphrasing,
but must be conducted on authorized information systems.
And so the implication there is any exclusive use would be
a day-to-day operation and shouldn't occur without approval.
Mr. Meadows. So that created a red flag for your
investigative team.
Ms. Costello. As we reviewed the policies that were in
place by the Department, yes. It was something that we
considered very carefully in evaluating the evidence that we
obtained.
Mr. Meadows. So her statement that this is undisputed would
not be accurate. So I won't make you make a reference to the
rest of it, but obviously it's disputed if we're disputing it
here today.
Ms. Costello. I would say that, in relying on the
interviews that we conducted with the officials at the
Department who would be the people responsible for implementing
these policies, the answer is, yes, it's disputed.
Mr. Meadows. So they would dispute it.
Ms. Costello. They did.
Mr. Meadows. Okay. And they did, all right, for the record.
So let me go on a little bit further. Because who--so you
mentioned who had the obligation. I guess, how difficult would
it be to comply with the law, the Federal Records Act, if you
are using your personal email account? What would you have to
do?
Ms. Costello. Well, I want to draw a distinction here,
because what we were just talking about were the cybersecurity
provisions at the Department, and now we've switched a little
bit----
Mr. Meadows. But to Federal records, wouldn't she have had
to have printed out those emails and kept those to be in full
compliance with the regulation?
Ms. Costello. Yes. During her tenure, folks in the Office
of the Secretary, in order to comply with email records
preservation and management policies at the Department, needed
to print and file those emails. Now, you can----
Mr. Meadows. So, out of the 30,000 emails that we've had
testimony earlier today, how many printed copies of emails--of
her emails did you find?
Ms. Costello. I don't know. But I can say that we did find,
as we reviewed other folks' emails and hard-copy files, we did
find some examples of Secretary----
Mr. Meadows. So in more than a thousand printed?
Ms. Costello. I'm sorry, I can't hazard a guess on that. I
really don't know.
Mr. Meadows. All right. So can we get copies of all those
printed emails through FOIA or through subpoena?
Mr. Linick. Well, those--those emails----
Mr. Meadows. Because that's the whole reason for the
Federal Records Act, is so it would be--so you're suggesting
that there is a universe of printed-out emails that we can
find.
Ms. Costello. To the extent that other folks who Secretary
Clinton emailed did go ahead and print and file----
Mr. Meadows. Oh, so you're saying she didn't print any of
them out.
Ms. Costello. Right, but they do exist.
Mr. Meadows. Oh, okay. That's a big difference. So she made
no printed copies in order to comply with the law. That was
somebody else perhaps printing it out and she happens to be
communicating with them.
Ms. Costello. Correct. And I'm sorry if I wasn't clear
before.
Mr. Meadows. Okay. No, that's good.
Ms. Costello. What----
Mr. Meadows. I'm out of time.
Ms. Costello. --I'm saying is that they exist in the
Department. A few here and there do.
Mr. Meadows. All right.
I will yield back. Thank you, Mr. Chairman.
Chairman Chaffetz. Thank you.
And I think the point that certainly Mr. Gowdy was making
is, if those emails on a private server were mailed to somebody
else who is not involved in the government, then there is no
printed-out copy as required.
We'll now go to Mr. Walberg of Michigan.
Mr. Walberg. I thank the chairman.
And thanks to the panel for being here.
Mr. McCullough, what is the significance of special access
programs?
Mr. McCullough. It is the highest level of sensitivity in
terms of classification information in the Federal Government.
Mr. Walberg. The highest level, so beyond classified,
Secret----
Mr. McCullough. It's the most sensitive information the
government has, sir.
Mr. Walberg. How does that classification then relate to
the other categories classified as information such as
Confidential, Secret, and Top Secret? In other words, why is it
determined to be the most sensitive?
Mr. McCullough. So you have several levels of
confidentiality classification in the Federal Government.
You're starting with Confidential. That's the parenthesis, C,
close parenthesis. That's the lowest level of classification.
You go up there from the--to the Secret level, and then you go
to the Top Secret level.
And then each of those levels may have handling caveats
that are trigraphs, such as ORCON, SCI, and what you're asking
about is SAP. So the SAP information would be characterized as
the most sensitive--among the most sensitive information that
we have in the government in terms of classification.
