Legal Beagles Analyze FBI Director’s Handling of Investigation
Jul 7, 2016
RUSH: Comey testified before a House committee this afternoon looking into his decision to not recommend prosecution of Hillary Clinton. He admitted today that many of her statements about sending emails, some of which were made under oath, were not true. We are continuing to roll tape and we will assemble this stuff as we can, but this latest report is from Fox News.
“Comey has admitted that many of her statements about sending emails, some made under oath, were not true, raising the question of whether in doing so she would have committed a felony.” That would be the old process crime that they got poor old Scooter Libby on, a process crime like they got Martha Stewart on.
I want to go back to Trey Gowdy. We have one more sound bite from Trey Gowdy. Again, when he was questioning Comey, he wasn’t really questioning him. He was laying out the case for intent that Comey said he didn’t find. He was laying out for the audience — that would be you and me — that there clearly was intent, despite the fact that the FBI director said, “Couldn’t find enough intent here to recommend prosecution.” Here’s one more Trey Gowdy bite on all of this.
GOWDY: 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 email account. So you have a rogue email system set up before she took the oath of office, thousands of what we now know to be classified emails, some of which were classified at the time. One of her more frequent email comrades was, in fact, hacked, and you don’t know whether or not she was. And this scheme took place over a 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. You and I both know intent is really difficult to prove.
RUSH: Well, you know, intent, you legal beagles are gonna have to correct me on this if I’m wrong, but there’s another factor with intent that is left up to a jury to decide. You know, in many cases intent isn’t a dominant factor in the decision to charge or not. But in Comey’s world he’s making it out that it is, it’s the big deal, that there wasn’t any intent, couldn’t prove it, and therefore nowhere to go here. And major arguments are now ensuing in the legal circles over this.
My buddy Andy McCarthy has already posted a piece at National Review Online in which he thinks that it has resulted here that Comey’s reasoning has been disputed successfully and refuted, that the jig’s up on this. It’s not gonna change anything, but the legal circle of people debating this and analyzing it, what Robert Bork called the intellectual feast, is ongoing, and there are a lot of people tearing this apart right now. And that’s what Trey Gowdy is trying to do here in his way, and his way is communicating with the American people, who will see this.
And, believe me, a lot of the American people are gonna see this. They may not see their cable TV, but they’re gonna see it streamed, they’re gonna see excerpts of it put together, video streamed on various social media sites. And I think Gowdy has been powerful today in laying out how there was clearly intent. And this latest example is just as good as the first two that we had.
She affirmatively rejected efforts to give her a state.gov account. That would have meant that it was accountable and subject to Freedom of Information Act requests. She kept these private emails for almost two years and only turned them over to Congress because we found out she had a private email account. She didn’t even divulge that, but it was discovered. Having a private email account to conduct official business, to Trey Gowdy, signals intent.
So you have, he says here, a rogue email system set up before she took the oath of office, thousands of what we now know to be classified emails, some of which were classified at the time. One of her more frequent email comrades was in fact hacked and you, Mr. Comey, don’t know whether or not she was. And this scheme, Hillary’s private email server, took place over a long period of time, resulted in the destruction of public records.
That’s, again, a reference to the 30,000 emails she threw away. Of the 60,000 on her server, she threw 30,000 away, telling Congress and telling the State Department, “That’s private. It had nothing to do with anything. I’ll save you the trouble of reading ’em. I’m tossing ’em.” That is destruction of public records. That is intent to hide. And Gowdy says to Comey, “And yet you say there’s insufficient evidence of intent. You say she was extremely careless, but not intentionally so.”
I’m sorry. Common sense rears its head here. It’s impossible to say she didn’t have intent. That’s the stretch, to me. It’s a stretch to say she didn’t intend to hide anything. To me the tougher thing to prove would be that she didn’t intend to keep all this hidden from public view. It seems like that would be the easiest case to make, but Comey didn’t want to make it, he didn’t want to go there for whatever reason, and he didn’t.
