Endless efforts by congressional Republicans to foil or foul up Hillary Clinton’s run for the presidency have hit a new low. The members of Congress involved cannot be sued for defamation, since they are protected by the “Speech and Debate Clause” of the Constitution, but the fact that they are not merely smearing the former secretary of state but are trying to send her to jail on phony charges of perjury and lying to Congress is beyond the pale of dirty politics. It is an abuse of power and their effort to criminalize politics could one-day blowback on them and result in their going to jail on bogus charges. They are employing a tactic that could undermine democracy, so it is appropriate to get the facts out.
Unfortunately, to explain these seamy tactics takes a bit more space than the normal column, but the facts need to be placed on the record. Without understanding the underlying testimony involved it is not possible to appreciate the falsity and absurdity of the charges against Mrs. Clinton. It is easy to call someone a liar or a perjurer. Not so easy to unpack the charges. A smear like this—and Hillary has had a career of them—takes space to address and debunk, which is why it probably has not been done. I really undertook this drill for myself because I wanted to see what was going on. I believe Hillary Clinton is far too savvy and smart to lie to Congress. And as the following information shows, I am correct and she has not done so.
That two of the most powerful committee chairs in the House of Representatives have trumped up these bogus charges is stunning to me. This is not the way mature democracies like ours are supposed to operate. These men—along with their staff and the Republican leadership that are part of this ploy—are blatantly abusing congressional powers. The out-front leaders of this squalid action are Bob Goodlatte, chair of the Committee on the Judiciary and Jason Chaffetz, chair of the Committee on Oversight and Government Reform. They claim that Secretary Clinton lied during her lengthy testimony before the House Select Committee on Benghazi on October 22, 2015. The purported basis of their claim is the statement on July 5 and testimony on July 7, 2016, by FBI Director James Comey regarding the FBI investigation of Secretary Clinton’s use of a private email system during her tenure in office. After congressional Republicans failed to criminalize her use of a private email system, they now want her charged with perjury or a criminally false statement.
On July 11, 2016, Goodlatte and Chaffetz referred the matter to the U.S. Attorney for the District of Columbia for criminal prosecution. When this produced only a form letter response from the Department of Justice, and no real headlines, they had their staff plow through the record of Secretary Clinton’s marathon all day and into the night testimony on October 22, 2015, and they sent a revised letter on August 15, 2016, outlining their perjury case in four areas where Secretary Clinton’s sworn testimony is “at odds with the FBI’s findings” as reported by Director Comey, namely:
(1) Whether she sent or received emails that were marked classified at the time; (2) whether her attorneys reviewed each of the emails on her personal email system; (3) whether there was one, or more servers that stored work-related emails during her time as Secretary of State; and (4) whether she provided all her work-related emails to the Department of State.
Goodlatte and Chaffetz proceed to lay out what they paint as conflicts between Secretary Clinton’s testimony and that of Director Comey, suggesting that Mrs. Clinton violated two criminal statutes:18 U.S.C. § 1621, the general perjury statute, and § 1001, the provisions covering false statements. Before looking at Secretary Clinton’s testimony, and that of Director Comey which Republicans claim puts the lie to Mrs. Clinton, a brief review of these statutes (in a nutshell without citations) may be helpful.
The Perjury and False Statements Statutes
Perjury is set forth in Title 18 of the U.S. Code, section 1621: “Whoever having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true… is guilty of perjury.” Punishment for perjury calls for a fine and/or up to five years’ imprisonment. Stated a bit differently, the elements of perjury that would apply in Secretary Clinton’s situation are (1) knowingly and willfully making a (2) false (3) material declaration (4) under oath (5) before a properly constituted proceeding of Congress. The essence of the crime is the willful untruth of a material statement made when under oath.
In passing, from the public record it is not clear that Secretary Clinton was given the oath before a properly constituted committee, which would require a quorum. Chairman Trey Gowdy mentioned in his opening remarks that Secretary Clinton had already been sworn. Later (and sparse) press coverage indicates that as a courtesy to Secretary Clinton, she was given the oath privately. Whether she was properly placed under oath, as well as whether the statements the Republicans are calling into question are material, will be set aside for purposes of my discussion, for two reasons. First, these are technicalities and it is clear from the record that she did not lie to the committee, so the technicalities of perjury can be passed over, and secondly because Secretary Clinton is also charged with violation of the false statement statute, which does not require an oath, and some of the other niceties of perjury, I will keep the focus on the truthfulness of her testimony.
