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When FBI Director James Comey testified before the House Oversight Committee on Thursday, congressional Republicans had one big question: Why in the world didn’t he recommend charging Hillary Clinton with anything?
"I have defended your integrity every step of the way," the committee’s chair, Rep. Jason Chaffetz (R-UT), said. "But I am mystified and confused."
"What I hope you can do today is help the average person" understand "why she appears to be treated differently than the rest of us would be," said Rep. Trey Gowdy (R-SC).
Even Democrats urged Comey to explain himself. "There is a perceived gap between the things you said on Tuesday [about Clinton’s conduct] and your recommendation," Rep. Elijah Cummings (D-MD) said. "I beg you to fill the gap, because when the gap is not filled by you, it will be filled by others."
So for hours, Comey tried to fill that gap. He explained at length why, even though he had said Clinton was "extremely careless," he didn’t recommend charging her for "gross negligence." He explained why he thought the case against General and former CIA director David Petraeus for mishandling classified information was actually a much stronger one.
Comey also gave his thoughts on why Clinton set up that private server in the first place, and was asked to judge the accuracy of several past Clinton statements on her email setup — with some ugly results. Here’s what we learned.
1) Comey said he didn’t recommend Clinton be prosecuted for "gross negligence" because only one person in 99 years has been
In explaining why he wouldn’t recommend any charges for Clinton, Comey has leaned heavily on the topic of "intent," and he did so again in Thursday’s hearing.
"There are two things that matter in the criminal investigation of the subject: What did the person do, and when they did that, what were they thinking?" Comey said. "We don’t want to put people in jail unless we prove that they knew they were doing something they shouldn’t do."
Yet critics of his decision have frequently brought up two words in response: "gross negligence."
That refers to a provision of the Espionage Act of 1917 that makes it a felony for someone to let classified information about national defense be "removed from its proper place of custody" due to "gross negligence."
This suggests that a prosecutor might not necessarily have to prove that Clinton intended to do something illegal — proving she was grossly negligent could be enough. And given that Comey himself has said Clinton and her aides were "extremely careless" in handling classified information ... well, doesn’t extreme carelessness sound a whole lot like gross negligence?
But in Thursday’s hearing, Comey argued that the Justice Department has historically set an extremely high bar for prosecutions of gross negligence — so high, he said, that the statute has only been used once in the 99 years it’s existed, "in a case involving espionage."
Comey is apparently referring to a 2003 case against FBI counterintelligence agent James Smith. Smith was having an affair with one of his assets, Katrina Leung, who was accused of working for the Chinese government. According to the government, Smith brought classified documents in an unlocked briefcase to Leung’s home, and, unbeknownst to Smith, Leung took some of those documents and photocopied them. (You can read more background on this case in this law review article, but Smith’s gross negligence charges were eventually dropped as part of a plea deal.)
"When I look at the history of the prosecutions and see there’s been one case brought on the gross negligence theory," Comey continued, "I know there’s no way 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 [in this case]."
2) Contra Trump, Comey was very confident that Petraeus’s conduct was far worse than Clinton’s
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Comey was also asked to respond to Donald Trump’s recent argument that "General Petraeus got in trouble for far less" than Clinton did, which is "very very unfair." (In 2015, Petraeus pleaded guilty to a misdemeanor charge for giving classified information to his lover and biographer Paula Broadwell.)
Yet Comey argued the Petraeus case is actually a "perfect illustration" of which kinds of cases should be prosecuted.
"In that case, you had vast quantities of highly classified information" that was "shared with someone without authority to have it," Comey said. "And then he lied to us about it during the investigation."
Not only that, but Petraeus was actually tape-recorded telling Broadwell that some of the information he was giving her was "highly classified," with "code word stuff" — meaning his intent was quite easy to prove.
So, Comey continued, "you have obstruction of justice, intentional misconduct, and vast quantity of information," and Petraeus "admitted he knew that was the wrong thing to do." All of this, Comey said, "illustrates importantly the distinction" to Clinton’s case, in which there wasn’t sufficient evidence to support any of these.
Finally, when asked by Rep. Elijah Cummings whether he stood by the FBI’s recommendation to charge Petraeus, Comey responded with vigor, "Oh, yeah."
3) There may be a new investigation on whether Clinton lied to Congress — but she has a defense
Perhaps the worst news for Clinton is that another investigation may have started off from the hearing itself.
