Joe digenova, who is Bryan Pagliano. He was a former state department employee, former contractor, who was and former Clinton Campaign worker, who was hired by Hillary Clinton to install a private server to do all of her government and personal email correspondence at her home in chappaqua, new york. He was also employed by her as a computer adviser at the state department. He has been granted immunity, correct . The federal prosecutors at the department of justice have granted him immunity, according to published reports. And what is first of all, what is immunity and what does that mean . If it is statutory immunity, which is where you go before a judge and the prosecutors say, we want to be able to ask this question this person questions in front of the grand jury, if its statutory immunity, it means that anything he says in the grand jury or in the interviews with the fbi and the prosecutors can never be used against him. But more importantly, anything that he says can never be used to develop a lead against him. Which means that invariably, when youre granted immunity, you can never be prosecuted for the crimes for which you have been granted immunity. The fact that he and you talked about statutory immunity, is there another type of immunity . Theres letter immunity, where a prosecutor hands your attorney a letter that says, we wont prosecute for anything you tell us during an interview, but we can use it for leads in the investigation. Sometimes people will have their attorneys deal with the prosecutors because they want to get out of a case, and they want to talk, but they want some limitation on it. And what the lawyers go in and they make whats called a proffer. They tell the prosecutors ahead of time what the witness is going to say. And if the prosecutors like it, they hand them a letter of immunity, saying, whatever you tell us cant be used against you directly, but we can use it to develop leads. So, do we know for a fact that mr. Pagliano has been granted immunity . We do know for a fact he has been granted immunity, because his lawyers told the house commit he that he has been and they also told the pressure he has been granted immunity. What we dont know is what kind it is. In all likelihood, given his centrality to the entire story of the private server in new york for mrs. Clinton, its statutory immunity, which would mean theres a grand jury sitting which has at least issued subpoenas. Whats the significance of all of that . It means, notwithstanding what mrs. Clinton and her supporters have been saying, which is only a security review of her computer. It is not. It means we now know formally its a federal criminal investigation being conducted by the fbi with the assistance of lawyers from the Criminal Division and the National Security division of the department of justice. Does there have to be intent in a criminal case . In most criminal cases, intent is required. Sometimes its just the intent to do the act. Sometimes its the specific intent that you want to murder someone. In these cases there are two types of intent. In the criminal investigation of whether or not classified information has been compromised, theres something called gross negligence under the espionage statutes. If you mishandle classified information, dont store it properly, send it to people who arent entitled to have it, put it on a private server in a home, send it to somebody who doesnt have a security clearance, that is called gross negligence. That does not require any intent, other than the intent to do the act of actually compromising you dont have to have any evil intent or anything. In some of the espionage statutes, you have to knowingly what they say knowingly compromise information, knowing that youre doing something thats bad. So both of those are at play in the Hillary Clinton email server investigation. Do you think that there was criminal intent or gross negligence in this case . Heres how ive analyzed it. I asked myself at the beginning of this. What would i do if i were the u. S. Attorney investigating this case . Heres what you do. The first thing you do, you look at what general haidyden has called the original sin. What was the original sin . It was setting up a private server in a private residence in new york upon which all of the secretarys government business would be conducted. She would have no dot gov account, only the service of the private server in chappaqua. Why would someone do that . The only answer i get, to avoid disclosure, to evade. Because if its in a government server, there will be thousands of people that could know whats on the server. If its a private server and only you and a few people have access, thats the intent to evade and hide. For example, if its on a private server and the state department receives a subpoena from a federal court in a freedom of information act case, the state department searches, they say we have no records for mrs. Clinton. Because they dont. The records exist on mrs. Clintons private server. Thats exactly what has happened in these freedom of information cases, right down the street here at the federal courthouse. Judge Emmitt Sullivan has discovered, well, nobody told me there was no government account. Now that we know theres a private server, i want to take testimony from everybody involved in that process. Joe digenova is our guest. Hes been a u. S. Attorney for the District Of Columbia during the reagan administration. He prosecuted john hinckley. Hes been a staff director at the senate rules committee. Hes investigated governor spitzer up in new york. Hes named special council by the house of representatives to look into the teamsters in the 90s. Several different positions and he and his wife victoria tunsing have their own law firm focusing on criminal issues . Criminal, legislative, regulato regulato regulatory. One of my proudest accomplishments, worked with cspan, we helped launch cspan, which was one of my favorite moments. Too bad hes not around today. God bless him. Joe digenova is our guest and were talking about the Hillary Clinton email investigation. We want to get your points of view as well. Numbers on the screen. 