Now, you classify things based upon the relative likelihood
of damage to the national security if the information happens
to be released. That's an assessment that each person makes in
OCA. That's an original classifying authority. They make that
assessment when they do classify something. I'm talking about
original classification.
Mr. Walberg. Okay.
Mr. McCullough. Now, derivative classification, you're just
taking it straight from the OCA's classification and carrying
it over. You don't question whether or not the OCA was correct
in calling it Secret, SI; you bring it over.
Mr. Walberg. Okay.
On January 19, 2016, you wrote to the chairman of the
Senate Intelligence Committee--or Intelligence and Foreign
Relations Committees, saying that the State Department
subsequently announced later, as a result of that letter, that
it would withhold seven email chains because they referenced
materials on special access programs.
In your letter, you said you had not received a declaration
from a second intelligence community element as of that time.
Did you ever receive one?
Mr. McCullough. Yes, sir. That intel element provided their
declaration--I believe two declarations directly to the
Congress via their own IG, via their agency IG.
Mr. Walberg. Is it your experience that senior government
officials are often unaware of the significance of special
access program designations?
Mr. McCullough. No, sir. That's not my experience.
Mr. Walberg. So it's a normal and expected understanding--
--
Mr. McCullough. Absolutely.
Mr. Walberg. --that senior officials should have.
Mr. McCullough. Absolutely.
Mr. Walberg. Let me ask both of you then, have either of
you in your careers ever seen a situation before where special
access program information was discussed over unclassified
systems?
Mr. McCullough. No. I can't recall--I've had a fairly
extensive career in the IG world. I was an FBI agent for 10
years, I was the head of investigations at the NSA for 8, and I
have been the IC IG for about 5. I can't recall a situation
where I have come across this particular situation, no.
Mr. Walberg. Mr. Linick?
Mr. Linick. Well, I haven't, but I haven't been in this--I
haven't really been working in this space, in terms of, you
know, I don't have a lot of opportunity to assess whether
others are disclosing special access information. But I haven't
seen it in my career.
Mr. Walberg. What repercussions, Mr. McCullough, come
from----
Mr. McCullough. Well--and I'll just qualify my answer.
That's not to say it hasn't happened. We do get--in the intel
community, when you're dealing with intel information every
day, especially for the agencies we call the big six, the
purely intel agencies, we have employees who are dealing with
only classified information all the time, and so there are
issues we run into.
And in terms of the consequence for that, I couldn't
prejudge what a consequence would be in terms of a security
process or an administrative--a misconduct process. But it
certainly would be something where the security elements for
the intelligence agencies would look at readjudicating the
clearance, and it would be a significant factor in the
readjudication.
But it's a case-by-case basis for these types of things.
There are a lot of factors involved.
Mr. Walberg. But there would be repercussions, undoubtedly,
as a result of----
Mr. McCullough. Yes. There would be consequences, yes.
Mr. Walberg. Okay. Thank you.
Chairman Chaffetz. I thank the gentleman.
Mr. Walberg. I yield back.
Chairman Chaffetz. I'd ask unanimous consent to enter into
the record a series of memoranda from both the Department of
State inspector general and the ODNI inspector general.
And, without objection, so ordered.
Chairman Chaffetz. We'll now recognize the gentleman from
Georgia, Mr. Carter, for 5 minutes.
Mr. Carter. Thank you, Mr. Chairman.
And thank you, gentlemen, for being here.
Mr. Linick, in May of 2016, you submitted a report on the
Secretary of State's email records management. And you referred
to two separate incidents in 2011 in which then-Secretary
Clinton's private email server was targeted in hacking attack
attempts.
In January of 2011, there were two instances where a non-
State Department employee notified Clinton's deputy chief of
staff that he had to shut down her server because he believed
someone was trying to hack in. The next day, then-Secretary
Clinton's deputy chief of staff for operations, Huma Abedin,
told senior staff not to email sensitive information over
Clinton's server.
Is that true?
Mr. Linick. That's what we reported, and that's contained
in the documents we reviewed.
Mr. Carter. Okay.