To prove perjury, it should be noted however, requires showing beyond a reasonable doubt that the statement was made with “willful intent” and the speaker knew the statement was false. It is not perjury or a punishable false statement when the testimony results from “confusion, mistake or faulty memory.” Inconsequential inconsistencies or conflicts in testimony do not constitute perjury or false statements. An intentionally misleading but literally true answer cannot form the basis for prosecution. In short, perjury cannot be proven simply by showing the testimony of a witness is inconsistent with the statements of another witness, as the Republicans seek to do with the Goodlatte/Chaffetz letter, and with their video clips of Clinton vs. Comey testimony. Finally, to convict of perjury it must be proven by more than one witness, or one witness plus corroborative evidence.
False statement prohibition is set forth in Title 18 of the U.S. Code, section 1001: “Whoever, in any matter within the jurisdiction of the … legislative … branch of the Government of the United States, knowingly and willfully (1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact; [or] (2) makes any materially false, fictitious, or fraudulent statement or representation … shall be fined [and/or] imprisoned not more than 5 years.” While this statute has been subject to much criticism, its broad language has been much used. It applies to all statements, written and oral, sworn and unsworn, voluntarily given or required by law. The core of the offense is a false representation, or concealment, by willful non-disclosure, of a material fact through a “trick, scheme, or device.” While similar to perjury, a false statement under this statute is broader. In addition to not requiring the statement be made under oath, it does not require two witnesses, or one witness with corroboration.
Clearly, both statutes criminalize lies (intentional and knowing false statements) before a committee of Congress. The hard evidence, however, shows that Hillary Clinton did not lie, rather those charging her have distorted her testimony, or claimed she had information she simply did not have at the time she testified. It is pretty ugly stuff, made even uglier because it is being promoted by two high ranking Republican chairmen who are, the facts show, trying to frame her. So let me explain what I found with each of their charges.
Spoiler: The answer to each of the following four caption questions raising the GOP charges is NO!
(1) Does Comey’s Testimony Show Secretary Clinton Lied When Testifying She Did Not Send or Receive Emails Marked Classified?
The Goodlatte and Chaffetz letter first addresses Secretary Clinton’s testimony when being questioned by Representative Jim Jordan on October 22, 2015, during the following exchange. Rather than cite the material in the letter, I have taken the relevant testimony from the Federal News Service published transcript, and highlighted the alleged perjury in bold and underlining:
JORDAN: OK. In your statement, you said, “which is protected by the Secret Service.” Why did you mention the Secret Service?
CLINTON: Well, because…
JORDAN: And—here’s what—could a Secret Service agent standing at the back door of your house protect someone in Russia or China from hacking into your system? Why did you mention the Secret Service agent?
CLINTON: Out of just an abundance of being transparent.
JORDAN: Transparent. I—how—what’s the relevance to protecting from (ph) classified information?
CLINTON: There was nothing marked classified on my e-mails, either sent or received. And I want to respond…
JORDAN: You used the right term there. Used “marked”. That’s the one—that’s what you—you used the revised statement there.
CLINTON: …well—but that’s—well, Congressman, there was a lot of confusion because many — many Americans have no idea how the classification process works. And therefore I wanted to make it clear that there is a system within our government, certainly within the State Department…
JORDAN: (inaudible) one more question (inaudible).
CLINTON: …where material that is thought to be classified is marked such, so that people have the opportunity to know how they are supposed to be handling those materials…
JORDAN: I got—I got one second.
CLINTON: …and that’s why it became clearer, I believe, to say that nothing was marked classified at the time I sent or received it.
To take issue with this testimony, the Goodlatte/Chaffetz letter refers to Director Comey’s public statement on July 5, 2016, where he noted, “Only a very small number of the e-mails containing classified information bore markings indicating the presence of classified information.” And the director’s further testimony in the following exchange with select committee on Benghazi chairman Trey Gowdy on July 7, 2016, before the full Committee on Oversight and Government Reform, at the end of the hearings. Note the questions are general as are the answers, as they both simply slide over the details that were addressed in earlier testimony, like whether Secretary Clinton was aware that classified information was sent and received via email, and Comey makes clear she was not (e.g., see exchange of Comey with Congressman Meadows, which follows):
GOWDY: Good morning, Director Comey. Secretary Clinton said she never sent or received any classified information over her private e-mail. Was that true?