2027488002 for independents. This is Hillary Clinton at a recent debate. It wasnt the best choice. I made a mistake. It was not prohibitive. It was not in any way disallowed. And as ive said and as now has come out, my predecessors did the same thing and many other people in the government. But heres the cut to the chase facts. Did i not send or receive any emails marked classified at the time. What youre talking about is retroactive classification. And the reason that happens is when somebody asks or when you are asked to make information public, i asked all my emails to be made public, then all the rest of the government gets to weigh in. And some other parts of the government were not exactly sure who has concluded that some of the emails should be now retroactively classified. They just said the same thing to former secretary colin powell. Well retro actively classify emails you sent personally. He was right when he said its an absurdity. I think what weve got here is a case of overclassification. Im not concerned about it. Im not worried about it. And no democrat or american should be either. [ applause ] the question was, who gave you permission was it president obama . There was no permission to be asked. It had been done by my predecessors. It was permitted. I didnt have to ask anyone. If you get indicted, will you drop out . Oh, for goodness sake, thats not going to happen. Im not even answering that question. Joe . The most interesting point on the entire comment, when mrs. Clinton refers to others having done it, like powell, Condoleezza Rice and madeleine albright, that is actually not true. While they may have from time to time, used their private email account to send an email to the state department, not one of those former secretaries of state had a private email server in the basement of their home from which they conducted all of their government business. That is what this case is about. This case is not about email. Its about the server. The server is the essence of the case, thats why Bryan Pagliano was so important, why the fbi has subpoenaed documents along with the federal grand jury from thirdparty servers, people who provide service for that computer. The issue is not the emails, but on a private thing. It clearly does relate to the use of lets say, when you have that private server in your home in chappaqua, and its off the grid. Its not government, its not encrypted, its not secure. You know that everything going through that, no matter what its classification is going to be theoretically compromisable, and when you and your staff use black berries that are not encrypted, or iphones or droids and you communicate through that computer, all of that information is compromisable. So the bottom line is, and by the way, classification, when the secretary, when she says she may be right. She may have never sent or received anything marked classified. However, thats not the standard under the statute. The espionage statutes and the gross negligence statutes say nothing about the labels on a piece of paper or email. What matters is the sub stance of the information in the communication. And its the duty of everyone who has signed a nondisclosure agreement when theyre given their top secret security clearns. They sign a piece of paper and say, i know its my duty to know whats classified whether its marked or not. The classification markings mean nothing when it comes to whether or not something is classified. If you were defending Hillary Clinton, or if you were hired to be on the other side of this issue, and youre not on either side no. What would you tell her . I would tell her, number one, dont be interviewed by the fbi. Because if you lie, youll be in the same boat which is general petraeus was, which will make them want to go after you more. When you lie to a federal investigator, that creates incentive for them to work harder. Especially when they know youre lying. Given what the fbi knows about this case, they know whos lying and whos not, this is an easy one for them. They have this case locked in. We know they believe they have a locked case. They believe that the issue of how many people within the clinton circle at the state department were involved is now a manageable number, and that there may be more people immunized who are not as high up the totem pole as the secretary, sheryl mills or huma abedin. The key may be Patrick Kennedy. If i were representing mrs. Clinton and i think this may be part of her defense, shell say the state department knew i had this set up all along. They didnt stop me or tell me not to do it. Nobody came and seized the computer. Theres no correspondence saying i shouldnt do this. Unfortunately, thats not a defense. Shes one of ten people in the United States government who has Statutory Authority to classify information. Theres only ten people who can do it. She has the power to assist in the declassification of that. So her duties in terms of knowing things about classified information are much higher. So when Patrick Kennedy doesnt stop her from putting in an email server in her home to conduct all government business, even though after a certain after january 2009, people may not have known right away that mrs. Clinton didnt have a dot gov account, but within a couple of months, everybody knew. There were no dot gov emails from the secretary or her staff. At that point, its irrelevant to the criminal investigation because shes in line, as the secretary of state, to be president of the United States. So along with her job, not only to conduct foreign policy, comes the duty to understand and know classified information. That is the envelope from which the fbi