On May 13, 2011, after two of Secretary Clinton's immediate
staff discussed Clinton's concern that someone was hacking into
her email after she received a suspicious link, Secretary
Clinton received another email with a suspicious link from an
under secretary. She replied to the email directly, asking if
the under secretary had really sent that email, since she was
worried about opening it.
Is this best practices? Is this the way you're supposed
to--you know, I'm no expert on the Internet or anything, but my
kids always told me, no, don't open it.
Mr. Linick. Well, I can't speak to what's best practices in
that community. I mean, I think I probably would----
Mr. Carter. But is that the way you should respond to a
suspicious email, especially after you've already had staff
warning you that someone may be hacking into it and that you're
concerned that it's being hacked into?
Mr. Linick. Well, what we reported is that, under State
Department rules, you're supposed to report when you believe
you've been hacked. And that was where they fell short. They
didn't report those.
Mr. Carter. So they did not report. Even though Ms. Clinton
believed that she was being attempted to be hacked into, she
did not follow State Department rules and report it.
Mr. Linick. That's correct.
Mr. Carter. This is Hillary Clinton we're talking about,
the Secretary of State?
Mr. Linick. That's right.
Mr. Carter. That's the one? Okay. I just want to make sure.
By responding to that email, do you think that Secretary
Clinton may have allowed an attacker to--a hacker to gain
access to her emails?
Mr. Linick. I really would have no knowledge and ability to
answer that question, whether she may have allowed an attacker.
Obviously, it's a risk. And that's why it's required to be
reported, because of the risk. It's a risk.
Mr. Carter. I was about to say, that's why we have the
policy in place.
Mr. Linick. It's a risk.
Mr. Carter. Sure, it's a risk.
Mr. Linick. Yeah.
Mr. Carter. And I guess that's where we get the ``extremely
careless,'' whatever it was.
Anyway, Mr. Linick, at any time during your investigation,
did you see evidence--and this is important. Please hang with
me here, okay? At any time during your investigation, did you
see evidence of Clinton's staff knowing that her server, the
server, was unsecure yet they still sent sensitive information
over it?
Mr. Linick. I'm not able to say that. We know from the
records--we were not able to interview a number of folks, but
we know from email records that there was discussions about the
server. Whether they knew it was secure or unsecure, I don't
have any evidence about that.
Mr. Carter. No evidence about it.
Mr. Linick, if Hillary Clinton's private email server was
as secure as she has time and again assured us that it was,
saying it was safe and secure, then why would her staff be so
concerned?
I mean, you stated in your report, her staff showed a
concern, don't use--don't open this email, don't use this,
because we think you're being hacked into. Yet we have been
told by her that it was perfectly safe and secure. Isn't that
true?
Mr. Linick. We weren't able to interview her staff, so I'm
not able to comment on what they were thinking at the time.
Mr. Carter. You know, I think, Mr. Linick, that it's pretty
clear that the Secretary actively jeopardized the network and
national security, as well. I think any rational person would
understand that this is what happened.
I hope that you'll continue to investigate this. And I hope
that you will report back to Congress any information that you
might get.
Mr. Chairman, I'll yield back.
Chairman Chaffetz. I thank the gentleman.
We'll now recognize the gentleman from Wisconsin, Mr.
Grothman, for 5 minutes.
Mr. Grothman. Yeah, I'd like to follow up a little bit more
on these emails, okay?
I mean, you guys were investigating the Benghazi thing. A
subpoena was issued for the Benghazi documents. Could that have
included documents that were emails that she sent or received
on her private server?
Mr. Linick. We didn't investigate Benghazi.
Mr. Grothman. Oh, I'm sorry, I'm sorry.
Mr. McCullough. Yeah, we weren't involved in Benghazi
either.
Mr. Grothman. Right, right, right. But do you believe on
her private email there could have been documents related to
Benghazi?
Mr. Linick. I would be speculating. I don't have an answer
for that.
Mr. Grothman. Is it possible? It's her private email.
Mr. Linick. Again, that wasn't part--I----
Mr. Grothman. Okay. Let me put it this way.
Mr. Linick. I don't know.
Mr. Grothman. With regard to freedom of information, you
have determined that there is no question that she had work
emails on her private server, right?
