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AT THIS HOUR WITH BERMAN AND MICHAELA

Live Coverage of Director James Comey's Testimony on FBI Investigation into Clinton's E-Mails. Aired 11:30a-12p ET

Aired July 7, 2016 - 11:30   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


[11:30:05] REP. JIM COOPER (D), TENNESSEE: 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 applied 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, e-mails were retroactively classified.

That's a situation 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. 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 McDonnell was exonerated by an eight to zero vote at the Supreme Court for having done certain things that I think most Americans would find object able.

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 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. I yield to the Ranking Member.

REP. ELIJAH CUMMINGS (D), MARYLAND: Mr. Director, lemme 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 the documents? You said there were three documents with certain markings on them.

JAMES COMEY, DIRECTOR, FBI: Yeah.

CUMMINGS: That indicated classified, go ahead.

COMEY: There were three e-mails that down in the body of the e- mail, in the three different e-mails, there were paragraphs and the beginning of the paragraph had a parenthesis, a capital "c" and then a parenthesis.

And that is a portion marking to indicate that.

CUMMINGS: That paragraph.

COMEY: That paragraph is classified at the confidential level, which is the lowest level of classification.

CUMMINGS: And so out of 30,000 documents, this is -- you found these three markings. Is that what you're saying?

COMEY: Three e-mails bore "c" markings down in the body. None of the e-mails 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."

CUMMINGS: Thank you.

REP. JASON CHAFFETZ (R), UTAH: I thank the gentleman.

I now recognize the gentleman from Tennessee, Mr. Duncan, for five minutes.

REP. JOHN DUNCAN (R), TENNESSEEE: Thank you, Mr. Chairman.

Mr. Meadows mentioned one instance in which Secretary Clinton said that she had -- 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 mailed, e-mailed classified material?

COMEY: One hundred and ten that she either received or sent.

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."

COMEY: Correct.

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 e- mail particularly, our participants who know or should know that the subject matter is classified are still obligated to protect it.

Do you -- do you feel that Secretary Clinton knew or should have known that she was obligated to protect classified information?

COMEY: Yes. DUNCAN: With her legal background and her long experience in government. Also, she said at one point that she has directed all e- mails, work-related e-mails, to be forwarded to the State Department.

Is it also accurate that you discovered thousands of other e- mails that were work-related other than the 30,000 she submitted?

COMEY: Correct.

DUNCAN: Before I came to Congress, I spent several years as a criminal court judge. I tried several -- presided (ph) 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 -- do you realize or do you realize that great numbers of people across this country felt that you presented such a strong -- 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?

Do you doubt that great numbers feel that way?

COMEY: No, I think so. And I understand the questions. 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.

DUNCAN: Well, do you understand as the chairman said earlier, that great numbers of people feel now that there's one standard of justice for the Clintons and another for regular people?

COMEY: Yeah, I've heard that a lot. It's not true, but I've heard it a lot.

DUNCAN: Well, even the Ranking Member who is 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 you presented and the conclusion that was reached.

Did -- did that surprise you, that he felt so strongly that there was this big gap?

COMEY: No, not at all. It's a complicated matter. It involves understanding how the Department Of Justice works across decades, how prosecutorial discretion is exercised. I get that folks see disconnections, 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 going on over the last 99 years.

What's the precedent, how do we treat these cases -- I totally I get people's questions and I think they're in good faith. DUNCAN: Do you -- we talk 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 to -- 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?

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 (ph) extremely careless is trying to be kind of an ordinary person. That's a common-sense way of describing it; 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 from 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.

DUNCAN: You ended your statement to Congressman Cooper a while ago saying no -- saying once again that no reasonable prosecutor could have brought this case, yet you also mentioned earlier today that you had seen several of your friends and other prosecutors who have said publicly, many across this country, they would have been glad to prosecute this case.

COMEY: I smile because they're friends and I haven't talked to them I want to say, guys, so where were ya 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 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.

DUNCAN: Of course, you know many people have been prosecuted for gross negligence by the Federal Government, by the FBI.

CHAFFETZ: The gentleman's time has expired.

We'll now recognize the gentleman from Virginia, Mr. Connolly, for five minutes.

REP. GERALD CONNOLLY (D), VIRGINIA: Thank you.

And welcome, Director Comey and although our politics are different, I gather you're a Republican. Is that correct?

COMEY: I have been registered Republican for most of my adult life. Not registered any longer.

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 theater. It's not even the pretense of trying to get at the truth. This is the desperate attempt under a -- 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, was talking about banning Muslims and Mexicans crossing 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. Putative nominee. And you took away their only hope.

And so the theater today is actually trying to discredit you. Subtly (ph), 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 flattered (ph) with citizens in her home state who are reading the statute that governs classification. A lot of time on the hands back there, I guess, but yeah, this is all designed to discredit your finding.

Now, the FBI interviewed Secretary Clinton, is that correct?