is operating. This is not a gs 2 who accidentally slips a piece of paper in the wrong file and it stays out all nigh on somebodys desk. This is the person with highest classification possible who used a private server to conduct all of her government business. This has nothing to do with politics. Thats illegal. Per se. And the reason is simple. The government has a classified email system for a reason. Its to protect the security of National Security information, National Defense information, and to prevent its disclosure to unauthorized persons. The existence of that server violates every known federal law on the protection of classified information. Lets get to calls. Joe digenova is our guest. Rose is calling in from our democrats line. Missing or hiding or whatever. He should have been the one to go to the white house with them. And he didnt. Rose, what are you referring to . Caller im referring to, that Hillary Clinton has got so much baggage, she could fill a airplane hangar. And the problem is, these people are just conceding into these selling these people a fairy tale. Thats why the fbi is going after her. They want it. She wont give it to them. So guess what. Theyre going to go after the people that she hired to be around her. And thats why theyre giving them immunity because they want the truth. I think we got the point. Joe digenova, when you, as a prosecutor, former prosecutor, would you have gone after Bryan Pagliano . Absolutely. I think what the fbi and the Justice Department prosecutors are doing is precisely the right thing. You always try to work your way up. People are saying, why havent they interviewed Hillary Clinton . You never interview the ultimate target of an investigation first. You interview that person last after youve subpoenaed documents and talked to everybody else, so you can ask good questions. You take the people with perhaps a lot of information but no responsibility, and then you build your way up. Bryan pagliano is the linchpin of this case because we set up the server. He was hired to do so specifically. And interestingly enough, he never told the state department, by the way, that he was on the clinton private payroll. He lied on his government disclosure forms and thats one of the reasons he had to be granted immunity, because that lie, that failure to disclose was a federal crime. Is it a big deal crime . It can be a misdemeanor, it can be a felony depending on what it relates to. The point was, when he did not reveal that he had two jobs for mrs. Clinton, one off the payroll, that became a crime. Everything else taken together, he was the perfect person to immunize. I would have immunized him just as they did, and i probably would have waited as long as they did. They subpoenaed records from thirdparties about him, bank records, records of his Computer Service company and thats why theres a grand jury, because they cant issue subpoenas like that without a grand jury authorizing it. So they did exactly the right thing and i would have done it. Tweet. At this point, shouldnt the doj appoint an independent special prosecutor . Well, i will say this. Of course there is no independent counsel statute anymore. That was repealed by congress a while ago, a bipartisan desire not have it around. Theres a Justice Department regulation that allows for the appointment of a special counsel when theres a personal, political, or financial conflict of interest between the department, any of its senior officials and the target. At this point, if i were loretta lynch, i would appoint a special counsel. Why would she visit upon herself the responsibility for making this decision in a Political Year . Loretta lynch has a very good reputation, having been u. S. Attorney in brooklyn in new york twice. Do you know her at all . Ive never met her. I know her work. She seems to be a seasoned professional prosecutor. Shes studiously avoided answering questions about this investigation. Interestingly enough, she did not deny there was a grand jury when she was asked that question recently. I certainly would appoint a special counsel under the regulations. Because no matter what she does, if she refuses to go forward based on the publicly available evidence, i dont know how she will justify it. Because the evidence now requires a grand jury beyond whats already been started. And if she were to go forward, shes going to incur the enmity of people she doesnt have to. Appoint a special counsel. If you do that, its going to take time, because that person has to have a staff, they have to get up to speed, et cetera et cetera. Who knows. We shall see. This will be fascinating to watch. Jack, dallas, republican, youre on with joe did i jen va. Caller hey, joe, how you doing . Im jack strickland. The question i dont see being addressed is the abundance of references in her emails about a skril axe sorry about that. Were going to go ahead and move on to maria in bedford, new jersey. Maria, please go ahead with your question or comment. Caller yes, hello, im so honored to talk to this gentleman. I have three questions and maybe theyre far afield. I understand he says this pertains only to the server, but i was just wondering. He mentioned espionage, what about treason, if she used the server to make a deal through the foundation to get most of our uranium shipped to Foreign Countries in exchange for contributions. And blumenthal got contributions. So if he could explain high crimes and misdemeanors and a person of high rank. So beyond impeachment, i dont want her let off the hook and just said, you cant run right now. Id like to see prison time if shes found guilty of this. I appreciate his answers and also i wish hed give compliments to Judicial Watch who has done a lot about this. Thank you very much. First of all, treason is out of the question because anything that may have happened in this case does not appear to match the special rules in the