Mr. Linick. Yes, that's true.
Mr. Grothman. That's incontrovertible, okay? If she had
work emails on there, whatever they were about--might have been
about Benghazi, might have been about the Clinton Foundation
and, you know, whatever's going on there that maybe wasn't
right--how long was she supposed to hold on to the emails, the
work emails, after she left her office?
Mr. Linick. Well, as we stated in our report, the rules
require that she surrender official records upon her departure.
The same rules applied to Powell, as well. And so, at that
time, when she left the Department, those emails should've gone
back into the agency recordkeeping system.
Mr. Grothman. Okay. She didn't surrender them. But if she
would've surrendered them, how long would they have held on
though those emails, work-related emails related to the
Secretary of State? Let's say she did the right thing. She
leaves office on whatever it was, January of 2013; how long
would those emails be held by the government?
Mr. Linick. Well, that--I don't know the answer to that
question. That's unclear. I mean, one of the things in our
report was--we stated is that they didn't do such a great job
preserving emails at that time. And so their systems that were
in place weren't----
Mr. Grothman. Give----
Mr. Linick. So I don't have an answer to that question,
because it's not clear to me how long they would've been
preserved.
Mr. Grothman. I'll ask you both, because I think the answer
should be obvious.
Maybe the departments weren't doing the right things, but
if you get a freedom-of-information request, say, for something
that happened 2 years ago, these agencies are supposed to have
it, right? Are you guys subject to freedom of information?
Mr. Linick. Oh, sure. They're supposed to maintain----
Mr. McCullough. Right.
Mr. Grothman. Right. So if I ask you guys a freedom-of-
information request on something you guys were doing 2-1/2
years ago, you'd be able to pull that up for me, couldn't you?
Mr. Linick. Well, again, so long as the record is----
Mr. Grothman. You should be able to----
Mr. Linick. --in the agency's possession.
Mr. Grothman. --right? Assuming somebody didn't screw up.
Mr. Linick. Some records are disposed of--I mean, there are
timeframes. But----
Mr. Grothman. Minutiae. But most things, you would be able
to find things that you worked on 2-1/2 years ago, right?
Mr. Linick. You would hope.
Mr. Grothman. Otherwise, why even have a Freedom of
Information Act?
Okay. I guess what I'm getting to, not only did she not
turn them over, as you're saying she should have--correct?--but
if she wasn't going to turn them over, wouldn't it have more
prudent to hold on to them?
Mr. Linick. I'm not sure I follow you. What----
Mr. Grothman. Okay. If I want to know something that was
going on in the Secretary of State's office in 2012 and I made
a freedom-of-information request, the first thing they would do
is look at the records that they are holding on to, right?
And if Mrs. Clinton did not turn over the records as she
was supposed to under law, we might contact her and say, ``Hey,
Mrs. Clinton, we have a freedom of information request here. Do
you have any records dealing with the year 2012?'' Right? Isn't
that what you think would happen?
Mr. Linick. I don't know. I mean, possibly.
Mr. Grothman. Kind of frustrating here.
Do you think it was right for her to dispose of these
records? This is when she was still Secretary of State. Would
it have been right for her to erase work-related emails?
Mr. Linick. Well, if they count as Federal records, she's
supposed to make them part of an agency recordkeeping system.
Mr. Grothman. Right.
Mr. Linick. That's clear.
Mr. Grothman. Right.
Mr. Linick. So, if she didn't turn over records that are
part of the agency recordkeeping system, then she would be
violating State Department rules requiring her to do so.
Mr. Grothman. And if she would've, they would still be
available, unlike being erased by her lawyers, right?
Mr. Linick. So I don't----
Mr. Grothman. Assuming somebody didn't screw up in the
State Department.
Mr. Linick. Well, I don't know if they would've been
maintained because we found systemic issues with records
preservation. So it's--I can't tell you for sure----
Mr. Grothman. They should've been maintained. I'll put it
that way.
Mr. Linick. Absolutely.
Mr. Grothman. Absolutely. So, absolutely, if somebody makes
an open-records request, be it about the Clinton Foundation, be
it about Benghazi, whatever, in the year 2014, the State
Department should've been able to say, here are the emails
related to that, right?
