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here's a look at some of the recent ads from the presidential campaigns. i am hillary clinton and i approved this message. >> 1964 the fear of nuclear war we had as children i thought our children what ever have to deal with again and see that coming forward is scary. >> donald trump asked three times why can't we use nuclear weapons. >> i want to be unpredictable. >> what safeguards are there to stop any president who may not be stable full from the launching of nuclear weapons. the commander-in-chief is the commander-in-chief. >> our next president faces daunting challenges in a dangerous world, iran promoting terrorism, north korea threatening, isis on the rise, hillary clinton fails every single time.

now she wants to be president. hillary clinton doesn't have the strength or stamina to lead. she failed as the secretary of state. don't let her fail us again. >> i'm donald trump and i approved this message. >> coverage continues in wisconsin with donald trump and his running mate. live coverage at 8 p.m. on c-span.

a conservative political perspective on the mike gallagher show live from new york city all this week live on c-span2. now a look at the legal issues at play in the fbi's newest probe into hillary clinton's e-mails. s >> host: professor of lawon where he specializes in constitutional law joining us now to take a look at the legal issues at play in the investigation of the hillary clinton e-mails. considering where the fbi director james comey left this back in july the how surprised were you on friday when you've read about the letter to congress? >> guest: frankly i was pretty flabbergasted.

i think it's a very unusual ste for the fbi director to send a letter like that at any point in any investigation and to send a letter like that so close to the election, and let's be clearet that doesn't say all that much because he hasn't yet even looked at any of the e-mails that have been confiscated from the devices is unprecedented and raises a serious question about the characters judgment. there was no smoking guns we have to ask why did he do it. >> host: considering how much he talked about what was in the investigation and what they found in the july press conference, do you think he daeds to explain more before election day? >> guest: i think it would help if he explains more. l i think there is a lot of questions that were not answered and among those are the sea have any reason to believe there's anything in this new trove of e-mails that actually changes his analysis from july or any

reason to believe the content of the e-mails most of which are not involving secretary clinton are actually relevant and how could he have known that on friday before he had access to t any of the e-mails, i think there's more explaining to be done and i think it is the cause of his own actions. he's created this situation. poa >> reports of up to 600,000 e-mails that may not relate to the original investigation it's likely that this is going to take longer than the next eight days. regardless of who is elected november 8, do you think there will be a push to wrap this up before the next president is sworn in? >> guest: the fbi will go as quickly as they can. they now have to and i think itt

is unrelated to the timing of the next inauguration.em i expect we will see some movement in weeks, not months because i think that he's put the bureau and a very tight and difficult position here. >> host: let's talk about ithi with a hypothetical if hillary clinton is elected, who defendss her if this investigation goes past her swearing in, wha swears the r relationship between the i and the justice department if she is elected the next president as this continues? >> guest: i think that is an interesting and broad political dynamic. the fbi director serves at the pleasure of the president, and there is precedence for firing an fbi director he or she believed was engaging inin misconduct. bill clinton fired sessions back in 93. i think the real question is if somehow despite everything we've heard so far, despite everything there director said and all the outward appearances, if there

does turn out to be some kind of incriminating piece of evidence in the e-mails that suggests that secretary clinton broke the law, and again there's been no evidence of that, then frankly the remedy at that point would be the one the constitution prescribes which is impeachment. we would seek all sperm members of the house and senate to proceed in a direction that we are nowhere near that.d the point is understood is that it revealed nothing about secretary clinton either way. all it revealed is that there were new e-mails most of whichre probably have nothing to do with secretary clinton that he bbs aa are relevant to an investigation that is ongoing.ny so we are a long way away from any suggestion that no now discredited some kind of a smoking gun or an incriminatingg statement that the fbi hadn't previously found but all of a i sudden shows up in the e-mails

on anthony wiener . social devices. program >> host: if you want to join the conversation, stephen is with the university of texas and specializes in constitutional law and is a guest on the program in the past. indecrats (202)748-8000, (202)7, republican (727)848-0001 by independent, 748-0002.setts. kurt is in springfield massachusetts. good morning.ke eve >> caller: i hope you are having a good day. thank you for c-span. my problem in the investigation is there seems to be acal an smokescreen.