COMEY: Our investigation found that there was classified information sent…
GOWDY: So it was not true?
COMEY: That’s what I said.
GOWDY: OK. Well, I’m looking for a little shorter answer so you and I are not here quite as long. Secretary Clinton said there was nothing marked classified on her e-mails, either sent or received. Was that true?
COMEY: That’s not true. There were a small number of portion markings on, I think, three of the documents. [Note: Comey adds in the exchange that follows below that she was not aware that these improperly marked emails contained classified so this answer is very incomplete.]
GOWDY: Secretary Clinton said, “I did not e-mail any classified material to anyone on my e-mail, there is no classified material.” Was that true? [Note: This is not a statement she made during her testimony. It appears Gowdy is referring to her answer to a question at the March 2015 press conference.]
COMEY: There was classified material e-mailed.
Gowdy, a former prosecutor, was showing how to abuse the rules of evidence to draw an incomplete picture of what Secretary Clinton had or had not done. There is no basis in this incomplete information for either a charge of perjury or false statement. The Goodlatte/Chaffetz letter next refers to the following exchange with Congressman Mark Meadows of North Carolina regarding the fact the FBI found “three documents on Secretary Clinton’s private server contained classified information clearly marked ‘Confidential.’” To the displeasure of this Republican member, the Director explained that Secretary Clinton did not realize that the incomplete markings on her email indicated classified paragraphs. In short, Comey exonerates the Secretary from any criminal intent. Comey also failed to mention that the email was not properly marked as classified. [Emphasis in the testimony added]:
MEADOWS: * * * So let me go on to another one. On October 22, she [Sec. Clinton] said, “there was nothing marked classified on e-mails either sent or received,” and in your statement, you said, a “very small number of e-mails contained classified information, bore markings indicating the presence of classified information at the time.” So she makes a statement that says there was no markings. You make a statement that there was. So her statement was not true?
COMEY: That one I actually have a little insight into her statement because we asked her about that. There were three documents that bore portion markings where you’re obligated when something is classified to put a marking on that paragraph. [Note: there is no such thing as “portion markings” in a properly classified document during the tenure of Secretary Clinton. What Comey is actually saying that the person who sent the email to Clinton was obligated to add paragraph markings but failed to add the header and footer markings, not to mention the other required information.]
COMEY: There were three that bore “c” which means that’s confidential classified information.
MEADOWS: So a reasonable person who has been a Senator, a Secretary of State, a First Lady, wouldn’t a reasonable person know that that was a classified marking? As a secretary of state, a reasonable person? That’s all I’m asking.
COMEY: Before this investigation, I probably would have said, yes. I’m not so sure. I don’t find it incredibly…
MEADOWS: Director Comey, come on. I mean, I have only been here a few years and I understand the importance of those markings. So you’re suggesting that a long length of time that she had no idea what a classified marking would be? That’s your sworn testimony today?
COMEY: No, no, not that she would have no idea what a classified marking would be, but it’s an interesting question as to—the question about sophistication came up earlier—whether she was sophisticated enough to understand what a “c” means.
MEADOWS: So you’re saying the former Secretary of State is not sophisticated enough to understand a classified marking?
COMEY: That’s not what I said.
MEADOWS: That’s a huge statement.
COMEY: That’s not what I said. You asked me did I assume someone would know. Probably before the investigation, I would have, I’m not so sure of that answer any longer. I think it’s possible—possible that she didn’t understand what a “c” meant when she saw it in the body of the e-mail like that. [Note: Director Comey made no effort to explain that for the document to be properly classified it needed to state its classification at the top and bottom of the document, as well as the name of the person and department/agency who had classified it, and why, along with the date the classification ends. See, e.g. the National Archives instructions on classifying email at this link.]
MEADOWS: After years in the Senate and Secretary of State, I mean, that’s hard for me and the American people to believe, Director Comey. And I’m not questioning your analysis of it, but wouldn’t a reasonable person think that someone who has the highest job of handling classified information would understand that?