Mr. Linick. Sure.
Mr. Grothman. Absolutely. And they didn't and couldn't
because they were erased by Secretary Clinton.
Mr. Linick. I don't know if they were erased, but the
bottom line is there were, you know, 50,000 pages----
Mr. Grothman. Well, we heard----
Mr. Linick. --of emails that were not returned to the
Department.
Mr. Grothman. We heard when the FBI testified that tens of
thousands of emails were erased. So I think we can assume--and
some of those they were able to retrieve; we know they were
work-related.
So I guess that's the point, was something wrong done
there. To erase work-related emails so, as a result, a freedom-
of-information request cannot be fulfilled, is there something
wrong with that, very wrong with that?
Mr. Linick. Well, again, in they're agency records, they
should be part of the agency recordkeeping system.
Mr. Grothman. In other words, work-related emails.
Mr. Linick. Well, they'd have to fall within the definition
of an agency record, which is anything that documents the, you
know, deliberations, the agency transactions, those kinds of
things, not personal matters or not logistical matters.
Mr. Grothman. Right. Work-related.
Mr. Linick. Work-related. Correct.
Mr. Grothman. So when the FBI testifies, as they did, like,
an hour ago, that they found work-related emails that had been
erased, there was something clearly wrong there, because those
emails should've been available in case somebody was making a
freedom-of-information request.
Mr. Linick. They should have been surrendered to the
Department when she left.
Mr. Grothman. Surrendered, and they should have been
available.
Mr. Linick. Right.
Mr. Grothman. Thank you.
Chairman Chaffetz. I thank the gentleman.
A couple quick more questions, and then we're getting near
the end here.
Ms. Costello, electronic records fall under--electronic
records fall under the jurisdiction of the Federal Records Act,
correct?
Ms. Costello. Yes, they do.
Chairman Chaffetz. Mr. Linick, do you believe--I'm going to
ask you both questions, so go ahead and stay.
Does this include--so electronic records fall under the
jurisdiction of the Federal Records Act, right, Mr. Linick?
Mr. Linick. So long as they contain work-related materials,
yes.
Chairman Chaffetz. Does this include video?
Mr. Linick. Well, if you're--if you're asking about the
videotape, the separate issue, I mean, that's something we're
looking at, and we're really not able to comment on it at this
time. I mean, that's an ongoing matter, whether videos are
records. But we're looking at that issue.
Chairman Chaffetz. Let's get--is this relating to the 8
minutes----
Mr. Linick. Right.
Chairman Chaffetz. --of deleted videos?
Mr. Linick. Right.
Chairman Chaffetz. So the inspector general is doing an
investigation.
Mr. Linick. Well, we're looking--where we've done it--we've
started a preliminary review, and we're looking into that
matter at this point. We have not opened a full-blown
investigation, but we are looking to see, sort of, what the
issues are, and we have interviewed some people.
Chairman Chaffetz. Well, we also have jurisdiction, and we
would like to know. So my question is, if the electronic record
is video, is it treated differently than if it's text?
Mr. Linick. I'm not able to answer that question. I mean,
that's beyond the scope----
Chairman Chaffetz. Why not?
Mr. Linick. Because I just--I don't have an answer for you.
Again, we're sort of in the middle of looking at those issues.
It's not part of the report that we issued.
Chairman Chaffetz. Right.
Mr. Linick. And I can only talk about what my work
supports. But I wouldn't want to venture a guess if----
Chairman Chaffetz. So if the personnel are paid by the
Federal Government, the hardware is paid by the Federal
Government, the software is paid for by the Federal Government,
if somebody were to tamper with that information, is that a
violation of the Federal Records Act?
Mr. Linick. I mean, a Federal record can be contained on
any medium. So, potentially, it could be a record, potentially.
In the case you're talking about, there's a transcript and a
video, and it's unclear which is the Federal record, so that's
why I'm hesitating here. But a Federal record can be on any--it
could be on a napkin.
Chairman Chaffetz. Could they both be?
Mr. Linick. Again, I'm not--I'm not sure, and I don't want
to guess----
Chairman Chaffetz. When will you give us that answer?