Jim Jordan, who is from Indiana and on the committee as well, and he had a great day. He said that former secretary of state Clinton had misled Congress under oath when testifying to the House Select Committee on Benghazi in October of 2015. He was speaking to Washington Watch with Tony Perkins on a radio show. And specifically, Clinton told the Benghazi committee she had “turned over all my work-related emails from her private email server to the government, that there was nothing marked classified on my emails, and that her attorneys went through every single email.” And, according to James Comey, all of those statements are false.
So that’s the meaning of the Fox News story, that, according to Comey, he admits that many of her statements about sending emails made under oath were not true, raising the question of doing so she committed a felony and lying to Congress. Which is a big deal. It is. In terms of the law, it’s a big deal to mislead or lie to Congress. And keep something in mind here. We wouldn’t even know about Hillary’s secret home server if requests for her emails hadn’t been — today, to this moment, we wouldn’t know about it.
So this is why people want to know what she said in her interview, her three and a half hour interview on Saturday. What did Hillary tell the FBI under oath? And how did the FBI and the professional prosecutors analyze her three and a half hour testimony so quickly and decide that she had not lied to them?
And there’s another point that was made earlier by somebody who lists all the things that will signify this thing not going away. A long list of items, about eight or 10. A political science professor at the University of Chicago. And he said, “Keep a sharp eye down the road for any leaks from potentially disgruntled FBI agents who worked on the case.” And when I saw that, I said it’s a bit of, you know, they’re pretty loyal, they run a tight ship. I guess it’s possible.
I thought back to Joe diGenova three, four months ago now, who was on I think Fox News and told everybody that the FBI’s got the goods and he had inside sources, they’ve got her. It is so bad, he said, that if they don’t indict her, there are going to be FBI agents who resign in protest. And diGenova, the husband of Victoria Toensing, is a former Justice Department official, knows people at the FBI. And he clearly said numerous times, they’ve got so much evidence, she’s gonna be indicted. I know you remember this.
And then he said again, if she’s not, there’s gonna be so many people fed up with all the work they did and all the evidence they gathered that there’s gonna be resignations, I think is what he said. We’ll see. So the University of Chicago on poli-sci prof says, keep a sharp eye. See if there are any leaks from disgruntled FBI agents down the road who disagree with what has been presented here as the official story.
And then this point needs to be brought home again. Hillary is not doing a victory lap. That’s a big deal in the sense that she knows it isn’t over. You know, running around beating her chest going nah-nah-nah-nah-nah-nah, “Beat you again, beat you again. They found nothing. They looked at me for months and months and years and years.” She can’t do that. If she runs around doing that, she just inspires and motivates people even more to come up with stuff. She’s not commenting on it.
And Clinton did. Bill Clinton, every time he escaped the surly bonds of one of these investigations, he went out there and rubbed everybody’s nose in it. But Hillary hasn’t done that, nor has Obama.
RUSH: We’ll go to Tulsa. This is Charles. Great to have you, sir. I appreciate your patience. Hello.
CALLER: Oh, hello, Rush. All right. So, I think everybody needs to look at it like this. Let’s say Comey, he knows the DOJ isn’t gonna go after Hillary, regardless what he says. So he lays out what he has, says he doesn’t recommend charges, knowing that she’s gonna follow what he says. So then Trump gets in office, and his DOJ is able to go after Hillary. ‘Cause, I mean, the case isn’t closed, right?
RUSH: The case is closed.
CALLER: Well, I mean I thought… Okay, so I thought that, you know, they can’t take her up on charges. They can’t take her to court for this?
RUSH: No. The attorney general has said (paraphrased), “That’s it. It’s over. I’m officially announcing we will not be prosecuting Hillary Clinton. We never were gonna prosecute her. I’m sorry if you’re disappointed. Screw you! But we’re not going to prosecute Hillary Clinton.” So it’s done. It’s over with. The only way it can happen… Now, if the Republicans win the White House and the next attorney general wants to indict her, he can try.
CALLER: Well, yeah. And that’s what I’m saying. So he lays out everything that he has, knowing that she’s not going to go after Hillary. He lays all this out, and I guess kind of saves face but looks bad at the same time. You know, that’s what I was looking at.