constitution and statute for treason. Impeachment is out because shes no longer in office. Impeachment is political and legal removal from office. However, the issue of the foundation and its relationship to the server and any acts which may have been committed official acts in advantage for money donated to the Clinton Foundation is now part of the fbi investigation. We know from published reports and i know from conversations with former fbi agents, that the fbi, believe it or not, has a copy of this book, clinton c h cash and theyve delved into it deeply. Whats happening now, the russian boeing deal where boeing went after mrs. Clinton to help them get a multi billion dollar contract with the russians for boeing aircraft. They were fighting with airbus, the european giant in airplane production. Shortly after the russians awarded a contract, the russian government awarded contract to boeing. Boeing donated 900,000 to the Clinton Foundation, and then another 2 million to the state department for a special program. We now know that the agents are focusing on that, and theyre also focusing on a number of other things involving russia, including the uranium deals. So actually while its part of the server, because the agents, one of the things the agents have done, theyve gotten the server, plus another server, plus four servers from the state department. They have six servers in their possession. They are trying to recover the 30plusthousand emails that mrs. Clinton has said were personal and were deleted. The agents are operating under the theory that the personal emails that personal equals Clinton Foundation and that therefore things were deleted about the foundation which have something to do with cash and official acts. So that is clearly under way at this point. The lady is correct. Joe digenova, you said that we know, have there been leaks in this case . Have there been press conferences . Whats interesting about this. Washington is a 62 square miles of political space. We have no industry. Theres not even a new car dealership in the District Of Columbia. There are a few gas stations and then washington is all about government. Government is about connections. Government is about knowing people. Government is about passing legislation, holding hearings, issuing rulings, challenging those rulings. Former fbi agents talk to current fbi agents. When all is said and done, there are few secrets in this town. And one thing that we know for certain is that the agents who are assigned to this case and now its 150, according to the latest count, they are doing both an investigation of the server and how it was used and what was compromised. We know that as a result of analyzing the server, we know from intelligence sources that theres a major Damage Assessment under way to see what was compromised as a result of the server and we also know that now that the boeing deal and other things are being and the reason is, when the fbi goes out and talk to somebody about something, those people that they talk to, those witnesses, theyre not bound to secrecy. They talk to people and they say, i had the strangest visit today from an fbi agent involving boeing aircraft. So the answer is, washington is very good at keeping some secrets, but not very good at keeping many secrets. Who makes up the grand jury . And are there any evidence of leaks . Theres no evidence of leaks whatsoever. Usually grand juries are about 16 people, theyre citizens of the community, usually registered voters or people with drivers licenses. You dont have to be a registered voter to be a member of a grand jury. When youre sitting on a federal grand jury, you sit for usually a year and you come in maybe once a week or twice a week. Sometimes if its a very special case, youll only sit on that case and nothing else. So its americas way of having citizens vet the evidence. Once again, do we know for a fact that there is a grand jury . We no one has announced that there is. However, we know that if brian p pagly ano was granted statutory immunity, there would have to be one. And subpoenas have been issued, and for that, there would have to be a grand jury. Youre on with joe digenova. Caller im an rsnjd and a criminal psychologist. Why all of a sudden, weve all known about these emails and i worked for the government for many years before, when i was in college, from the top, to the bottom, to the side, to the west, i know where all of thems got the servers at. I could take you all the way texas. But let me tell you something. What youre saying about Hillary Clinton. I know Hillary Clinton very well myself and im going to tell you something, if it wasnt Hillary Clinton, this would not even be out. If she wasn she wasnt running for president. And i want to apologize for the gentleman from texas that got very vulgar. That was horrible. And im also from michigan. Have you noticed how angry people are when they talk . This gentleman hasnt done his job. He better start doing his job if he wants to talk about what about from the top to the bottom. I know where the private servers are at and i know about everything else. Thats all i can say about it, because i probably got my line bugged and theyll probably be knocking on my door. If this werent about the clintons, this wouldnt be a case . Actually, its just the reverse. There are federal employees all over this government and former federal employees who have had their clearances revoked, their jobs taken away from them, and who have gone to prison for compromising a single piece of classified information by not storing it properly, by leaving it out on their desk overnight, by giving it to someone who wasnt authorized. This happens regularly. In fact, mrs. Clinton is being given the benefit of the doubt, because she is such a famous and important person, both as a former first lady, a former United States senator and a former secretary of state. Shes being accorded