Mr. Linick. Well, we're working on it. So we'll----
Chairman Chaffetz. No, but I want to know what's reasonable
to know when you're going to get back to us on an answer on
that.
Mr. Linick. You know, I will talk with my staff who's doing
that work and get back to you and let you know sort of where we
are.
Chairman Chaffetz. You'll get back to me when?
Mr. Linick. I'm happy to get back to you as soon as I get
back to the office and let you know you know sort of what's
going on.
Chairman Chaffetz. By the end of the week? Is that fair?
Mr. Linick. Sure.
Chairman Chaffetz. That's tomorrow.
Mr. Linick. Sure.
Chairman Chaffetz. That would be most helpful.
And I do think--it's a very--it's affecting the Federal
record, and I think you need to look very closely at that. It's
something we're looking at, and we need your input and your
professionalism in saying--to me, it's pretty clear. These are
all records, whether they're video, transcript. There may be
photos. Certainly, if you are involved in law enforcement, the
more of that you have, the better the situation.
And we do this differently than most countries. We do
preserve records, and we do allow the public to access this
information because they paid for it. It's their government.
That's what the Freedom of Information Act is all about. And
when things are there and then deleted on purpose, then there's
a cloud of mystery that needs to be rectified. And I look
forward to hearing back from you.
The emails, the classified Hillary Clinton emails, can you
provide us those classified emails?
Mr. Linick. Well, we didn't look at the classified emails.
So that wasn't part of our review. I mean, maybe Mr. McCullough
can answer that question. I'm----
Chairman Chaffetz. Mr. McCullough?
Mr. McCullough. Certainly, I can provide you what--and I
believe we have provided Congress with everything that we had.
We can certainly--it's over in Senate security. We provided it
to SSCI, I believe, and HPSCI also.
Chairman Chaffetz. Can you provide this committee in a
secure format the classified emails?
Mr. McCullough. I can to a certain extent. I cannot provide
a certain segment of--because the agency that owns the
information for these emails has limited the distribution on
those. So they're characterizing them as ORCON. So we have----
Chairman Chaffetz. Explain what ``ORCON'' is.
Mr. McCullough. Originator control. So I can't--I can't
give them to even Congress without getting the agency's
permission to provide them. So they have been provided----
Chairman Chaffetz. Which agency?
Mr. McCullough. I can't say that here in an open hearing,
sir.
Chairman Chaffetz. So you can't even tell me which agency
won't allow us, as Members of Congress, to see something that
Hillary Clinton allowed somebody without a security clearance
in a nonprotected format to see? That's correct?
Mr. McCullough. This is the segment of emails--this is why
my letter back to Ranking Member Cummings had to be classified,
because people would like to see this segment of emails. And
this has been an issue not just with you and your committee but
with several Members at this point.
So we have gone back to the agency that is involved several
times, and I can--we can certainly do that again and ask
permission.
Chairman Chaffetz. Can you generally tell me, is it because
they are so sensitive about signals intelligence? Human
intelligence? What----
Mr. McCullough. We shouldn't get into the content of these
emails in an open hearing.
Chairman Chaffetz. Okay. I don't want to violate that, but
the concern is it has already been violated, and it was
violated by Hillary Clinton. And it was her choice. She set it
up, and she created this problem, and she created this mess. We
shouldn't have to go through this, but she did that.
Mr. McCullough. This is the--this is the segment of emails
that I had to have people in my office read in to particular
programs to even see these emails. We didn't possess the
required clearances and compartments.
Chairman Chaffetz. So even the inspector general for ODNI
didn't have the requisite security clearance.
Mr. McCullough. That's right. That's correct. They'd have
to get read-ins for them.
Chairman Chaffetz. Wow, wow, wow, wow. Unbelievable. What a
mess.
I'll yield back. The gentleman from Maryland, Mr. Cummings.
Mr. Cummings. A while back, and it has been a good while,
when we had the stimulus program, back in 2009, I guess, Mr.
Devaney, who was, I think, in charge of it, he said something
I'll never forget. He said--you know, we were talking about how
do you control the money and make sure that nobody does
anything wrong. He said: I'd rather do things upfront so that
people never commit an offense than to have them commit an
offense and then they're in trouble.