COMEY: I think that’s the conclusion a reasonable person would draw. It may not be accurate…
Next the Goodlatte/Chaffetz letter refers to the following exchange with Congressman Ron Desantis of Florida regarding top secret material, and while Director Comey is cutting Secretary Clinton no slack, nor making any effort to explain the situation fully, he certainly makes clear that it was not Secretary Clinton’s actions that resulted in top secret material arriving on her server. Nor does he indicate that she, or her staff, was aware of the fact they were dealing with top secret material. Again, Comey unwittingly exonerates the Secretary. [Emphasis added]:
DESANTIS: How did top secret information end up on the private server, because your statement addressed Secretary Clinton. You did not address any of her aides in your statement. Attorney General Lynch exonerated everybody. That information just didn’t get there on its own, so how did it get there? Were you able to determine that?
COMEY: Yes, by people talking about a top secret subject in an e-mail communication.
COMEY: Not about forwarding a top secret document, it’s about having a conversation about a matter that is top secret.
DESANTIS: And those were things that were originated by Secretary Clinton’s aides and sent to her, which would obviously be in her server, but it was also included Secretary Clinton originating those e-mails, correct?
COMEY: That’s correct. In most circumstances, it initiated with aides starting the conversation. In the one involving top secret information, Secretary Clinton not only received but sent e-mails talking about the same subject.
DESANTIS: And of that top secret information you found, would somebody who is sophisticated in those matters, should it have been obvious to them that was sensitive information?
COMEY: Yes. [Note: Comey does not mention that different departments and agencies of the Executive Branch have long had fundamental differences of what should be considered classified information, and the level of classification. The FBI would classify much more than the State Department.]
DESANTIS: So I guess my issue about knowledge of what you’re doing is, in order for Secretary Clinton to have access to top secret, SCI FBI information, didn’t she have to sign a form with the State Department acknowledging her duties and responsibilities under the law to safeguard this information?
COMEY: Yes. Anybody who gets access to SCI, Sensitive Compartmented Information would sign a read-in form that lays that out. I’m sure members of Congress have seen the same thing.
DESANTIS: And it stresses in that document and other training people would get, that there are certain requirements to handling certain levels of information. For example, a top secret document, that can’t even be on your secret system at the FBI, correct?
DESANTIS: So you have to follow certain guidelines. And I guess my question is, is she’s very sophisticated person, she did execute that document, correct?
COMEY: Yes. [Note: Neither Comey nor Desantis mention that Comey had just explained that Secretary Clinton and her staff were NOT sophisticated in these matters, which he concedes before this exchange ends.]
DESANTIS: And her aides who were getting the classified information, they executed similar documents to get a security clearance, correct?
COMEY: I believe so.
DESANTIS: And she knowingly clearly set up her own private server in order to—let me ask you that, was the reason she set up her own private server in your judgment was because she wanted to shield communications from Congress and the public?
COMEY: I can’t say that. Our best information is that she set it up as a matter of convenience. It was an existing system her husband had and she decided to have a domain on that system.
DESANTIS: So the question is, is very sophisticated, this is information that clearly anybody who had knowledge of security information would know that it would be classified? But I’m having a little bit of trouble to see, how would you not then know that that was something that was inappropriate to do?
COMEY: Well, I just want to take one of your assumptions about sophistication. I don’t think that our investigation established she was actually particularly sophisticated with respect to classified information and the levels and treatment, and so far as we can tell…
DESANTIS: Isn’t she in an original classification of authority?
COMEY: Yes, sir.
DESANTIS: Good grief. Well, I appreciate you coming. I yield back the balance of my time.
In short Director Comey’s statements and testimony provide no evidence whatsoever of perjury or false statements by Secretary Clinton. To the contrary, his testimony exonerates her on the charge that she lied about sending and receiving classified emails on her personal email account because a close reading of his testimony shows Secretary Clinton had no idea she was receiving or sending classified material. In fact, Director Comey—clearly not a Clinton fan—goes out of his way to make it all as murky as possible. There is no perjury or false statements because it is clear Secretary Clinton believed what she was saying was true when she said it—for, in fact, she saw no markings that indicated she was dealing with classified email material.