a kind of deference in the investigation by the fbi and the Justice Department which would not be accorded to a common citizen. The lady from texas is absolutely wrong. And by the way, im not against that, as long as the fbi is doing their job, theres no reason to break into peoples houses and confront them. In a case like this, the fbi finds 20 people who are involved in the case. Theyd never go to their office. They go to their homes and say, im john smith from the fbi, we talk to you . Most people dont want to say no. But thats not happened once in this case with Hillary Clinton. And the reason, shes being given special treatment. But in one sense, thats okay. You dont need to treat someone like mrs. Clinton with disrespect, but we do need to treat her like anybody else would be treated in an investigation and as far as i can tell, the fbi is doing just that, theyre treating her just like they would treat anybody else, except theyre not knocking down peoples door on fifth avenue in new york at 2 million condos at 6 00 in the morning. Next call is bill in scottsdale, arizona, republican line. Hi, bill. Caller hi, thanks for taking my call. So two closely related questions. The first one, do you think that theres merit to the position that miss clinton and others have brought up the problem is overclassification in the Current System and complexity of different kinds of classification . And as a related question, in light of, for instance, the recent massive hack of eopm by probably Chinese Government agencies, when youre talking about the threat of penetration by, you know, china or russia or any actor that has extremely sophisticated capabilities in that regard. How much greater security are you actually getting on government hardware versus the private route that secretary clinton took . Because it seems like, at least in part, the outrage is over the exposure of classified information to foreign observants or bill, i think we got the point. Thank you. Joe . The im trying to remember the first part. The first part is overclassification. Theres some overclassification in the government. Thats fairly obvious. Anyone whos lived in this town knows that overclassification is a problem. However, in the situation were talking about here, were not talking about overclassification. Thats a post hoc argument thats been made by the secretary and her defenders. Were talking about, let me give aun example. There are 25 emails which have been taken off the secretarys server in this case, which are top secret, special access programs. Those are accessible by very few people in the United States government and yet they went through the computer. That is not about classification. Thats about classification and the nature of the information thats inside that particular. So this case is not about overclassification. Some of mrs. Clintons defenders have raised the issue of overclassification as kind of a distraction, and its an interesting thought, but it has nothing to do with her server. Shes raised the issue of post disclosure classification, which of course is when you put a stamp on something. That information was classified the moment it went wherever it went four, five, six years ago, and thats the standard thats used. As far as anything else, at this point, believe me, overclassification is not her problem. Lead editorial, usa today, clintons private email setup undermined open records act. Usa today writes, but the original sin is neither complex nor open to partisan interpretation, it involves compliance with the open records act and foia. Thats correct. As i said, at the beginning of this, why was the server put in chappaqua . There were no records on that account. Heres how we know that. When people filed freedom of information requests, they got back a norecords response. Think about this, no records for the secretary of state on any email account in the state department. Alarm bells should be going off everywhere inside the state department and yet they didnt. And the state Department Filed affidavits under oath that there were no records. Yet at the same time, there were people in the state department who knew that mrs. Clinton had no government account, but that all of her emails were going through a private server, unsecured, in chappaqua, new york. This server was set up to do exactly what it accomplished. It was designed so that no records would exist at the state department. So that when freedom of information requests were filed there, the answer would be, we have no records. J judge sullivan has issued an order allowing Judicial Watch to do the depositions of a number of people around Hillary Clinton as to how they set this up, why they did it, and more important than anything else, why didnt they tell the court that they knew where the records were, while the state department was saying it didnt know where they were. Because they were notified. All these people around hillary, including the secretary were told, we have a freedom of information request, and none of them told them about the server. Thats why theyll be put under oath in front of judge sullivan. Why would an activist group like Judicial Watch be given permission to depose people . Well, remember judge sullivan say clinton appointee. These not some wideranging, rightwing, radical jurist. Hes deeply offended that the freedom of information act, which is designed to say, i want to know whats going on as a citizen, if you as a journalist want to find out, if the press wants to find out, theyre entitled to file a request and the government has a legal duty to respond honestly and produce the records. If they dont produce the records, they have a duty to say why. The state department here said, we dont have any records. Of course they didnt. Because the server was in chappaqua, new york. So we have placed since the 1970s and the presidency of jimmy carter, immense significance on open government