Rep. Ken Buck (R-CO) spoke exclusively with Breitbart News following FBI Director James Comey’s testimony before the House Oversight Committee on Thursday in which Comey defended his decision not to recommend a criminal prosecution for presumptive Democratic nominee Hillary Clinton over her use of a private email server during her time as Secretary of State.
“It’s clear to me that Hillary Clinton satisfied the first two elements of the crime,” Buck explained to Breitbart News, referencing the elements of the statute, which he questioned Comey about one-by-one. “The third element was the intent element and it’s the element that Director Comey identified as the difficult element to prove, but he was raising the intent standard to a willfulness standard.”
Congress didn’t put the word ‘willful’ into the statute for a reason. It’s a misdemeanor statute and it’s meant to cover individuals who don’t willfully mishandle information. All she has to do to meet the intent requirement is to knowingly accept information at an unauthorized location and she clearly did that. And he agreed with me that she did that, but she didn’t meet this additional standard.
When asked what Comey cites for supporting an increased level of intent required for prosecution, Buck, who was a prosecutor for more than 15 years, had never heard of Comey’s justification.
“He says it is Department of Justice policy,” Buck stated, referencing the reason for an increased level of intent placed into the statute, although it’s not in the text. “It’s frustrating because if Congress says this is the law, to have a Department of Justice raise the standard, they are once again rewriting the law.”
I was a prosecutor at the Department of Justice, both at main Justice in D.C. and at the U.S. Attorney’s Office in Colorado for 15 years, that is not a policy at the Department of Justice and I understand that he wants to be especially careful in dealing with a high profile figure and especially a situation that could affect the outcome of a presidential election. But to say it’s a policy at the Department of Justice, I’m not familiar with that policy and I prosecuted for 15 years. I think he is trying to make sure that they get a conviction by being able to over prove a case and in this situation, I think that’s a mistake.
Buck added that he believes Rep. Trey Gowdy (R-SC) did a good job of exposing Clinton’s false exculpatory statements that she had previously made about her emails, which have now been proven false by the FBI investigation. He suggests the false statements help prove there was intent.
One of the ways that prosecutors prove intent is to show the false exculpatory statements …where a defendant, a criminal, will say, ‘I didn’t do this.’ For example, ‘I never received any classified material on my email server.’ And then you go out and you find that there was classified material. The fact that the server was wiped clean, according to Director Comey, so that it could not be forensically retrieved is important information — that isn’t something you have to do when you’re trying to hide something from law enforcement and that’s exactly what they’re trying to do. There was a lot of evidence of intent. Even though it wasn’t a confession, it was evidence that could be used at trial and evidence that I think would have helped to convict her.
Buck stressed that Congress must make sure the intent is clear in the statute. He also said he thinks Comey “will be getting a referral on Hillary Clinton” from Congress regarding her earlier testimony before Congress about her a private email server. Buck said he hopes Comey will “do an expedited review of other crimes she may have committed.”