Go read Cortney's post featuring video of Congressman Trey Gowdy leading James Comey through a parade of lies Hillary Clinton has told about her email misconduct since her improper scheme came to light last year. At first blush, it seems as though Gowdy is merely embarrassing Clinton, inducing the FBI director into issue rapid-fire debunkings of her many untruths. Sure, it's good political theater that underscores how deeply and consistently dishonest Clinton has been with voters, the media and Congress (under oath) throughout this imbroglio. But it was more than that. The key bit comes about two minutes into the clip, when Gowdy, a former federal prosecutor, asks Comey about how "false exculpatory statements" (a.k.a. self-serving lies) can be used against a defendant in a criminal case. Watch:
GOWDY: 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?
COMEY: Right.
The South Carolinian goes on to give a bit of a speech that may sound like grandstanding and lecturing, but he was actually making a crucial point by following through on the logic. Let's take a step back briefly: During his testimony, Comey effectively admitted that he was leaning on precedent to more or less ignore the fact that the law as written does not require proof of intent in order to launch a "gross negligence" prosecution. (Speaking of that term, Comey said during the hearing that Hillary's conduct was "the definition of negligence"). Set aside the fact that Congress -- you know, the actual lawmakers -- have not seen fit to change the letter of the law over the century of enforcement, or lack thereof, Comey references. Set aside the question of whether it's within Comey's authority to basically rewrite laws based on precedent. And set aside the point that Hillary's decision to order the creation of her unsecure email scheme was a manifestly intentional act -- especially when no "reasonable person" in her position could have thought such an act was appropriate, according to Comey's own words.
What Gowdy is drilling down on here is that ex post facto lies to cover up improper or illegal conduct is routinely presented by government lawyers as evidence of willfulness and intent. "Very rarely do defendants announce, 'on this date, I intend to break this criminal code section,'" Gowdy explains, stating the obvious. Prosecutors have to demonstrate intent through other means, such as...highlighting disproven false exculpatory statements. In other words, Gowdy is asking, how can her many lies be construed as anything other than consciousness of guilt? And based on the prosecutorial practices Comey described in this exchange, how can he continue to coherently argue that Mrs. Clinton lacked intent? Good questions. There isn't a persuasive answer to them, aside from 'under immense outside pressures, Comey blinked.' Here's another little chestnut from today's proceedings:
UPDATE: FBI director says questionable whether Clinton had sophisticated-enough understanding to recognize classified email markings
— Reuters Politics (@ReutersPolitics) July 7, 2016
A former First Lady, United States Senator and Secretary of State was too unsophisticated to understand how classified markings work? Let's make her president, Charles Cooke snarks; more seriously, though, she insisted with great vehemence on many occasions that there were no emails marked as classified on her server. That was a lie. And the excuse for that lie is she's too obtuse and clueless to have known better? This highly-educated and notoriously calculating veteran of high-level political service? Please. Also, since there was so much discussion of precedent earlier, read this. Parting thought, via former US prosecutor Shannen Coffin: Forget the "gross negligence" felony. How on earth did the FBI pass on the slam-dunk misdemeanor charge related to storing "such [classified] documents or materials at an unauthorized location"?
UPDATE - No intent?
Dear God, Comey admits under oath her attorneys scrubbed devices in a way to prevent forensic recovery.. Astounding
— Stephen Miller (@redsteeze) July 7, 2016
And another layer of malfeasance:
I guess she just accidentally gave a ton of classified e-mail to a bunch of people she knew didn't have clearance. https://t.co/UEejQh3R1p
— Sean Davis (@seanmdav) July 7, 2016
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