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For a brief, electric moment, the air in the House Oversight Committee hearing room crackled with tension as two veteran prosecutors faced off about the elements of criminal intent in the context of a presidential race of historic importance.

The exchange came early in the nearly five-hour testimony of FBI Director James Comey when Congressman Trey Gowdy (R-SC) asked a brisk series of questions pertaining to the Bureau’s investigation into former Secretary of State Hillary Clinton.

Rep. Jason Chaffetz (R-UT), chair of the House Oversight Committee, called the emergency hearing after Comey announced his decision not to recommend the filing of criminal charges against Clinton relating to her unauthorized use of a private email server during her tenure from 2009 to early 2013.

Clinton will be named as the Democrat nominee for the presidency at the party’s convention at the end of the month.

The secret server was housed in the basement of her home in Chappaqua, New York, without even basic security systems in place, and was also used for her private, personal emails, as well as Clinton Foundation business.

Comey, a Obama appointee to the post in 2013, has enjoyed a reputation as a smart, ethical prosecutor, but his decision to read a 14-minute point-by-point statement outlining Clinton’s violations of federal law before concluding that he would not recommend criminal charges has caused concern and confusion.

Gowdy, an experienced prosecutor himself, took sharp aim at Comey’s assertion that intent was a required element of the statute, and the result sounded like the type of interrogation each man has undoubtedly conducted with witnesses on the stand.

Mrs. Clinton’s repeated denials and assertions regarding the server at public appearances and on the debate stage, have creating a public record that provided Gowdy with easy fodder.

Asking Comey to “put on put on your old hat,” Gowdy led Comey through the use of false statements as evidence of intent in criminal prosecutions.

“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. Correct?” Gowdy asked.

Comey had no recourse but to agree.

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?

COMEY: 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 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.”


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