and the access to public records. This system was designed to deny access to public records, for four years, records that belonged to the people of the United States, not mrs. Clinton. The next call, christina in rochest rochester, michigan, independent. Go ahead. Reporte caller yes, mr. Digenova, i have been aware and watched you and your wife for years now. You and your wife are very, very republican. Ive got a couple things id like to ask. Do i have a right to know, as a citizen, what cheney and jill aby were talking about . How come we still havent found out who cheney met with way back in 2001 for energy . We werent allowed to find that out. So when it comes to republican things, i want to know where have you prosecuted or given all your wonderful experience when it comes to anybody republican . And just to add on to what she had to say, this tweet from jack hutton, ask him about his partisan bias. Ask him who is funding him. Im funding myself. I have a law practice in washington, d. C. With my wife and my son, and we earn money from legal fees. We receive no outside funding from anybody, any organization, the republican party, george sor os. No one gives us any money, especially uncle george. This is part of the political process in the United States. Whats interesting, ive been doing television for years, starting when i was u. S. Attorney and thereafter for almost 30 years now, never had a pr person. I get calls from the media. People want to talk to me. You guys call me and say come on and talk about this. I didnt solicit this interview. So the issue is, just to note, when i was u. S. Attorney, i prosecuted one of the biggest Insider Trading cases in history, and it involved the deputy secretary of defense, who was a highly placed republican. And we went on like that for years. When youre a prosecutor, it doesnt matter who somebodys Political Party is. But i understand the ladys question. You know, people are entitled to feel what they want to feel. What matters are the facts. Whats at issue here is not what i think. Its what the fbi thinks. Theres a grand jury for a reason. Its not because the fbi is a tool of the republican party. Some of hillarys supporters have said that mr. Comey is a cool of the republican party. That the Inspector General of the Intelligence Community is a tool of the republican party. Hes a former fbi agent during the Clinton Administration. So all of these wild allegations, theyre wonderful, i love it, its part of the political process and i think its terrific that a lady can call and ask a question like that. Happy to answer it. And david brock, founder of correct the record, a proclinton super pac, has an opposing view oped in the usa today paper. This is not a scandal, he writes. There was no Security Breach of secretary clintons email or server. Secretary clinton has acknowledged that the decision to set up her email this way was not the best choice. She has taken full responsibility for that decision and took the unprecedented step of asking the state department to make all her workrelated emails public. Well, mr. Brock is a famous partisan, who supports the do so. Although i think hes wrong in so many places, its hard to know where to begin. In fact, the creation of the private server, from its inception, as general hayden called it, it was illegal. That was an illegal act, the establishment of that server to provide all of the email for mrs. Clinton and her staff and have all government information go through it. The rest of it doesnt make any difference, what shes agreed to or wants to have released, its not her property. Emails belong to the United States government. Even the ones she said are personal, thats not her property. That belongs to the United States government. The fbi is investigating what was deleted because its a crime to delete information from a server when it has government information on it. I welcome mr. Brocks oped piece, i hope he continues to write more. David, pasadena, maryland, democrats line, please go ahead with your question or comment. Caller yeah, good morning. A couple callers appreciated my thought about this gentleman being a republican partisan, especially during the Clinton Administration with him and his wife. I want to just give everybody an example of the innuendos that he drops that will clue them in to whether to believe what he says or not. He mentioned that hes only being funded by his law firm and he snidely made a comment but not george soros. Heres the crux of it. Were you ever funded by richard melon scathe . Or the Koch Brothers . The answer is no. Caller okay, but the fact that you didnt say that, you just left it hanging out there. And i have another question. Do you have a list . Are you like joe mccarthy . Do you have a list . Caller sir, we have a minute to ask questions. You have the whole screen. Okay, so heres my question. That was a comment. My question is, you mentioned other secretaries of state did not have the server in the basement of their house, that ominous basement of their house. How much other secretary of states that had their servers, okay, elsewhere, had secret service surrounding their house because the womans husband was president of the United States david, well revisit that. What about secretary rice and secretary powell, who also used personal email . Well, heres the difference. Each of them admit that from time to time, instead of using their dot gov, government server, they sent messages on their private email. They admit they shouldnt have done that. And ash carter admits he was using his private email almost entirely for his dod communications. And he realizes that was a big mistake when all this exploded. Mrs. Clintons case is entirely different from secretary powell, albright. They didnt have a private server, whether its a basement or not. Mrs. Clinton had no other server other than the private server at chappaqua, new york, at the