FBI Director James Comey on Thursday vigorously defended his decision not to file criminal charges over Hillary Clinton’s use of a private email server, at times lecturing incredulous Republican lawmakers on the fine line between being careless and committing a crime.
The hearing before the House Oversight and Government Reform Committee divulged few new details about the FBI investigation, beyond a revelation by Comey that the presumptive Democratic presidential candidate may not have understood the meaning of small classification markings in the bodies of three emails that indicated those paragraphs were considered confidential.
The session was the latest example of how the email scandal has become a political Rorschach test, with Republicans expressing anger and frustration at the decision not to prosecute, and Democrats defending Comey’s integrity and independence against withering attacks from the other side of the hearing room.
In his testimony, Comey reiterated that the FBI had uncovered no evidence that Clinton knowingly sent classified information despite displaying “great carelessness” and a lack of technical sophistication. The Justice Department on Wednesday accepted that recommendation and formally closed the investigation.
Asked why Clinton’s conduct could not be prosecuted under a 1917 law involving “gross negligence,” the FBI director noted that only one other person had been charged under that provision in the past 99 years and that defendant had engaged in espionage. He questioned the constitutionality of the law.
“We don’t want to put people in jail unless we prove that they knew they were doing something they shouldn’t do,” Comey said.
Comey’s rationale did not satisfy Republicans, who expressed concerns that the FBI and Justice Department were showing deference to Clinton and would have prosecuted someone else in similar circumstances.
Rep. Jason Chaffetz (R-Utah), chairman of the committee, said he was “mystified. … We believe that you have set a precedent, and it’s a dangerous one. The precedent is that if you sloppily deal with classified information, if you are cavalier about it, and it wasn’t just an innocent mistake and this went on for years, then there is going to be no consequence.”
Despite being pressed repeatedly by Republicans, Comey declined to say whether he believed Clinton lied in her public statements about the email server. He said he believed she had been truthful to FBI agents during her 3.5-hour interview on Saturday.
“I have no basis for concluding that she was untruthful with us,” he said.
In response to GOP questions, he did agree that if someone under his supervision had engaged in similar conduct, there would be administrative consequences, though no criminal prosecution.
He also expanded on his comment Tuesday that a “very small number of the emails … bore markings indicating the presence of classified information.”
Republican critics had pounced on that revelation as evidence that Clinton lied when she insisted she never sent or received emails marked classified.
Comey told lawmakers that none of the three emails in question had “headers” marking the emails as containing classified material. Instead, he said, the body of three emails contained markings — the letter C in parentheses — that indicated the information within that paragraph was confidential, the lowest level of classification.
The director agreed that a sophisticated government employee should have recognized what the marking meant, but said he believed Clinton may not have. “I think it’s possible, possible she didn’t understand what a ‘C’ meant when she saw it in the body of the email like that.”
Separately, State Department officials have disputed whether the information in those emails should have been marked confidential in the first place, attributing it to “human error.” They said the information — which involved possible conversations between Clinton and foreign officials — no longer was deemed confidential by the time the emails were sent. Democrats said the disclosure vindicated Clinton.
One of the few moments when Comey broke his calm demeanor and expressed frustration came in response to a statement from Florida Republican Rep. John L. Mica that his constituents believed there “was something fishy” about the timing of Comey’s announcement — just hours before President Obama joined Clinton at a campaign rally.
The FBI director grew a bit stern and said he hoped Mica’s constituents would “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.”
The hearing, and another next week involving Atty. Gen. Loretta Lynch, are part of an effort by GOP leaders to keep the Clinton email controversy at center stage, even as Clinton’s campaign attempts to put the issue behind it.
In choosing to attack Comey and question the integrity of the probe, Republicans may have missed an opportunity to draw out the director’s more damning public condemnations Tuesday of Clinton’s mishandling of classified materials.
FBI agents had found that 110 emails in 52 email chains contained information that should have been marked and treated as classified when it was sent on Clinton’s personal server, including eight chains containing information that was top secret, the highest level of classification.
Instead GOP lawmakers frequently pressed Comey, also a Republican, to justify his own actions, effectively forcing him to defend Clinton’s conduct as not rising to the level of criminal activity.
Democrats, on the other hand, accused Republicans of seeking to score political points, not get at the truth.
“I firmly believe your decision was not based on convenience but on conviction,” Rep. Elijah E. Cummings of Maryland, the ranking Democrat, told Comey.
Rep. Gerald E. Connolly (D-Va.) said the hearing was “political theater. It’s not even the pretense of trying to get at the truth.”