The House Intelligence Committee heard Comey’s testimony in regard to allegations made by President Donald Trump that President Obama wiretapped him and the extent of Russian influence in the 2016 presidential election.
A transcript of the exchange follows.
Rep. Gowdy: Thank you, Mr. Chairman. Director Comey, you and I were discussing the felonious dissemination of classified material during the last round. Is there an exception in the law for current or former U.S. officials who request anonymity?
Director Comey: To release classified information?
Gowdy: Yes, sir.
Gowdy: Is there an exception in the law for reporters who want to break a story?
Comey: Well, that’s a harder question, as to whether a reporter incurs criminal liability by publishing classified information, and one probably beyond my ken. I’m not as good a lawyer as Mr. Schiff said I used to be.
Gowdy: Well, I don’t know about that, but the statute does use the word publish, doesn’t it?
Comey: It does, but that’s a question I know the Department of Justice has struggled with through administration after administration.
Gowdy: I know the department struggled with it, the fourth circuit struggled with it, lots of people struggled with it, but you’re not aware of an exception in the current dissemination of classified information statute that carves out an exception for reporters?
Comey: No, I’m not aware of anything carved out in the statute. I don’t think a reporter’s been prosecuted, certainly in my lifetime, no.
Gowdy: Well, there have been a lot of statutes at bar in this investigation for which no one’s ever been prosecuted or convicted, and that does not keep people from discussing those statutes, namely, the Logan Act. In theory, how would reporters know a U.S. citizen made a telephone call to an agent of a foreign power?
Comey: How would they know legally?
Comey: If it was declassified and then discussed in a judicial proceeding or a congressional hearing, something like that.
Gowdy: And assume none of those facts are at play, how would they know?
Comey: Someone told them who shouldn’t have told them.
Gowdy: How would a reporter know about the existence of intercepted phone calls?
Comey: Same thing. In a legitimate way, through an appropriate proceeding where there’s been declassification, and any other way in an illegitimate way.
Gowdy: How would reporters know if a transcript existed of an intercepted communication?
Comey: Same answer. The only legitimate way would be through a proceeding, appropriate proceeding. The illegitimate way would be somebody told them who shouldn’t have told them.
Gowdy: What does the term mask mean in the concept of FISA and other surveillance programs?
Comey: As Director Rogers explained, it’s our practice, approved by the FISA court, of removing the names of U.S. persons to protect their privacy and their identity, unless it hits certain exceptions. So, masking means, as Mike Rogers said, I’ll often see an intelligence report from NSA that will say, U.S. person number one, U.S. person number two, U.S. person number three and there’s no further identification on the document.
Gowdy: Admiral Rogers said that there are 20 people within the NSA that are part of the unmasking process. How many people within the FBI are part of the unmasking process?
Comey: I don’t know for sure as I sit here. Surely more, given the nature of the FBI’s work. We come into contact with U.S. persons a whole lot more than the NSA does because we may be conducting — we only conduct our operations in the United States to collect electronic surveillance, to conduct electronic surveillance — so I can find out the exact number. I don’t know it as I sit here.
Gowdy: Well, I think, Director Comey, given the fact that you and I agree this is critical, vital, indispensable — a similar program is coming up for reauthorization this fall with a pretty strong headwind right now — it would be nice to know the universe of people who have the power to unmask a U.S. citizen’s name, because that might provide something of a roadmap to investigate who might have actually disseminated a masked U.S. citizen’s name.
Comey: Sure. The number is relevant. What I hope the U.S., the American people will realize is the number’s important, but the culture behind it is, in fact, more important, the training, the rigor, the discipline. We are obsessive about FISA in the FBI for reasons I hope make sense to this committee, but we are — everything that’s FISA has to be labeled in such a way to warn people, this is FISA, we treat this in a special way. So, we can get you the number, but I want to assure you, the culture of the FBI and the NSA around how we treat U.S. person information is obsessive, and I mean that in a good way.
Gowdy: Director Comey, I am not arguing with you, and I do agree the culture is important, but if there are 100 people who have the ability to unmask and the knowledge of a previously masked name, then that’s 100 different potential sources of investigation. And the smaller the number is, the easier your investigation is. So, the number is relevant. I concede the culture is relevant. NSA, FBI, what other U.S. government agencies have the authority to unmask a U.S. citizen’s name?
