Rep. Trey Gowdy (R-SC) demolished FBI director James Comey’s claim Thursday that the government lacked sufficient evidence of criminal intent to prosecute former Secretary of State Hillary Clinton for mis-handling classified information.
Gowdy, referring to his background as a prosecutor, and peppering Comey with questions, demonstrated that the kind of evidence the government already had on Clinton — such as hiding her private email server — was often used to show intent.
GOWDY: …I’m going to ask you to put on your old hat. False exculpatory statements — they are used for what?
COMEY: Well, either for a substantive prosecution, or for evidence of intent in a criminal prosecution.
GOWDY: Exactly. Intent, and consciousness of guilt, right? Is that right?
GOWDY: 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. You would argue all of that under the heading of intent.
You would also be arguing the pervasiveness of the scheme: when it started, when it ended, and the 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 entires, or the missing daily calendar entires as a common scheme or plan to conceal.
Two days ago, Director, you said a reasonable person in her position should have known a private email is no place to sand and receive classified information. And you’re right: an average person does know not to do that. This is no average person: 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 [Thomas] 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 e-mails for almost two years, and only turned them over to Congress because we found out she had a private e-mail account.
So you have a rogue e-mail system set up before she took the oath of office; thousands of what we now know to be classified e-mails, some of which were classified at the time; one of her more frequent e-mailed comrades was, in fact, hacked, and you don’t know whether or not she was; and this scheme took place over long period of time and resulted in the destruction of public records — and yet you say there is insufficient evidence of intent?
You say she was “extremely careless,” but not intentionally so. Now, you and I both know intent is really difficult to prove. Very rarely do defendants announce, “On this day, I intend to break this criminal code section. Just to put everyone on notice, I am going to break the law on this day.” 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.”
The statute to which Gowdy referred is the one under which Comey said the FBI had investigated Clinton: namely, 18 U.S.C. section 793(f), which requires only a showing of “gross negligence,” not intent, in mis-handling classified materials.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News. His new book, See No Evil: 19 Hard Truths the Left Can’t Handle, will be published by Regnery on July 25 and is available for pre-order through Amazon. Follow him on Twitter at @joelpollak.