Nearly five hours into the testimony Thursday before the House Oversight and Government Reform Committee of FBI Director James B. Comey, who was called in to explain his recommendation that the Department of Justice not charge Hillary Clinton for her mis-handling of classified electronic correspondence, came an exchange between the chairman and the director.
The director announced his recommendation Tuesday — and less than 48 hours later he was sworn in by Rep. Jason Chaffetz (R – UT), the committee chairman, and subjected to questions from Republicans, who took turns with Democrats (who gave the director expressions of gratitude and encouragement).
In his announcement Tuesday, and again to the committee, Comey said he did not think it was appropriate to indict Clinton because he did not think he could prove criminal intent motivated what he did call the former first lady’s “extreme carelessness.” Comey’s use of “extreme carelessness” is his way of acknowledging Clinton’s misconduct without triggering the “gross negligence” standard in federal law.
The “gross negligence” standard is meant to give prosecutors room without their having to prove criminal intent. Comey said he could not prove criminal intent and the conduct stopped short of a standard that would allow prosecutors to proceed without proving intent.
Chaffetz and other Republicans kept plumbing the concept of intent, but they also pressed the director on consequences.
Coming back to the issue of consequences, the chairman asked the director if the man Clinton or her husband hired to maintain the email server, Brian Pagliano, kept at the couple’s Chappaqua, New York home, had a security clearance. The director said that there were more than two and fewer than 10 people who had worked on the server, but the FBI did not investigate them because they were not party to any of the actual email exchanges.
Chaffetz asked if there were any consequences for Clinton’s handling of the server. Comey said there was nothing he could do.
Next, Chaffetz asked about the lawyers Hillary Clinton hired to review her emails for the State Department to determine which ones would be turned over because they were work-related and which ones would be destroyed. “Did Hillary Clinton’s attorneys have security clearances needed?”
“They did not,” the director said.
What then are the consequences for that? the chairman asked. “Is there any consequence for an attorney rifling through Hillary Clinton’s emails without a security clearance?”
Comey said there were no criminal consequences. “But, a great deal of concern.”
The Utah congressman pressed the director again.
Does it matter if someone has a clearance or not, or is everything fine as long as nobody is trying to sell information to the Russians or the Chinese? he asked.
“Of course, it matters,” Comey said.
“There are no consequences, director.”
“I don’t know what consequence you have in mind.”