Comey: I think all agencies that collect information pursuant to FISA have what are called standard minimization procedures, which are approved by the FISA court that govern how they will treat U.S. person information. So, I know the NSA does, I know the CIA does, obviously the FBI does. I don’t know for sure beyond that.
Gowdy: How about the department of — how about main justice?
Comey: Main justice I think does have standard minimization procedures.
Gowdy: All right, so that’s four. The NSA, FBI, CIA, main justice. Does the White House have the authority to unmask a U.S. citizen’s name?
Comey: I think other elements of the government that are consumers of our products can ask the collectors to unmask. The unmasking resides with those who collected the information. And so, if Mike Rogers’ folks collected something and they sent it to me in a report and it says, “U.S. person number one,” and it’s important for the FBI to know who that is, our request will go back to them. The White House can make similar requests of the FBI or of NSA, but they can’t on their — they don’t on their own collect, so they can’t on their own unmask. [To person offscreen] I got that about right?
Unknown person offscreen: Yeah, that’s correct.
Gowdy: So I guess what I’m getting at, Director Comey, is you say it’s vital, you say it’s critical, you say it’s indispensable. We both know it’s a threat to the reauthorization of 702 later on this fall, and oh, by the way, it’s also a felony punishable by up to 10 years. So, how would you begin your investigation, assuming for the sake of argument that a U.S. citizen’s name appeared in the Washington Post and The New York Times unlawfully? Where would you begin that investigation?
Comey: Well, I’m not going to talk about any particular investigation —
Gowdy: That’s why I said in theory.
Comey: You would start figuring out, so who are the suspects? Who touched the information that you’ve concluded ended up unlawfully in the newspaper, and start with that universe, and then use investigative tools and techniques to see if you can eliminate people or include people as more serious suspects.
Gowdy: Do you know whether Director Clapper knew the name of the U. S. citizen that appeared in “The New York Times” and “Washington Post”?
Comey: I can’t say in this forum, because again, I don’t want to confirm that there was classified information in the newspaper.
Gowdy: Would he have access to an unmasked name?
Comey: In some circumstances, sure. He was the Director of National Intelligence, but I’m not talking about the particular.
Gowdy: Would Director Brennan have access to an unmasked U. S. citizen’s name?
Comey: In some circumstances, yes.
Gowdy: Would National Security Advisor Susan Rice have access to an unmasked U. S. citizen’s name?
Comey: I think any, yes, in general, and any other national security advisor would, I think, as a matter of their ordinary course of their business.
Gowdy: Would former White House Adviser Ben Rhodes have access to an unmasked U. S. citizen’s name?
Comey: I don’t know the answer to that.
Gowdy: Would former Attorney General Loretta Lynch have access to an unmasked U. S. citizen’s name?
Comey: In general, yes, as would any attorney general.
Gowdy: So, that would also include acting A.G. Sally Yates?
Comey: Same answer.
Gowdy: Did you brief President Obama on — I’ll just ask you — did you brief President Obama on any calls involving Michael Flynn?
Comey: I’m not going to get into either that particular case, that matter, or any conversations I had with the president, so I can’t answer that.
Gowdy: Director Comey, there’s been some speculation this morning on motive. I’m not all that interested in motive. First of all, it’s really hard to prove. Secondarily, you never have to prove it. But I get that people want to know. I get the jury always wants to know why. I think you and I can agree there are a couple of reasons that you would not have to unlawfully, feloniously disseminate classified material. It certainly wasn’t done to help an ongoing criminal investigation, because you already had the information, didn’t you?
Comey: Again, I can’t answer in the context of this particular matter.
Gowdy: How about in theory? Is there something a reporter would have access to that the head of the FBI would not?
Comey: It’s hard for me to answer. I would hope not when it relates to —
Gowdy: I would hope not, too, since it’s part of our surveillance programs. I would hope that you had access to everything as the head of the world’s premier law enforcement agency. I would hope that you had it all. So, if you had it all, the motive couldn’t have been to help you, because you already had it. And Admiral Rogers, the motive couldn’t have been to help you, because you already had it. So, in the universe of possible motives for the felonious dissemination of classified material, we could rule out wanting to help the intelligence communities and the law enforcement communities. Those are two motives that are gone now. That leaves some more nefarious motives. Is the investigation into the leak of classified information — has it begun yet?