COMEY: Yes.

CONNOLLY: Did she lie to the FBI in that interview?

COMEY: I have no basis for concluding that she was untruthful with us.

CONNOLLY: Is it a crime to lie to the FBI?

COMEY: Yes, it is.

CONNOLLY: David Petraeus did lie to the FBI?

COMEY: Yes.

CONNOLLY: And he was prosecuted for that -- well, could have been.

COMEY: Could have been. Was not for that.

CONNOLLY: Right. That's always a judgment call.

COMEY: Correct.

CONNOLLY: Was she evasive?

COMEY: I don't think the agents assessed she was evasive.

CONNOLLY: Hmm. How many e-mails are we talking about, total, universe, that were examined by your team?

COMEY: Tens of thousands.

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 a fact 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?

COMEY: Yes.

CONNOLLY: Yes. So could it be that in her hundred trip, four years, 100 overseas trips to 100 countries, as secretary of state trying to restore U.S. credibility that had been destroyed in the previous eight years overseas, and tens of thousands of e-mail communications, not including phone calls and classified conversation and skips and the like, that maybe the small percentage of e-mails 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?

COMEY: I don't usually deal in maybes. It's possible.

CONNOLLY: Well, you do deal in distinguishing between willful and inadvertent.

COMEY: Sure.

CONNOLLY: And in this case, you concluded it has to be in the latter category. It wasn't willful.

COMEY: We concluded there was not adequate evidence of willful conduct.

CONNOLLY: Right. So there's no obfuscation, here, unlike in the Petraeus case, and there's no evasion, there's no lying. There's no willful attempt 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 theater 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.

CHAFFETZ: I now recognize the gentleman from Texas, Mr. Hurd, for five minutes.

REP. WILLIAM HURD (R), TEXAS: 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 theater. This is not political theater. For me, this is serious.

I spent nine and a half years as an undercover officer in the CIA. I was the guy in the back allies collecting intelligence, passing it to lawmakers. I have seen my friends killed, I have 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?

COMEY: Yes.

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?

COMEY: Correct.

HURD: Who was protecting that information? Who was protecting that server?

COMEY: Well, not much. There was a number of different people who were assigned as administrators of the server.

HURD: And at least seven e-mail chains or eight that -- was classified as TS/SCI?

COMEY: Correct.

HURD: So the former secretary of state, one of the president's most important advisers 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?

COMEY: It takes mishandling it and criminal intent.

HURD: And so an unauthorized server in the basement is not mishandling?

COMEY: Well, no, there is evidence of mishandling here. This whole investigation at the end focused on is there sufficient evidence of intent.

HURD: Were -- was this unanimous opinion within the FBI on your decision?

COMEY: The whole FBI wasn't involved, but the team of agents, investigators, analysts, technologists, yes.

HURD: Did you take into any consideration the impact that this precedence can set on our ability to collect intelligence overseas?

COMEY: Yes. My primary concern is the impact on what other employees might think in the federal government.

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?

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.

HURD: Director Comey, do you have a server in your basement?

COMEY: I do not.

HURD: Does anybody in the FBI have a server in their basement? Or in their house?

COMEY: I don't know. Not to my knowledge.

HURD: Do you think it's likely?

COMEY: I think it's unlikely.

HURD: I would think so, too. I would think so, too. Because I'm proud -- always been proud to serve alongside the men and women that you represent.

So there was no dissenting opinion when you make this decision. It's your job to be involved in counterintelligence as well. Right?

COMEY: Yes.

HURD: So that means protecting our secrets from foreign adversaries collecting them. Is that correct?

COMEY: Correct.

HURD: Did this activity you investigated make America's secrets vulnerable to hostile elements?

COMEY: Yes.

HURD: Do you think that pattern of behavior would continue?

COMEY: I'm sorry? I missed the...

HURD: Do you think that pattern of behavior would continue?

COMEY: Would continue...

HURD: By -- by our former secretary of state?

COMEY: I'm not following you. You mean if we hadn't -- if this had not come to light, you mean?

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 OK to have an unauthorized server in their basement?

COMEY: They better not. That's one of the reasons I'm talking about it.

HURD: So but -- what is the ramifications of them doing that? What is the -- what is -- you know how is there going to be any consequences levered if it's not being levered here? Because indeed, this is -- you're setting a precedent.

COMEY: 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.

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?

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 that 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...

HURD: And that person mishandling the most sensitive information that this government can collect is -- is not fair? It's not fair to punish someone who did that? COMEY: Not on these facts. If 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.

CHAFFETZ: I thank -- thank...

HURD: Mr. Chairman, I yield back the time I do not have.

CHAFFETZ: Thank the gentleman. I will now recognize the gentleman from Pennsylvania, Mr. Cartwright, for five minutes.