there's all this smoke aroundre secretary clinton and john seems to hav have been a fighter attad and i'm concerned about the political nature. i do think the politics of this are distressing and complicated. if that is their purpose. that was his purpose and goal to influence the election given the amount of scrutiny paid to the e-mails.

what would happen if the government looks at my e-mails that much of scrutiny and no fire ifighter is a really telli. conclusion.d of those on the litigated cases and investigation of secretary clinton has gone nowhere. since harry reid brought those up yesterday let's talk about the act violations and how one proves the violation and what the penaltthatthe penalty coulds proven. the members of the roosevelt administration have helped the congressional candidates get

elected in the midterm electio elections. that's why the federal employees can't bear the candidates t-shirts to the office in most cases that the act also has a general prohibition on any official conduct. throughout the process, the unusual july press conference, the unprecedented testimony before congress shortly thereafter. it would have had to be the director's purpose to influence 20 affect the election.

from 2005 to 2007 given the absence of a good reason. the worst possible penalty for violating it is being fired. there is dozens or a couple hundred but the reality is we don't know much about the casesl because it is usually relatively

technical violations by low l relatively low-level governmentl employees and it is rare that you would have a senior government official into thesu director oand thedirector of thh a public offering statement. they tend to understand the skepticism they should approach such statements and part of it is because every federal agency issues internal guidelines reminding their employees in the run-up to an election aboutt avoiding even the appearance and there is a pretty good case here that even if the director didn't violate the act, he may have run afoul of the guidelines. >> host: eric holder bringing up those guidelines in his op-ed attending the "washington post" that's getting a lot of attention today. barbara is in new britain

connecticut, good morning.. >> caller: good morning. i was just wondering if there is a violation he used a public server e-mail and they are not retrievable so why is hillary clinton being persecuted and no. colin powell. >> guest: i think it is worth separating out two different issues. first is the use of a nongovernmental e-mail server by secretary clinton that suggests we know colin powell while secretary of state condoleezza rice used a similar set while she was secretary of state and i don't think that anyone is suggesting that using a private e-mail server by itself is illegal. it may be inconsistent with federal records laws but those are accessed modest in penalties and criminal statutes.

the e-mails in the case and the reason her critics have been making so much out of this affair is the extent to which in her private e-mail server or shv may have been communicating about the class item information, and there are veryl specific criminal prohibitions on the wrongful disclosure. the there is's classified information and that's where i could see the e-mail taking upae to itself. but the larger point off the top we have had months if not years a discussion of e-mails and we've seen so many of them and have a thorough investigation bc the fbi in putting the director comey that we can all agree was for the clinton camp. was unprecedented probably not, was it illegal, so far there has

been no evidence that the organization of the country did so. so i think that it is the new ones why the situation is different and why we are still at the place where at most this is a misuse of documents much in the same way the end of the george w. bush administration. so in the record he record or rt deleted tens of thousands ofre e-mails.s pertai so whether secretary clinton violated the wall in the classified information so far there is no indication that she did. >> host: woodbridge virginia, good morning.ity >> caller: you are doing a aall good job much more than all thec major corporate media and i

commend you for that. hillary being guilty of espionage there is no criminal activity in the prosecution rivals and it's kind of this political thing because nobody other than hillary was hurt and nobody lost their lives.ion is f her reputation is for good decision-making and having confidence in the nation. i'm pretty sure she learned from that. but compare that to the line to go to war in torturing people, a lot of people lost their lives or were damaged by bath and congress refused even to up prosecute and we are still trying to clean up th that mess. it's like going through surgery where the person has a mortal wound and they are paying attention to a makeover.