Comey: I can’t say because I don’t want to confirm that that was classified information.
Gowdy: Well, I don’t want to quarrel with you, Director Comey, and I do understand that you cannot ordinarily confirm or deny the existence of an investigation, but you did it this morning citing DOJ policy, given the gravity of the fact pattern. Would you not agree that surveillance programs that are critical, indispensable, vital to our national security, some of which are up for reauthorization this fall, that save American lives and prevent terrorist attacks also rises to the level of important?
Gowdy: I think those programs are vital, and leaks of information collected pursuant to court order under those programs are terrible. And as I said in my opening statement, should be taken very, very seriously. What I don’t ever want to do is compound what bad people have done and confirm something that’s in the newspaper, because sometimes the newspaper gets it right. There’s a whole lot of wrong information about, allegedly, about classified activities that’s in the newspaper. We don’t call them and correct them, either. That’s another big challenge, but we just don’t go anywhere near it because we don’t want to help and compound the offense that was committed.
Gowdy: I understand that, Director Comey, and I’m trying really hard not to get you to discuss the facts at bar, but some of the words that appeared in this public reporting include the word transcript, which has a very unique use in the matters that you and I are discussing this morning. That is a very unique use of that word. Wiretap has a very specific meaning. The name of a U. S. citizen that was supposed to statutorily be protected is no longer protected. So, some of this reporting — let’s assume 90 percent of it is inaccurate. That other 10 percent is still really, really important. And to the extent that you can rely on the dates in either the Washington Post or The New York Times, we are talking about February of this year is when the reporting first took place. So, we are, we’re a month and a half or two months into something that you and I agree is incredibly important and also happens to be a felony. So, I’m just simply asking you to assure the American people. You’ve already assured them you take it really seriously. Can you assure them that it is going to be investigated?
Comey: I can’t, but I hope people watching know how seriously we take leaks of classified information, but I don’t want to confirm it by saying we’re investigating it, and I’m sorry I have to draw that line. I just think that’s the right way to be.
Gowdy: Well, I’m not going to argue with you, Director Comey, but it is — you know, we’re going to discuss a lot of important things today, whether Russia attempted to influence our democratic process is incredibly important. Whether they sought to influence it is a separate analysis, incredibly important. The motive behind that interference and influence, incredibly important. Our U.S. response, incredibly important. Some of that may rise to the level of a crime. Some of it does not rise to the level of a crime. One thing you and I agree on is the felonious dissemination of classified material most definitely is a crime. So, I would ask you, and I understand some of the procedures that you are up against — I would humbly ask you to seek authority from whomever you need to seek authority from. Because I’m going to finish the same way I started. This is an agreement between the American people and its government. We are going to — we, the American people, give certain powers to government to keep us safe, and when those powers are misused and the motive is not criminal investigations or national security, then I’ll bet you my fellow citizens are rethinking their side of the equation. Because that U. S. citizen could be them next time. It could be you. It could be me. It could be anyone until we start seriously investigating and prosecuting what Congress thought was serious enough to attach a 10-year felony to. With that, I would yield back, Mr. Chairman.
Comey: Can I just add a response to what you said? I agree with you, Mr. Gowdy. Two things folks at home should know. First, an unauthorized disclosure of FISA is an extraordinarily unusual event, so be assured were going to take it very seriously, because our trust — the American people and the federal judges that oversee our work is vital. And second, that this conversation has nothing to do with 702. Folks often mix them together. 702 is about targeting non-U.S. persons overseas. Pursuant to the FISA statute, the FBI can apply to collect electronic surveillance in the United States, but it’s a different thing from 702. The conversation you and I are just having is about this, which is vital and important, but I just didn’t want to leave folks confused.
Gowdy: Director Comey, you are 100 percent correct, and I am 100 percent correct in saying that that is a distinction that doesn’t make a difference to most of the people watching television. You are exactly correct. What we are reauthorizing this fall has nothing to do with what we are discussing, other than it is another government program where the people consent to allow government to pursue certain things with the explicit promise it will be protected. So, you’re right, they’re different. But in the eyes of people watching, it is the U. S. government officials leaking the name of a U. S. citizen, and if it can happen here, it may happen there. Trust me, you and I both want to see it reauthorized. It is in jeopardy if we don’t get this resolved.
The source of this transcript is closed captioning.
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