(2) Does Comey’s Testimony Show Secretary Clinton Lied When Testifying Her Lawyers Went Through Every Single Email?
Chairmen Goodlatte and Chaffetz next suggest that Secretary Clinton lied to Congress when she said her attorneys had gone through all her emails to identify what was personal and what was worked related. In fact, nowhere in her testimony of October 22, 2015, did she make such a statement. (To the contrary, the statements she did make before the House committee on that date are set forth below.) Tellingly, the only person to say that her attorneys had read all her emails was a member of the committee when she was not present on July 7, 2016. Trey Gowdy asked Comey the following leading question: “Secretary Clinton said her lawyers read every one of the e-mails and were overly inclusive. Did her lawyers read the e-mail content individually?” Comey answered, “No.”
Nonetheless, the Goodlatte/Chaffetz letter claims that “[c]ontrary to her sworn testimony, Secretary Clinton’s lawyers did not read each email in her personal account to identify all the work-related messages.” More specifically, they point to the following testimony as perjury or a false statement, specifically the sentence I have highlighted in bold and underlined in the following exchange with Congressman Jim Jordan of Ohio [emphasis added]:
JORDAN: I appreciate—let—and let’s get into that. Those 55,000 pages, there were 62,000 e-mails—total e-mails, on your system. You have stated that you used a multi-step process to determine which ones were private, which ones were public, which ones belonged to you and your family, which ones belonged to the taxpayer. Who oversaw this multi-step process in making that determination which ones we might get and which ones that were personal?
CLINTON: That was overseen by my attorneys and they conducted a rigorous review of my e-mails and…
JORDAN: These are the folks sitting behind you there, Mr. Kendall, Ms. Mills…
CLINTON: Yes, that’s right.
JORDAN: …Ms. Danielsen (ph)? All right. And you said rigorous. What does that mean?
CLINTON: It means that they were asked to provide anything that could be possibly construed as work related. In fact, in my opinion—and that’s been confirmed by both the State Department…
JORDAN: But I’m asking how—I’m asking how it was done. Was—did someone physically look at the 62,000 e-mails, or did you use search terms, date parameters? I want to know the specifics.
CLINTON: They did all of that, and I did not look over their shoulders, because I thought it would be appropriate for them to conduct that search, and they did.
JORDAN: Will you provide this committee — or can you answer today, what were the search terms?
CLINTON: The search terms were everything you could imagine that might be related to anything, but they also went through every single e-mail.
JORDAN: That’s not answering the question. Search terms means “terms”. What terms did you use…
CLINTON: I did — I did not…
JORDAN: And what were the date parameters? What — what date did you start, what was the end date, and the e-mails in between that we’re going to look at?
CLINTON: Well, Congressman, I asked my attorneys to oversee the process. I did not look over their shoulder. I did not dictate how they would do it. I did not ask what they were doing and how they made their determinations.
JORDAN: So you don’t know? You don’t know what terms they used to determine which ones were your e-mails and which ones the State Department got, and therefore we might get?
CLINTON: You know, The State Department had between 90 and 95 percent of all the ones that were work related. They were already on the system. In fact, this committee got e-mails…
JORDAN: I’m not asking about those. I’m asking about the 62,000 that were exclusively on your system.
CLINTON: …90 to 95 percent of all work-related e-mails were already in the State Department’s system.
JORDAN: We—we know the National Archive has—Secretary Clinton, we know the National Archive has said 1,250 were clearly personal. No way we should have—no way you should have sent them to the State Department. And then we also know that 15, you missed, because we got those from Mr. Blumenthal when he came in—was—was—for his deposition.
CLINTON: Thank you.
JORDAN: So if you—you missed 15 you should have given us, and you gave us 1,250 that—not we say, but the national archivist says—you never should have turned over. You erred on both sides. So again, that’s why we want to know the terms. Because if you’ve made a mistake both ways, you may to made—might have made more mistakes. We don’t know.
CLINTON: Well, first of all, you had nine hours with one of my attorneys. And since I think the Democrats just finally released the transcript, I haven’t had a chance…
JORDAN: And I—and I specifically asked Ms. Mills. I did.
JORDAN: I did. I asked her about this and she gave me the—basically the same kind of answer you’re giving me.
