At Tuesday's House judiciary hearing with DOJ inspector general Michael Horowitz, Rep. Trey Gowdy focused his questioning on the FBI interview of Hillary Clinton, questioning the decision not to prosecute her based on intent with classified materials when the FBI interview didn't question her on that point.
"You and I agree that actually talking to the witness, the suspect, the target might be, absent of contemporaneous recordings, some of the better evidence on knowledge and intent," Gowdy said. "How in the hell was Jim Comey able to draft an exoneration press release, six weeks before that interview took place?"
"When you make up your mind that you're not going to charge someone, and you make up your mind that you need to not go in not loaded for bear ... and there's not a single damn question on intent, it is really hard for those of us who used to do this for a living to not conclude they've made up their mind on intent before they even bothered to talk to the single best repository of intent evidence, which would be her," Gowdy said.
REP. TREY GOWDY: Inspector General Horowitz, I want to go back to a couple minutes on the issue of intent. I mean am I correct, is that your understanding from what Jim Comey said that the missing element was -- was some element of intent that he was reading into the statue?
MICHAEL HOROWITZ, DOJ INSPECTOR GENERAL: That's what he said. I think what the prosecutors were looking at was knowledge and--
GOWDY: Knowledge that the wrongfulness of her conduct or knowledge that -- that her arrangement with herself may have allowed classified information to traverse her server?
HOROWITZ: Knowledge that classified information actually did transit through her server.
GOWDY: All right.
HOROWITZ: Because of the absents of markings.
GOWDY: Well, the questions I have for you are equally applicable, whether the missing intent is knowledge or intent. Can you think of a better way to determine was an actor knew than to ask the actor what he or she knew? Am -- am I missing some better repository of evidence than to actually interview the target or the suspect yourself?
HOROWITZ: I would say there could be instances where there would be better evidence like contemporizing recordings as opposed to the interview where the person might not be candid but ...
GOWDY: I'm not aware -- I'm not aware of those in this case. But perhaps you know something I do not?
HOROWITZ: No I'm not. But I'm just saying you asked hypothetically is there a better way to get evidence of someone's state of mind ...
GOWDY: Given the evidentiary restrictions in this case, can you think of better way to -- to resolve that issue of knowledge than to actually interview the target herself?
HOROWITZ: No, I think you would want to interview the target herself.
GOWDY: All right. And what would you ask the target? You -- you were a highly decorated federal prosecutor from one of the most prestigious districts in the country, what would you ask the defendant if you were trying to determine whether or not that person, that suspect had knowledge.
HOROWITZ: Well you'd certainly want to start at the beginning, which is why did the server come to be set up? What was the rationale behind it? What did you understand it would be used for? Questions like that because so much of it would be focused on what the intent rationale thinking was behind creating the -- your own separate server or domain name from the outset.
GOWDY: You have multiple explanations have been given in the past on that very issue. Would you ask the suspect or the target to reconcile those different explanations?
HOROWITZ: Presumably, you would ask the subject during the interview, in any area where there might be differing reports of testimony or recollections.
GOWDY: If there had been false exculpatory statements made in connection with fact pattern, will you ask the target or the suspect to explain those false exculpatory statements?
HOROWITZ: I think if you were interviewing any witness you would want to ask them about information that was out there that would suggest there was a false exculpatory.
GOWDY: When I use the phrase consciousness of wrong doing, what does that mean to you?
HOROWITZ: That means you have an awareness, perhaps unstated, that the conduct that you've engaged in is wrongful in some way.
GOWDY: What about concealment?
HOROWITZ: Well that can mean, I guess, different things depending upon the nature of the concealment. It can be active. It can be passive at some level. But it's keeping something from somebody else and we have a concern here about concealment on what happened in connection with July 5.
GOWDY: How about the destruction of evidence?
HOROWITZ: Again, that can be personal or it can be knowing that someone else is going to do it, but it is, obviously, destroying evidence or information that's -- has (inaudible) value.
GOWDY: I guess what I'm, kind of, struggling with a little bit -- I was asked over the weekend whether or not I think she should've been charged. I can't answer that question because I don't think she was interviewed properly. And it's very difficult to go back and conduct a proper interview after one has already been botched.
Did you see all of the questions that you and I just went over in the 302? Were all of those asked of her during that July interview?
HOROWITZ: I think one of the concerns that's been raised is that a 302, only being a summary of what was said, that there isn't a transcript or other more definitive report on, precisely, all of the questions and answers. So, we have a summary and that's what we're working off of, that. It's an extensive summary, but it's still not a transcript.
GOWDY: Well, given the fact that you and I agree that actually talking to the witness, the suspect, the target might be, absent of contemporaneous recordings, some of the better evidence on knowledge and intent. How in the hell was Jim Comey able to draft an exoneration press release, six weeks before that interview took place?
HOROWITZ: I -- you know, I think it -- it's clear from looking at what we uncovered that by that point in time, they had largely concluded what they had concluded. And as you--
GOWDY: But my question is, if what you're missing was knowledge and, or intent and the single best repository for that evidence is the person you've yet to talk to, how in the hell can you make that conclusion?
HOROWITZ: I think -- I'll give you what the answer was that we got back which was, of course we kept open the possibility that we would find some evidence that would change that -- that view. That was the explanation we were given.
GOWDY: If that were true, did you find drafts of inculpatory press releases?
HOROWITZ: No, we did not.
GOWDY: You found no memos or drafts where he had decided to charge her?
HOROWITZ: That's correct. We were told, by the way, by the prosecutors, as you see here, that they did not draft anything until after the interview, precisely because they wanted to wait before making a final judgment for the interview.
GOWDY: Isn't that we normally do? Wait until the last interview is.
GOWDY: This is my last question I'll have for you. Back when you did trial work, do you remember the judge ever admonishing the jury that you are not to make up your mind until the last witness has testified and the last piece of evidence has been introduced? Do you remember you remember a jury ever being told that by a judge?
HOROWITZ: Not only do I remember that as a prosecutor, but I actually served on a jury last year. So, I remember that from the judge's instruction.
GOWDY: It's kind of one of the basic precepts of our justice system is that you wait until it's over before you draw a conclusion and I am just dumbfounded that Director Comey would draft a press release and cite the missing element, when the single best repository of potential evidence on that element had yet to be talked to. I just -- I find that stunning, but I'm also just stunningly out of time.