FBI Director James Comey handed Hillary Clinton’s political foes new ammunition Thursday on her mishandling of classified material, even as he defended his conclusion that the Democratic presidential candidate didn’t violate the law.
Under intense questioning from Republicans in a nearly five-hour congressional hearing, Comey said he had not been swayed by political considerations when he recommended Clinton should not be prosecuted for setting up a private email server when she was secretary of state.
Comey, however, acknowledged that several of Clinton’s public statements about the arrangement weren’t accurate, including her assertion under oath to Congress that she had neither sent nor received any items marked classified.
“That is not true,” Comey said in a rapid-fire exchange with Republican Rep. Trey Gowdy of South Carolina. “There were a small number of portion markings.”
Three emails were marked with a “(C),” which indicates material is confidential, the lowest level of classification, he testified.
Comey testified that her initial statement that she had not emailed classified material was also inaccurate.
The House Oversight and Government Reform Committee called Comey to testify only two days after he’d held a news conference to announce the bureau’s recommendation in uncharacteristic detail.
As a result of the timing, Democrats slammed the hearing as political theatrics aimed only at hurting Clinton as a candidate.
“The director’s explanations shut the door on any remaining conspiracy theories once and for all,” Clinton campaign spokesman Brian Fallon said of Comey’s testimony. “While Republicans may try to keep this issue alive, this hearing proved those efforts will only backfire.”
Yet Comey used words to describe Clinton’s behavior that have already been repeated in the GOP presidential campaign against her, among them that she and her staff had been “extremely careless” in how they handled classified material.
Rep. Jason Chaffetz, a Utah Republican and the committee’s chairman, asked Comey whether Clinton had lied to those who interviewed her for 3 1/2 hours Saturday about the classified material she’d handled through an unauthorized server in the basement of her New York home.
“To the FBI?” Comey responded. “We have no basis to conclude that she lied to the FBI.”
Comey declined to answer directly when Chaffetz asked whether Clinton had done “anything wrong.” Comey said declining to prosecute someone for mishandling classified information doesn’t close the door on other administrative sanctions.
Chaffetz nonetheless vowed to send a criminal referral to the FBI that requests the bureau investigate whether she misled Congress.
Chaffetz added that he was “mystified, confused” by Comey’s recommendation to not prosecute.
If ordinary citizens acted as Clinton did, “they’d be in handcuffs,” Chaffetz said. “They’d be on the way to jail.”
The FBI found Clinton and her staffers should have known that an unclassified system was “no place” for their email conversations.
The bureau also concluded “hostile actors” could have gained access to the email accounts of Clinton associates whom she regularly contacted.
Comey, however, said Clinton’s mishandling of classified material was not held to a different standard from that of lower-ranking military or civilian officials.
In fact, he testified that if he had recommended prosecution, he would have broken with nearly a century-long Justice Department tradition of not seeking criminal charges in cases of “gross negligence.”
“So given that assessment of the facts, and my understanding of the law, my conclusion was and remains no reasonable prosecutor would bring this case,” he said.
Comey also drew a sharp contrast between Clinton’s case and that of former CIA Director David Petraeus, a war hero who pleaded guilty last year to a misdemeanor charge of giving classified material to his lover and biographer, Paula Broadwell.
In answer to questions from Rep. Elijah Cummings of Maryland, the ranking Democrat on the Republican-led House Oversight and Government Reform Committee, Comey confirmed that eight notebooks Petraeus had kept at his home included the identities of covert officers, U.S. intelligence capabilities and notes on discussions with the president.
“He knew what he was doing violated the law,” Comey said of Petraeus, adding that the retired four-star general, revered for his service in Iraq and Afghanistan, was not charged with obstruction of justice despite lying about his actions.
While Clinton handled at least three emails with classified information, Comey suggested that she may not have understood the classified marking before paragraphs containing secret material.
“It’s possible that she didn’t understand what a ‘C’ meant in the body of an email,” Comey said.
He added that the former first lady and former secretary of state might not have been as “technically sophisticated” as people assume and she did not have a computer in her office.
Comey said that all of Clinton’s aides who saw her emails had security clearances. But he said people without security clearances had had access to the server itself in her basement.
Asked how many, Comey paused and said: “More than two, less than 10.”
In a direct response to Republican presidential candidate Donald Trump’s accusations that the decision had been “rigged,” Comey dismissed political agendas.
In fact, he testified he had kept Tuesday’s announcement secret even from Attorney General Loretta Lynch, who officially closed the case against Clinton on Wednesday.
He added that he had conferred with career FBI agents who agreed with his assessment.
“I want the American people to know we did this the right way,” he said. “We didn’t carry political water for anybody.”