CLINTON: Well, she’ll be happy to supplement the record if (inaudible).
JORDAN: But she’s not on the witness stand today. You are, and I’m asking you.
CLINTON: Well, but I—I asked my attorneys to do it. I thought that was the appropriate way to proceed.
According to the Goodlatte/Chaffetz letter “Secretary Clinton’s lawyers did not in fact read all of her emails—they relied exclusively on a set of search terms to identify work-related messages.” [Emphasis added.] Where did Secretary Clinton testify that her lawyers READ all her emails? Nowhere! They cite no testimony whatsoever, for there is none. Surely the writers of this letter know that Secretary Clinton was absolutely correct when she said they “went through every single e-mail,” which they try to spin into something she never said. Her attorneys went through every single email because that is the way computer searches work. Every email was checked by the search terms employed by the Secretary’s attorneys. Goodlatte/Chaffetz make their whole cloth even larger as they quote Director Comey’s July 5, 2016, statement at the FBI to create what they pretend to be a lie:
The lawyers doing the sorting for Secretary Clinton in 2014 did not individually read the content of all of her e-mails, as we did for those available to us; instead, they relied on header information and used search terms to try to find all work-related e-mails among the reportedly more than 60,000 total e-mails remaining on Secretary Clinton’s personal system in 2014. It is highly likely their search terms missed some work-related e-mails, and that we later found them, for example, in the mailboxes of other officials or in the slack space of a server. It is also likely that there are other work-related e-mails that they did not produce to State and that we did not find elsewhere, and that are now gone because they deleted all e-mails they did not return to State, and the lawyers cleaned their devices in such a way as to preclude complete forensic recovery.
Clearly there is no perjury or false statement involved here in any way, shape or form. This is a totally phony charge. Goodlatte/Chaffetz should not be able to make such false charges and get away with it.
(3) Does Comey’s Testimony Show Secretary Clinton Lied When Testifying She Had One Server?
It appears that as the Republicans shifted through Secretary Clinton’s testimony searching for something, anything, they might hang her with, not only did they put words in her testimony she had never delivered, as set forth above, but they imputed knowledge to her she did not have (and apparently they did not either). This let’s-charge-her-with-anything approach is very evident in suggesting she committed perjury, or gave a false statement, when testifying how many computer servers she had in her basement to handle her email. Remember she was not before Congress to testify about her email process, rather the focus on the hearings was her role as secretary of state during the terrorists attack on the American outpost in Benghazi. It was during that October 22, 2015 hearing that incidental questions were asked about her emails, and the matter of her email server arose. The Republicans submit she falsely “testified there was only one server (although they do not specify which words were false in the testimony they offer):”
JORDAN: * * * In March, you also said this: your server was physically located on your property, which is protected by the Secret Service. I’m having a hard time figuring this out, because this story’s been all over the place. But—there was one server on your property in New York, and a second server hosted by a Colorado company in—housed in New Jersey. Is that right? There were two servers?
CLINTON: There was a—there was a server…
JORDAN: Just one?
CLINTON: …that was already being used by my husband’s team. An existing system in our home that I used, and then later, again, my husband’s office decided that they wanted to change their arrangements, and that’s when they contracted with the company in Colorado.
JORDAN: And so there’s only one server? Is that what you’re telling me? And it’s the one server that the FBI has?
CLINTON: The FBI has the server that was used during the tenure of my State Department service.
First, it should be understood—for it is doubtful either the Republicans in Congress or Secretary Clinton truly do understand—what is a server? Here is a general definition of “a server” in Wikipedia:
In computing, a server is a computer program or a device that provides functionality for other programs or devices, called “clients”. This architecture is called the client–server model, and a single overall computation is distributed across multiple processes or devices. Servers can provide various functionalities, often called “services”, such as sharing data or resources among multiple clients, or performing computation for a client. A single server can serve multiple clients, and a single client can use multiple servers. A client process may run on the same device or may connect over a network to a server on a different device. Typical servers are database servers, file servers, mail servers, print servers, web servers, game servers, and application servers. Client–server systems are today most frequently implemented by (and often identified with) the request–response model: a client sends a request to the server, which performs some action and sends a response back to the client, typically with a result or acknowledgement. Designating a computer as “server-class hardware” implies that it is specialized for running servers on it. This often implies that it is more powerful and reliable than standard personal computers, but alternatively, large computing clusters may be composed of many relatively simple, replaceable server components. [Bold added.]