And I'm trying to figure out--I've got to tell you, this
whole thing of classification really bothers me, and it bothers
me because I think it's so unfair. I think, I mean, somebody is
going to classify something later on, you all just--I mean,
your offices--I mean, well, Intelligence and State disagree.
As a matter of fact, I was looking at something where there
was a disagreement between State and the Intelligence a while
back, and Senator Corker had sent a letter, wrote a letter to
the State Department about one of these disputes last year.
And the State Department responded in September, and I
quote: ``Your letter focused on an email chain that someone
within the intelligence community claims should have been
redacted as secret. Our experience is that this process may in
some instances result in the IC wrongly assuming that
information in the emails originated with the IC, when it may
instead have been based upon other sources, given the wide
range of context maintained by State Department officials,''
end of quote.
So, you know, I just--I'm wondering what your offices can
do, if anything, it may be out of your jurisdiction, but going
back to what Mr. Devaney said back then, is how do we make sure
that people are not stepping into violations that they don't
even know. I mean, am I missing something?
I mean, and this is serious stuff, man. You've got the FBI
Director, the Department of Justice, and people can't even
agree. I'm not saying you should agree. But when you tell me--
and I'm going to harp on this because I saw it in the Benghazi
Committee. You know, you say I'm going to--you committed a
crime or you did something wrong when something was upgraded
later. What's that about? Can you all help me?
Mr. McCullough. There are a couple of issues in there, Mr.
Cummings. The first, in terms of the ``upgraded later,'' again,
the emails we were concerned about were not those that were
upgraded. I believe that's--it's not just--it's not unique to
the State Department, but that seems to be a fairly common--
when the State Department is processing a FOIA, they upgrade
things before they're released.
And so that's one subset, one bucket of emails, and that's
separate from the emails we're talking about, it's separate
from the emails, I believe, Director Comey is talking about
when he says there were 110. I believe that those were
classified when they were created and sent and received. So
those weren't about being upgraded.
I think--I've heard the term used ``retroactive
classification.'' Whatever you want to call it, that is being
done with some emails. But the emails that were the concern, I
believe, in this case, were the emails that were classified
when they were born essentially, when they were created.
Mr. Cummings. But they aren't marked, right?
Mr. McCullough. Other than those that you discussed with
Director Comey earlier.
Mr. Cummings. Three, three, three, three.
Mr. McCullough. Right. I know of none that were marked that
we looked at.
Mr. Cummings. See, that's--that's what--that's part of what
I'm talking about.
Mr. McCullough. Right.
Mr. Cummings. They've got it all out in the press, oh,
Hillary Clinton lied because she--and then we come to find out
there were three that had markings of a ``C,'' and it was the
wrong marking. So basically, 3 out of 30,000-plus. You see
how----
Mr. McCullough. But to your question about what can we do
about over classification, of course, in the intelligence world
transparency and classification and secrecy tend to be
competing equities. There are civil liberties, protections,
offices, and privacy officers.
We have done as IGs over the past several years reports
under the Reducing Over-Classification Act. Each IG would have
done one of those for their department or agency. And the IGs
now, I think, if they haven't finished yet, will be in the
process of doing a statutory follow-up--this was mandated from
Congress--on reducing over-classification. So each IG is doing
a review of its department or agency having to do with
overclassification.
Mr. Cummings. Well, I want to--I want to--I hope that the
IG bill helps you all, I hope that helps, because we worked
very hard on that bill, because we want you all to be effective
and efficient. And, again, I want to thank you and your staffs
for your service. We really appreciate all that you all do.
Thank you very much, and thank you for being here.
Mr. McCullough. Thank you.
Mr. Linick. Thank you.
Mr. Cummings. And I'm going to follow up on my 13
questions. All right?
Mr. McCullough. Yes, sir. We'll be there to brief you in
person.
Mr. Cummings. I'm looking forward to it.
Mr. McCullough. Yes, sir. Thank you.
Chairman Chaffetz. I now recognize the gentleman from
Massachusetts, Mr. Lynch.
Mr. Lynch. Thank you.