RUSH: Okay. So you are of the school that Comey is a brilliant Machiavellian, and he knows that this current crop isn’t gonna do anything with whatever he’s got. So he lays out damning evidence for somebody that might want to someday go after her, and then goes out and he’ll defend his decision today, but he’s made it crystal clear that she’s gettable. That’s your theory.
RUSH: Now, look, folks, you and I are not the only group of people here who think that something out of the ordinary has happened here. There are some people on the left, including the esteemed Professor Dershowitz at Harvard. And I like Professor Dershowitz. I met Professor Dershowitz early on when I had arrived in New York. It was a Sunday night, and I was already in doing show prep for my show on Monday. And he was arriving to appear on some Sunday night show, and he walked in. He had his trench coat on and his briefcase, and he walked by.
He already knew who I was, and he was eyeing me suspiciously as he walked by. He stopped and turned around and looked at me and said, “Yeah, I know who you are. I know who you are. I don’t agree with much. Yeah, you’re okay, but I know who you are.” And he kept walking back to wherever he was going to appear on whatever show. You know, he’s been portrayed in movies — a couple, three movies — and so forth. Anyway, Professor Dershowitz. You know, you and I think that Comey goes out and makes his case then doesn’t recommend that Hillary be charged, and we go, “What? After that?”
Dershowitz thinks that Comey behaved in an unethical way like he has rarely seen. He said (paraphrased), “You don’t have people go out… If you’re not gonna charge, you leave it alone. But he went out there and he basically listed every crime he thinks that she committed and then said, ‘Nothing to see here.’ That’s as unethical as anything I’ve ever seen.” Dershowitz said, “There’s no way. That doesn’t happen. You just don’t do that.” I’m trying to think. There’s another incident, something like this happened — and it was in the political world — where somebody went out…
It might have been an attorney general or deputy went out and listed (chuckles) all the things that somebody did, and said, “We’re not charging.” Everybody blew up. So Professor Dershowitz has a point here. But I’ll tell you, that cuts both ways. You realize, we don’t ever see this. Comey addressed this, by the way. He said (paraphrased), “These are normally things that happen without public scrutiny. You know, we amass and collect our evidence, we present our recommendation to the Department of Justice, and then they decide what to do with it. And if there are charges, then you know. If there are no charges, nobody ever knows whatever went on.”
But in this case, Comey went out and spelled it out. He said because there’s such public interest, and there’s been so much anticipation, and there’d been so much speculation that he wanted to go out, put it all on the line, and then explain how he arrived at the conclusions that he was making after amassing all this, quote/unquote, “evidence and fact.” And that is what Dershowitz says is unethical. “You just don’t go… If you’re not gonna pursue somebody, if you’re not gonna charge them, if you’re not gonna recommend they be charged, you don’t go out there and air their dirty laundry like that. You just don’t do it.”
That would tend to argue in favor of those of you who believe that Comey is acting in a very brilliant, Machiavellian way here; that he himself knew that Loretta Lynch would never indict Hillary no matter what evidence he had. So go ahead and present it and then give himself an out in the process by knowing she’s not gonna charge. So he’ll jump the gun on that and say, “No reasonable prosecutor would charge,” thereby guaranteeing she can’t. Because if he goes out and says, “No reasonable prosecutor would ever charge this,” what does she then do? (chuckles)
Go out and indict her and make herself look unreasonable? It wasn’t gonna happen anyway. But, whatever the motivation, whatever the strategy — whether Comey is Machiavellian or not — it is out there, what she did. The only thing missing is, “She didn’t mean to do it.” But what she did is out there, and that means it’s now in the political realm and is subject to relevance in the campaign. And that’s why Professor Dershowitz… He’s not the only one. There are couple others, too, who joined him in this.
They are upset about this, because it is an indictment of sorts in the political world, depending on what Hillary’s political opponents want to do with it. And if the early indications are worth anything, they’re gonna do quite a bit. Already we’ve had four juxtaposition videos, like our Torricelli sound bite where he proclaims his innocence left and right and then the lawyer detailing the crimes (chuckles) contradicts everything he says. There’s four of those out there — well, three, and we put one together — juxtaposing Comey with Hillary. We had that yesterday.