Physically, a server can be a single machine or multi-machines in a rack, and they come in all sizes and shapes. Congressman Jim Jordan, if he knew, was not clear what he was talking about when discussing the server used by Secretary Clinton and her husband. Nor was Secretary Clinton. She was never asked whether she was referring software or hardware when discussing her server? She does explain there was an “existing system” in their home, and her husband’s office changed arrangements and contacted “the company in Colorado.”
When she is asked if “there’s only one server? Is that what you’re telling me? And it’s the one server that the FBI has?” Secretary Clinton responded to the last part of the question: “The FBI has the server that was used during the tenure of my State Department service.” That is a factually true statement, which Director Comey confirmed. The effort to make this into an exchange regarding the number of servers she had in her basement is absurd, even more of a stretch than putting words in her mouth that were never part of her testimony.
The claim she lied when she was testifying that she only had one server is a total distortion of her testimony. In fact, notwithstanding the leading questions, she does not say there was only one server. It is doubtful she knew anything other than there was some sort of machine in her basement. While she was not being evasive, she never agrees when responding that there was only one server.
Again, the Goodlatte/Chaffetz letter relies on statements by Director Comey to create a conflict in her testimony that does not exist. Because the Goodlatte/Chaffetz letter is confused about what is a server, I have included Comey’s full statement on the matter rather than the slice selected for the letter. First relying on Comey’s July 5, 2016, statement:
I have so far used the singular term, “e-mail server,” in describing the referral that began our investigation. It turns out to have been more complicated than that. Secretary Clinton used several different servers and administrators of those servers during her four years at the State Department, and used numerous mobile devices to view and send e-mail on that personal domain. As new servers and equipment were employed, older servers were taken out of service, stored, and decommissioned in various ways. Piecing all of that back together—to gain as full an understanding as possible of the ways in which personal e-mail was used for government work—has been a painstaking undertaking, requiring thousands of hours of effort. For example, when one of Secretary Clinton’s original personal servers was decommissioned in 2013, the e-mail software was removed. Doing that didn’t remove the e-mail content, but it was like removing the frame from a huge finished jigsaw puzzle and dumping the pieces on the floor. The effect was that millions of e-mail fragments end up unsorted in the server’s unused—or “slack”—space. We searched through all of it to see what was there, and what parts of the puzzle could be put back together.
Comey’s July 7, 2016, testimony actually corroborates Secretary Clinton’s testimony on the matter of servers:
CHAFFETZ: Thank you, director. I’m going to recognize myself here. Physically where were Hillary Clinton’s servers?
COMEY: The operational server was in the basement of her home in New York. The reason I’m answering it that way, is that sometimes after they were decommissioned they were moved to other facilitates—storage facilities, but the live device was always in the basement.
No one asked Director Comey what he was talking about when he said during his public statement, relied on by the Goodlatte/Chaffetz letter to put the lie to Mrs. Clinton, whether he was talking about components of the server, or replacement of the server, which appears to have always been in the basement of Secretary Clinton’s home. Again, this charge is an effort to invent a basis for perjury or false statement that does not exist.
(4) Does Comey’s Testimony Show Secretary Clinton Lied When Testifying She Provided All Her Work-Related Emails?
The sloppiness with which the Goodlatte/Chaffetz letter was assembled is revealed in this black-letter charge: “(4) Contrary to her sworn testimony, Secretary Clinton did not provide all of her work-related email to the Department of Justice.” Well, Secretary Clinton had no obligation to provide her emails to the Justice Department. She was Secretary of State, not Attorney General. In the body of the letter they correct this error to make it the State Department but claiming the following statement in her October 22, 2015, testimony was false if not perjury, which again is baseless: “I provided the department, which has been providing you, with all of my work-related e-mails, all that I had.”