The background is that Clinton has long said she never was sent or received any information that was marked classified on her personal server. Indeed, she said just that while under oath to the House committee investigating the Benghazi attack last fall.
However, Comey has now said that three emails among the tens of thousands Clinton either sent or received in fact did bear "markings indicating the presence of classified information."
Many Republicans, including Chaffetz, the House Oversight Committee chair, argue that the classified markings on these three emails are a clear contradiction of what Clinton has long said and indicate that she may have lied under oath.
Indeed, when Comey said he hadn’t investigated whether Clinton’s sworn statements to Congress were true because he needed a referral from Congress to do so, Chaffetz said, "You’ll have one. You’ll have one in the next few hours" — raising the specter of yet another FBI investigation of Clinton.
But before assuming this is flat-out proof Clinton lied, consider a few things. First, Comey testified that, according to his investigation, it was possible Clinton may not have even understood what those markings meant.
That's because the three marked emails in question didn’t have the traditional headers at the top of the document saying they were classified. Instead, Comey said, each had the letter C in parentheses — a marking for confidential classified information — down in the body.
"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," Comey said. "I don’t think our investigation established she was particularly sophisticated with respect to classified information and the levels."
Now, it's obviously rather embarrassing for Clinton if she couldn’t recognize classified markings despite years of working in government, particularly because she now wants to be president.
Beyond that, though, the State Department said Wednesday that two of these emails in question in fact shouldn’t have been marked classified at all, and contained those "(C)" markings only because of human error. Comey didn't shed any further light on that statement by State, but if accurate, that would seem to be another point in Clinton's favor.
4) Comey suggests Clinton really might have done all this for "convenience," rather than having other nefarious intent
One question on many people’s minds throughout all this has been why Clinton would go to such lengths to host her emails on a private server in the first place.
The obvious answer, according to Clinton critics, is that she wanted to withhold her emails from the government and the public, shielding them from Freedom of Information Act lawsuits, investigating committees, and so forth.
Yet Clinton and her defenders have long maintained that she wanted to keep all of her email on device purely for the sake of convenience — suggesting this was all an innocent blunder from someone who’s not really technologically savvy.
A bit surprisingly, Comey sort of backed Clinton’s explanation here. After a question from Rep. Ron DeSantis (R-FL) about whether Clinton designed her email setup so that she could withhold information, Comey said, "I can’t say that. Our best information is she set it up as a matter of convenience."
This is hardly a definitive statement, but Comey didn’t have to go that far — he could have just declined to answer. So it’s notable that his investigation apparently didn’t turn up evidence that Clinton was deliberately trying to hide her records from prying eyes.
5) Many of these facts look really ugly for Clinton
Even though Clinton isn’t being charged for anything related to the email scandal, the facts of the case — and the contradictions with some of her past statements — still look very ugly indeed.
That ugliness was on display in rapid-fire questioning by Rep. Gowdy, who repeatedly asked Comey to judge the accuracy of Clinton’s past public statements about her email setup.
Here’s a stretch that’s pretty damning:
GOWDY: Secretary Clinton said there was nothing marked classified on her emails, either sent or received, was that true?
COMEY: That’s not true, there were a small number of portion markings on, I think, three of the documents.
GOWDY: Secretary Clinton said, "I did not email any classified material to anyone on my email, there is no classified material," was that true?
COMEY: No, there was classified material emailed.
GOWDY: Secretary Clinton said she used just one device, was that true?
COMEY: She used multiple devices during the four years of her term as secretary of state.
GOWDY: Secretary Clinton said all work-related emails were returned to the State Department. Was that true?
COMEY: No, we found work-related emails, thousands, that were not returned.
...
GOWDY: Secretary Clinton said her lawyers read every one of the emails and were overly inclusive, did her lawyers read the email content individually?
COMEY: No.
Now, Clinton may have explanations for some of these contradictions. For instance, on the topic of her having multiple devices — which seems to contradict her argument that she wanted to use just one phone for everything for convenience — a Huffington Post report this week quoted anonymous sources "familiar" with Clinton’s setup saying that she had multiple phones over the year, but "never more than one at the same time."
Still, there are a whole lot of contradictions here for the Clinton team to explain — and for Trump and the Republicans to bring up, again and again, in the campaign.
