Republicans Shred Comey’s ‘Intent’ Defense

If the American people thought that the House Oversight Committee’s emergency hearing on FBI Director James Comey’s decision not to recommend Hillary Clinton’s indictment would adequately explain that decision, they were sorely mistaken.

By 9:55 a.m., members of the committee were settling in their seats and steeling themselves for the long hearing ahead. The hushed silence that fell as Rep. Jason Chaffetz entered the room to begin his duel with Comey was shattered by Comey’s own entrance, his arrival accompanied by a cricket-like cacophony of clicking cameras. By 3 p.m., five hours later, the committee was no closer to obtaining a convincing explanation of Comey’s decision not to indict.

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From the start, Comey stuck to his line that Clinton acted without “criminal intent” as Republicans continually battered the director with examples of her seeming knowledge of wrongdoing.

“Exactly,” replied Gowdy. “Intent and consciousness of guilt.”

In order to successfully charge someone for a crime, prosecutors must not only be able to prove that a crime was committed — actus rheus, or a guilty act — but also that the alleged criminal knowingly and willingly perpetrated the crime — mens rea, a guilty mind.

Comey was adamant that there is no demonstrable evidence of a guilty mind in the Clinton case. It’s not just “what did the person do,” Comey said, but “when they did that thing, what were they thinking.”

“I see evidence of great carelessness but I do not see evidence” that Clinton knowingly and willingly violated the law, he said. He also noted that as far as charging Clinton with gross negligence, only one person in a century has been prosecuted successfully under that statute.

“No reasonable prosecutor would bring the second case in 100 years on gross negligence,” Comey said. He also noted that the Justice Department has “grave concerns about whether it’s [constitutionally] appropriate to prosecute someone for gross negligence.”

The explanation did not appear to satisfy the Republicans present. Indeed, they seemed more frustrated than the legion of congressional interns waiting in line outside, desperate for a chance to get into the room. Comey repeated his assertions time and time again, and time and time again it was clear by the Republican committee members’ stone-faced stares that they simply weren’t buying it.

The Republicans’ contention is that Clinton’s numerous lies to Congress about her private email server are more than enough evidence that suggests Clinton acted in bad faith and could — and should — be prosecuted.

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“She affirmatively rejected efforts to give her a state.gov account, she kept these private emails for almost two years and only turned them over to Congress because we found out she had a private account,” Rep. Trey Gowdy said.

While this may seem like more than enough evidence of intent to conceal illegal acts to the average American, it was evidently not enough for Comey and the FBI.

Indeed, during a rapid-fire round of questioning, Rep. Gowdy demonstrated the full extent of Clinton’s deceit by having Comey confirm that her numerous protestations of innocence over the last year were indeed false.

“False exculpatory statements, they are used for what?” Gowdy asked Comey.

“Well, either for substantive prosecution or evidence of intent in a prosecution,” Comey replied.

“Exactly,” replied Gowdy. “Intent and consciousness of guilt.”

Unfortunately, most of Clinton’s false exculpatory statements were given under oath to Congress or given under no oath to the media. For congressional testimony to be part of an FBI investigation, it must be submitted to the FBI by Congress — and for whatever reason this was not done so before the email investigation was closed.

This may indeed have been the key technicality that allowed Clinton to avoid prosecution. Despite the overwhelming evidence that Hillary Clinton lied both to Congress and the American people about her private email server, “there is no basis for concluding that Clinton lied to the FBI,” Comey said.

When asked why Clinton’s sworn congressional testimony was ignored, Comey explained that the FBI can only review congressional testimony if it receives a referral from Congress. “You’ll have one in a few hours,” Chaffetz promised.