The Corner

Law & the Courts

Trey Gowdy Targets FBI Director Comey’s Special Treatment of Clinton

Representative Trey Gowdy excoriated FBI director James Comey over his handling of Hillary Clinton’s e-mail scandal yesterday in a House Judiciary hearing. After granting dubious immunity deals to various aides and declining to prosecute Clinton, Comey has faced steep criticism of his judgment, and Gowdy grilled him on his rationale.

The video is worth watching, and the exchange starting at 3:15 especially shows Gowdy laying out the ways in which all the grounds for prosecuting Clinton were there:

Intent is awfully hard to prove. Very rarely do defendants announce ahead of time, “I intend to commit this crime on this date, go ahead and check the code section — I’m going to do it.” That rarely happens. So you have to prove it by circumstantial evidence, such as whether or not the person intended to set up an e-mail system outside the State Department. Such as whether or not the person knew or should have known that his or her job involved handling classified information. Whether or not the person was truthful about the use of multiple devices.

I think you would agree with this, Director: False exculpatory statements are gold in a courtroom. I would rather have a false exculpatory statement than a confession. I would rather have someone lie about something — and it be provable that that is a lie — such as, that “I neither sent or received classified information.” Such as that “I turned over all my work-related e-mails.” All of that, to me, goes to the issue of intent.

For those who may have to prosecute these cases in the future — what would she have had to do to warrant your recommendation of a prosecution?

Comey defended his definition of intent, and added another protection against Clinton that the lack of previous prosecutions somehow absolves Clinton of violating the statute:

We’d have to be able to prove beyond a reasonable doubt a general awareness of the unlawfulness of your conduct — you knew you were doing something you shouldn’t do. Obviously that is on the face of the statute itself. Then you need to consider who else has been prosecuted in what circumstances, because it is all about prosecutorial judgment.

Gowdy shot that argument down:

But the way to prove that is whether the person took steps to conceal or destroy what they’ve done — that is the best evidence you have that they it was wrong, that they lied about it.

Comey conceded, “It’s awfully — it is very good evidence.”

Gowdy finishes by describing his admiration for the FBI, and saying that it is personally important to him that the FBI is highly regarded with the public.

Gowdy’s measured tone, respectfulness to Director Comey, and sincerity about the role of the FBI demonstrate how disappointing the bureau’s actions are.

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