I too want to thank you for your service and your
willingness to help the committee.
Just in closing, after all this, you know, the long
investigation of Secretary Clinton, are we approaching--I mean,
technology now has allowed us to have full-spectrum
surveillance of people in government, so that every word, every
thought, every conversation, it's gone beyond just capturing
official records.
But, you know, it's actually--I think we're at a point
where it has a chilling effect, where you can't even have
normal discourse anymore. You've got to leave your office and
have a conversation in the hallway, and you've got to make sure
that other person leaves their cell phone aside.
I just think it's driving a lot of conversations
underground. And, you know, I realize we're on the Oversight
Committee and we want to make sure that we have a certain level
of transparency, but I also think that, you know, I think a lot
of people in government will think twice.
First of all, people will think twice about serving in
government, and then people in government will take great pains
to make sure that their thoughts, the open discourse, are not
ever recorded because you're going to have a committee like
this subpoenaing you and getting every single phone call you
ever made and every email you ever made.
It's not good. It's not--this is not a good result. And,
you know, I know inquiring minds want to know, but it just
makes it very difficult for a government to function and it
makes--and it has an implication for the public too, because,
you know, people call up--we've exempted ourselves, by the way,
Congress, for good reason.
But, you know, the public has to interact with us. And so
those phone calls, those emails back and forth, people
petitioning their government, that's all subject to
surveillance as well. You know, I just think we've reached the
tipping point here, and I'm just curious if you think about
that at all.
Mr. McCullough. Yes, sir. One aspect and one area where we
think about that has to do so with whistleblower
communications. So as IGs, we deal with the public a lot also.
Many of them are current or former government employees or
contractors, and so we have, over the past couple of years, had
to balance that out too, the need for security, the need for
counterintelligence, which is sacrosanct. We have to protect
secrets.
On the other hand, we have to have people feel comfortable
as whistleblowers to come to an IG and make a complaint about a
law, rule, or regulation.
So I share your concern there, and that is something--I
chair the Intelligence Community Inspectors General Forum. It's
all 17 intel agencies. And it's something that our forum has
had a lot of discussion about, frankly.
But we feel as though we've at this point struck a
manageable, livable balance with the agencies and management so
that people can feel comfortable coming to an IG and
complaining to us without fear of their communications being
used against them. And if they are, then we have reprisal
statutes.
Mr. Lynch. Yeah.
Mr. McCullough. And as Mr. Cummings said, this act is going
to help strengthen us also, and so we investigate reprisal when
that does happen.
Mr. Lynch. No, I mean, you see it in the pushback. State
Department has a, you know, a culture where, you know, all
these people--going back to Condoleezza Rice and Secretary
Powell, Secretary Clinton--people using private communication
devices, that's all to get out from underneath this, you know,
constant surveillance.
So I don't know. At some point we've got to just try to
strike that right balance. Sometimes it's difficult.
I yield back.
Chairman Chaffetz. I thank the gentleman.
I want to thank our witnesses here today. I want to thank
the inspector general community in general. You've got a lot of
good men and women who poured their heart and soul in a lot of
their work, you know. My biggest fear is that we don't read it,
digest it, and then act on it. But we're committed to doing
that as much as possible.
Your looking under the hood, your recommendations, your
findings, they're pivotal for us to do our jobs here in
Congress, and I just want to thank those men and women. I hope
you carry that message back to each of your organizations.
I also want to personally thank the three of you for
spinning on a dime and being here so swiftly. We did do this
around the FBI Director's availability. When I spoke with him
on the phone on Tuesday, I asked him which day would be most
convenient and he said Thursday. So that's why we ended up on
Thursday, and we all spun around that and you did as well. And
so I thank you for the swift manner in which you made
yourselves available and the interaction you have had with the
committee.
I do want to make sure we follow up on Mr. Cummings'
questions and requests. And I do, Mr. Linick, really, and Ms.
Costello, want to make sure that we get that information about
electronic records as it relates to videos and those types of
things.
Chairman Chaffetz. Again, I thank you for being here. It
has been a good, long day, but fruitful and important work. The
committee stands adjourned.
[Whereupon, at 4:04 p.m., the committee was adjourned.]
APPENDIX
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