FBI director, House GOP face off in dramatic hearing

by TheHill.com - 07/07/16 10:37 AM ET

The head of the FBI spent more than 4.5 hours on Capitol Hill on Thursday defending his decision not to recommend charges against Hillary Clinton and denying that he was creating a double standard for justice.

Republicans pilloried Clinton herself for the multiple discrepancies between her public statements and the FBI’s findings on her private email system when she was secretary of State.

{mosads}And FBI Director James Comey came under fire for declining to recommend charges against Clinton, despite evidence of exceedingly poor judgment that risked government secrets.

“We believe that you have set a precedent, and it’s a dangerous one,” Committee Chairman Jason Chaffetz (R-Utah) told the FBI chief.

“If your name isn’t Clinton or you’re not part of the powerful elite, Lady Justice will act differently,” Chaffetz added. “It’s a concern that Lady Justice will take off that blindfold and come to a different conclusion.”

During blistering remarks, Chaffetz also said lawmakers would soon refer questions to the FBI about whether Clinton had committed perjury by lying about her servers while under oath on Capitol Hill.

A referral could be coming “in the next few hours,” the Oversight chairman said. The referral would set the stage for a potential new federal investigation into Clinton, which could yield charges if she is found guilty of perjury.

Comey repeatedly defended the decision of his “apolitical and professional” investigation and the outcome it led to.

“I did not coordinate that with anybody,” Comey said, including the White House and Justice Department.

“I say that under oath. I stand by that,” he added. “I want to make sure I am definitive about that.”

Clinton’s campaign criticized the “partisan motivations” of the hearing, but nonetheless said it was “glad” that Comey could defend his decision.

“The Director’s explanations shut the door on any remaining conspiracy theories once and for all,” campaign spokesman Brian Fallon said in a statement.

“While Republicans may try to keep this issue alive, this hearing proved those efforts will only backfire.”

GOP lawmakers peppered the FBI director about the recommendation against an indictment, despite evidence of carelessness.

According to Comey, investigators found no conclusive evidence that Clinton and her former aides knew they were mishandling classified information, making an indictment all but impossible.

Most legal standards require people to have intentionally taken classified information out of secure spaces in order for charges to be filed against them.

Comey noted that while a law exists, passed in 1917, that allows for indictments to be handed down in cases of “gross negligence,” it’s only been used once since then, in an espionage case.

“No reasonable prosecutor would bring the second case in 100 years focused on gross negligence,” Comey said.

“That’s just the way it is. I know the Department of Justice,” said Comey, a former U.S. attorney and deputy attorney general. “I know no reasonable prosecutor would bring this case.”

The legal standard of criminal intent, known as “mens rea,” prevented charges from being filed in the Clinton case, Comey told lawmakers.

“I see evidence of great carelessness,” he said. “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 were doing it that it was against the law.”

Comey contrasted that case with that of former CIA Director David Petraeus, who was convicted of a misdemeanor charge for handling sensitive material to his mistress and biographer.

In the Petraeus case, the former general acknowledged on tape that material he was handing over to Paula Broadwell was highly classified. He also hid some of the material in the insulation of his attic, Comey added, and then lied about it during the course of the investigation.

“That is the perfect illustration of the kind of cases that get prosecuted,” he said.

For the most part, Republicans refrained from accusing Comey of being bowed by politics to accommodate the presumptive Democratic presidential nominee. The argument would have been a difficult one to make, given Republicans’ repeated praise for the FBI head in the weeks leading up to Tuesday’s decision not to recommend charges.

Instead, they stuck to concerns about the “double standard” and tried to hammer Clinton on lying about virtually every aspect of her email setup.

Democrats, seizing on past GOP praise for Comey’s independence, called Thursday’s hearing a “political circus” in line with the hotly partisan Select Committee on Benghazi.

“In their mind, you had one job and one job only: to prosecute Hillary Clinton,” Rep. Elijah Cummings (D-Md.), the committee’s top Democrat, told Comey.

“I would not be surprised if tomorrow Republicans set up a new committee to spend $7 million-plus to find out why the FBI did not prosecute Hillary Clinton.”

Among other points, Clinton’s server contained three emails marked as classified, though only partially and improperly. Comey told lawmakers he wasn’t certain that Clinton fully understood that the markings indicated the information was sensitive.

More than 100 of the emails on her servers contained information that was classified at the time it was sent, the FBI concluded. Clinton has previously claimed that nothing she received or sent through her personal server was classified, only that it was later marked as such.

Comey refused to say Thursday whether Clinton “lied” to voters and Congress.

But “we have no basis to conclude she lied to the FBI,” he said.

“She didn’t lie to the FBI, but it’s apparent she lied to the American people,” retorted Rep. Mark Meadows (R-N.C.).

— Updated at 3:35 p.m.