REP. MATT CARTWRIGHT (D), PENNSYLVANIA: Thank you, Mr. Chairman. I'd like to open by acknowledging my colleague from North Carolina, Mr. Meadows -- here he comes back in the room -- for -- 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 is 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 unequaled." So your integrity was -- 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?

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.

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?

COMEY: Yes.

CARTWRIGHT: How many people were on this team?

COMEY: It changed at various times, but somewhere between 15 and 20. Then we used a lot of other FBI folks to help from time to time.

CARTWRIGHT: How many hours were spent on this investigation?

COMEY: We haven't counted yet. They -- they -- I said to them, they moved -- they put three years of work into 12 calendar months.

CARTWRIGHT: And how many pages of documents did the FBI review in this investigation?

COMEY: Thousands and thousands and thousands.

CARTWRIGHT: And the agents do the document review, were they qualified or were they unqualified?

COMEY: They were an all-star team. They are a great group of folks.

CARTWRIGHT: How about Secretary Clinton? Did she agreed to be interviewed?

COMEY: Yes.

CARTWRIGHT: Come in voluntarily without the need of a subpoena?

COMEY: Yes.

CARTWRIGHT: Was she interviewed?

COMEY: Yes.

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?

COMEY: She was interviewed by the kind of folks the American people would want doing the interview. Real pros.

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 "c"s on them.

Were they properly documented? Were they properly marked according to the manual?

COMEY: No.

CARTWRIGHT: According to the manual, and I ask unanimous consent to enter this into the record, Mr. Chairman.

CHAFFETZ: Without objection...

CARTWRIGHT: According to the manual, if you're going to classify something, there has to be a header on the document. Right?

COMEY: Correct.

CARTWRIGHT: Was there a header on the three documents that we've discussed today that had the little "c" in the text someplace?

COMEY: No. They were three e-mails. The "c" was in the body, in the text, but there was no header on the e-mail or in the text.

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?

COMEY: That would be a reasonable inference.

[11:55:00] CARTWRIGHT: All right. I thank you for your testimony, Director. I yield back.

CHAFFETZ: I thank the gentleman. Will now recognize the gentleman from Colorado, Mr. Buck, for five minutes.

DR. KEN BUCK (R), COLORADO: Good morning, Director Comey.

COMEY: Morning, sir.

BUCK: Thank you for being here. I also respect your commitment to law and justice and your career. And I -- first question I want to ask you, is this hearing unfair? Has it been unfair to you?

COMEY: No.

BUCK: Thank you. One purpose of security procedures for classified information is to prevent hostile information -- hostile nations from obtaining classified information. Is that fair?

COMEY: Yes.

BUCK: And do -- did hostile nations obtain classified information from Secretary Clinton's servers?

COMEY: I don't know. It's possible, but we don't have direct evidence of that. We couldn't find direct evidence.

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?

COMEY: Yes.

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. COMEY: Most do. Unlawfully, knowingly, willfully is our standard formulation for charging a case.

BUCK: And there are also a variety of others between the knowingly and willfully standard and the strict liability standard. And in many, like environmental crimes, have a much lower standard because of the toxic materials that are at risk of harming individuals. Is that fair?

COMEY: That's correct.

BUCK: Okay. Let's talk about this particular statute, 18 U.S.C. 1924. I take it we could all agree -- you and I can agree on a couple of the elements. She, Secretary Clinton was an employee of the United States.

COMEY: Correct.

BUCK: And as a result of that employment, she received classified information.

COMEY: Correct.

BUCK: And there is 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 removed 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 this statute?

COMEY: I don't.

BUCK: And that would indicate to you that there is a lower threshold for intent?

COMEY: No, it wouldn't.

BUCK: Why?

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.

BUCK: So -- and you would apply that same standard to environmental (inaudible)?

COMEY: No, if it specifically says it is a negligence-based crime, I don't think a judge would impute that.

BUCK: But -- but Congress specifically omitted the word "willfully" from this statute, and yet you are implying the word willfully in the statute. Is that fair? COMEY: That's fair.

BUCK: Okay. So what this statute does say is "knowingly removed such materials without authority." Is it fair that she knew that she didn't have authority to have this server in her basement?

COMEY: Yes, that's true.

BUCK: And she knew that she was receiving materials, classified information, in -- in the e-mails that she received on -- on her BlackBerry and other devices.

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.

BUCK: But that's not my question.

COMEY: (Inaudible) evidence of that.

BUCK: That's not my question. My question, in fairness, is did she know that she was receiving information on the servers at her location?

COMEY: Oh, I'm sorry. Of course, yes. She knew she was using her e-mail system.

BUCK: And as secretary of state, she also knew that she would be receiving classified information.

COMEY: Yes, in general.

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.

COMEY: You're asking me did she have the -- 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?

BUCK: Well, we've already established that she knew as secretary of state that she was going to receive classified information in her e- mails. And so did she retain such information that she received as secretary of state on her servers in her basement?

[12:00:02] COMEY: She did in fact.