house. Every bit of government business that she did went through that server. Whether this gentleman likes it or not, that was not the case with secretaries powell, albright and rice. And when mrs. Clinton did that, when she set that up, she committed a crime. And David Petraeus was using a gmail account, wasnt he . He used a gmail account. And also in his case, which is why he pleaded guilty to a misdemeanor, he actually had in his possession highly classified handwritten notes about Ongoing Operations and he gave copies of those notes to his mistress and biographer. Something he should have been prosecuted. And he asked, do you think mrs. Clinton is being treated unfairly . He said absolutely not. The investigation needs to go forward and it appears to be a fair and justified one. Dan in iron ridge, wisconsin, republican line, go ahead, dan. Caller yes, good morning. The fact that she i mean, this had to come from the top down. And the fact that she had this server set up by the government, and that she erased any material on it is a criminal offense, in my opinion. She should have never erased anything. Since its a government server, anything she put on it should be the government should be able to take and use it in an investigation. I dont know who helped her set this up from the top down, but its going to point to people and i dont know if people are going to bail on her, or theyre going to back her up. What she did is totally against the law and i bet you ten bucks this all points back to something that she did in libya. And if thats truth, theyre going to hang her for it, and i hope they do. Thats dan. Any comment for dan . The issue is the server. This whole case goes back to where it was put, why it was put there, and who put it there. Thats why Bryan Pagliano was immunized, because he was present at the creation as dean atchison used to say. He was present at the creation of the crime. David brock, who is an interesting fellow historically, receives a lot of money from the Clinton Foundation and thirdparties that the clintons own. Another tweet, please ask joe digenova to discuss the specifics of retroactive classification. What happens is, something is found and doesnt have a classification mark on it. If its something serious, theyll look at it, and if it comes from a person senior enough in government, theyll say it was not classified by being marked at the time. When it was sent it was a piece of classified information. So for future people, we will mark it in a certain way and say its classified. It just means that something wasnt marked at the time. It doesnt mean that it wasnt classified. Classified information is classified from the fomoment it created, whether its marked or not. When its marked later, thats to help people down the road understand something. Last call, cornell in tulsa, oklahoma, independent. Caller oh, hello, joe. I remember you from the early 90s when you were george h. W. Bush appointed you to investigate something, the tampering of bill clintons passport book. You appeared on fox news, doing the Monica Lewinsky no, i wasnt appointed by caller but let me actually, you did, that was a great critic of the alberto gonzalez. Caller january 7th, will you apologize once Hillary Clinton is not indicted for anything . And she wont be indicted for anything, joe. Will you finally be man enough to apologize . What were doing, were doing legal commentary on something that the fbi is investigating. It is now beyond any doubt that theres a criminal investigation of the conduct of mrs. Clinton in placing a private server in her home. Theres nothing to apologize about. By the way, i take no pleasure in mrs. Clinton having this problem. I do take a great interest as someone who has prosecuted espionage cases who holds a top secret and above security clearance, these things mean something. And for people who dont think they dont and violate the law, they should be held accountable. Another tweet. Was general petraeus covered under the whistleblower law . Not to my knowledge. Nothing that he did or said would have had any basis whatsoever in being a whistleblower. He was someone who had classified information, knew it was classified, and had a duty to protect it, and he didnt protect it. So therefore, his prosecution, i think, was justified. Another tweet for you. Sounds like of all the secretaries, hrcs server was more secure than gmail, yahoo server . I dont know how that person would know that, since the fbi is investigating whether or not it was compromised. And since it was not encrypted, according to information from brian pagyan pagliano, which ha leaked to the public, it does not have any encryption. It doesnt have government encryption because it wasnt a government server. I think opm and the compromise, im one of the people whose information was compromised at opm because of the security clearance. They got my information. They got my wifes information. So we believe in strong servers with Great Security systems and mrs. Clintons server didnt have any of that regrettably. As a lawyer, former federal prosecutor, im going to change years just a little bit here. Tid what you think of it. Judge garland is a profoundly serious guy who really would be the kind of person you want to have on the supreme court. If obama wants to get a fantastic judge on the court, hes got one ready to go in merrick garland. This is from the new york times, 2010. Is me. That i have known him for many years. He is a fabulous judge. A decent human being. Wonderful guy. And unfortunately got himself in the middle of a political battle where his merits are not at issue. He is a great down. He is a phenomenal person. And in this mornings usa today, co alberto gonzales, former attorney general for george to be bush says give judge garland a senate vote. May end up on the courts. If Hillary Clinton wins, the senate could vote him in right away to keep a more literal