During an extended exchange with Rep. Trey Gowdy (R-S.C.), Comey affirmed that the FBI’s investigation found information marked classified on her server even after Clinton had said that she had neither sent nor received any items marked classified.
“That is not true,” Comey said. “There were a small number of portion markings on, I think, three of the documents.”
Asked whether Clinton’s testimony that she did not email “any classified material to anyone on my email” and “there is no classified material” was true, Comey responded, “No, there was classified material emailed.”
“Secretary Clinton said she used one device. Was that true?” Gowdy asked, to which Comey answered, “She used multiple devices during the four years of her term as secretary of state.”
Gowdy then asked whether it was true that Clinton, as she said, returned all work-related emails to the State Department.
“No, we found work-related emails, thousands that were not returned,” Comey said.
“Secretary Clinton said neither she or anyone else deleted work-related emails from her personal account. Was that true?” Gowdy asked.
“That’s a harder one to answer,” Comey responded. “We found traces of work-related emails in, on devices or in slack space. Whether they were deleted or whether when a server changed out something happened to them, there is no doubt that the work-related emails that were removed electronically from the email system.”
Gowdy asked whether Clintons’ lawyers read every one of her emails as she had said. Comey replied, “No.”
“In interest of time, because I have a plane to catch tomorrow afternoon, I’m not going to go through anymore of the false statements but I am going to ask you put on your old hat. False exculpatory statements, they are used for what?” Gowdy inquired.
Comey responded, “Either for the substantive prosecution or for evidence of intent in a criminal prosecution.”
“Exactly. Intent and consciousness of guilt, right? Is that right?” Gowdy asked. “Consciousness of guilt and intent. 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. Would you argue all that under heading of content–intent. You would also be arguing the pervasiveness of the scheme, when it started, when it ended and 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 should have known a private email is 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,” Gowdy said. “This is a former first lady, a former United States senator, and a former secretary of state that the president now contends is the most competent, qualified person to be president since Jefferson. He didn’t say that in ’08 but he says it now. She affirmatively rejected efforts to give her a state.gov account. She kept these private emails for almost two years and only turned them over to Congress because we found out she had a private email account.”
He continued, “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 yet you say there is insufficient evidence of intent.”
“You say careless but not intentionally. You and I both know intent is really difficult to prove,” Gowdy continued. “Very rarely do defendants announce, ‘On this date I intend to break this criminal code section. Just to put everyone on notice, I am going to break the law on this date.’ It never happens that way. You have to do it with circumstantial evidence, or if you’re Congress and you realize how difficult it is to prove specific intent, you will formulate a statute that allows for gross negligence.”
Remarking that his time had expired, Gowdy said he still feared that there was no precedent for criminal prosecution for future cases similar to Clinton.
“And my real fear is this, this is what [Chairman Jason Chaffetz (R-Utah)] touched upon, this double tracked justice system rightly or wrong hey perceived 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,” Gowdy concluded. “So what I hope you can do today is help the average person, the reasonable person you made reference to, the reasonable person understand, why she appears to be treated differently than the rest of us would be.”