Republicans contend this comment is in purported conflict with the FBI’s findings, as explained by Director Comey. Rather than quote the snippet in the letter, here is the full statement that the director made on July 5, 2016:
The FBI also discovered several thousand work-related e-mails that were not in the group of 30,000 that were returned by Secretary Clinton to State in 2014. We found those additional e-mails in a variety of ways. Some had been deleted over the years and we found traces of them on devices that supported or were connected to the private e-mail domain. Others we found by reviewing the archived government e-mail accounts of people who had been government employees at the same time as Secretary Clinton, including high-ranking officials at other agencies, people with whom a Secretary of State might naturally correspond. This helped us recover work-related e-mails that were not among the 30,000 produced to State. Still others we recovered from the laborious review of the millions of e-mail fragments dumped into the slack space of the server decommissioned in 2013.
* * * I should add here that we found no evidence that any of the additional work-related e-mails were intentionally deleted in an effort to conceal them. Our assessment is that, like many e-mail users, Secretary Clinton periodically deleted e-mails or e-mails were purged from the system when devices were changed. Because she was not using a government account—or even a commercial account like Gmail—there was no archiving at all of her e-mails, so it is not surprising that we discovered e-mails that were not on Secretary Clinton’s system in 2014, when she produced the 30,000 e-mails to the State Department. It could also be that some of the additional work-related e-mails we recovered were among those deleted as “personal” by Secretary Clinton’s lawyers when they reviewed and sorted her e-mails for production in 2014.
This full statement by the director made clear that it was not possible Mrs. Clinton or her attorneys knew there were more work-related emails, rather she turned over everything her attorneys had recovered. For Mrs. Clinton’s testimony to be false she would have to have known what apparently took FBI computer experts a year to discover. While her attorneys undoubtedly had sophisticated IT support, they were not forensic computer experts, nor could they reach out to other officials with whom Secretary Clinton explained she communicated, knowing her emails would also be preserved in their “.gov” accounts.
The Goodlatte/Chaffetz letter adds that when Director Comey testified on July 7, 2016, “he confirmed that Secretary Clinton did not turn over all work-related emails to the FBI.” But nowhere in his statement or testimony does Comey provide such information. This is a remarkable distortion, like the header. Mrs. Clinton had no obligation to turn over all her work-related emails to the FBI, or the Justice Department. Rather she voluntarily cooperated with the FBI’s investigation, and gave them everything she had. Director Comey makes clear that Mrs. Clinton’s attorneys were handling all this for her, and the FBI found no misconduct on their part or her part in turning over what, in fact, they found on her computer server—as corroborated by the following:
JORDAN: Did Secretary Clinton know her legal team deleted those e-mails that they kept from us?
COMEY: I don’t believe so.
JORDAN: Did Secretary Clinton approve those e-mails being deleted?
COMEY: I don’t think there was any specific instruction or conversation between the Secretary and her lawyers about that.
JORDAN: Did you ask that question?
JORDAN: Did Secretary Clinton know that her lawyers cleaned devices in such a way to preclude forensic recovery?
COMEY: I don’t believe she did.
JORDAN: Did you ask that question?
* * *
Bottom line: The charges that Secretary Clinton lied to Congress are baseless. While there may be a few technical errors in her testimony, and there may be information that was discovered by the FBI after she testified, there is absolutely no evidence at all that she willfully and knowingly provided false information to Congress.
Ironically, there are more false statements in the letter from chairmen Goodlatte and Chaffetz to the Department of Justice, which are clearly intentional, than the hours upon hours of testimony given by Secretary Clinton. If these men were ordinary citizens, they could be arrested for making false statements to law enforcement. They lied and played it for a one-day headline, and in doing so performed at the level of banana-republic legislators, if not lower. Sadly their actions are consistent with the thinking of the new Republican Party leader, Donald Trump, who would be proud of their effort to “Lock her up, Lock her up.”
Note: I received some additional testimony from a reader that further exonerates Secretary Clinton:
CARTWRIGHT: According to the manual, if you’re going to classify something, there has to be a header on the document? Right?
CARTWRIGHT: Was there a header on the three documents that we’ve discussed today that had the little c in the text someplace?
COMEY: No. There were three e-mails, the c was in the body, in the text, but there was no header on the email or in the text.
CARTWRIGHT: So if Secretary Clinton really were an expert about what’s classified and what’s not classified and we’re following the manual, the absence of a header would tell her immediately that those three documents were not classified. Am I correct in that?
COMEY: That would be a reasonable inference.