it's obviously political when guu compare to that. >> host: mr. vladeck? >> guest: in fairness to the principle of the critics i think the concern about using private e-mail servers is not just bad judgment but they are more vulnerable to the intrusion especially by the foreign governments in that there is a heightened risk perhaps that classified information discussen on a private server could fall into the wrong hands and be used to the detriment of the national security. there are two critical responses to that. according to the fbi, secretary clinton was engaged in these discussions of classified information on her private server but perhaps the more important point there is every

indication that these same cyber intruders have been successful in bridging out so it's not clear if the objection is a vulnerability of e-mails on a private server if it actually holds water given how many prominent tax in the databases and e-mail accounts we have seen over the last couple of years. >> host: what is your opinion of wiki leaks? >> guest: two or three years ago a lot of folks would have looked at it as a radical but relatively neutral organization designed to expose all kinds oft government information that was previously secret and it now seems pretty clear they have an agenda to discredit, oppose and try to block hillary clinton

from being elected. i have concerns when any foreign forevezation or a foreign government tries to play such an active role in our elect will process. to suggest they have an agenda that would be benefited from one to another i think that is a real sobering thought for people to have when they go to the calls. >> host: joe, republican. good morning. >> caller: good morning. how are you doing this morning. my question is if hillary clinton had told the truth about who e-mails in the beginning iis don't think this would be the discussion right now. i am afraid donald trump and we need to get back to the basics of america and how people are treated and how we are going to protect the americans here in the united states. my big thing is people have been

brainwashed by hillary clinton and she isn't going to do anything for this country. i support donald trump 100% and that is all i have to say. >> host: on the disclosure by the clinton camp and the impact on the investigation. >> guest: i do think if hillary clinton had it all to do over again, the initial reaction to the story, the initialns response to the entire situation would have been different and much more detailed and comprehensive and apologetic. i think it is clear that then i clinton campaign wasn't ready for how big of an issue this snowballed into and how big a deaof adeal it was especially te extent it reinforced many of her critics on the characterizations and objections to her. i will say in response to the last caller if we measure then

candidates based upon their general inclination to tell the truth i don't think it is a close call and i don't think it captures out in favor of theth last call supported about its revisiting how this could have played out differently if secretary clinton had been much more apologetic from the get-go and that is something everyone in that campaign has come to regret. >> host: the swing state of nevada. democrats, keith.o good morning. >> caller: yes, i just want to follow up on what your guest is speaking. is a i don't know if the president is a federal employee and if any federal employee had an e-mail that was bad for the country they would be fired and hillary clinton paid her e-mail and lieo about it. so it's hard to follow that and it's hard to follow a democrat

who will believe her because she lied from the get-go and lives are at stake. >> host: professor vladeck, did you want to respond? >> guest: it's not as open and ovut as the caller suggests. the reality is government employees communicate over e-mail all the time about things perhaps they are not supposed to. government employees routinely make mistakes or errors when discussing information that may or may not be sensitive oror classified and part of the problem isn't with the malicious intent of the employees. it's with the complex and inne d some ways completely backward system we have today for the classification of information.to i think everyone in washington and folks around the country would agree we have a massive overclassification problem and one of the symptoms is

government employees from the level of cabinet secretaryan struggling to figure out exactly what they can and cannot communicate about a particular networks.. did secretary clinton make mistakes, she admitted that she did but i think folks should hor think carefully and with more nuance about how hard it is for those in her position that go back and forth between classified and unclassified and have an obligation to act as expediently as they can to try to remember to dot their i.'s and cross the t.'s to remember which e-mail program. it's one of the other central charges against secretary clinton is that she didn't react quickly enough to the situations there seems to be a tension between the two things. we want the secretary to be unfettered by procedurale

constraints to do what is in the best interest of the country that when they make a mistake they are untrustworthy liars. that is a double standard and we have to be careful before wefu cast aspersions on folks in the east positions. >> host: 15 or 20 minutes left. joining us from austin at the university of texas school of law specializing in uni constitutional law previously worked at american university in dc focusing on federal jurisdiction, constitutional law, national security. earlier in the program, we gave you a hypothetical, so here's another one for you. if hillary clinton is elected in this investigation is ongoing, copresident obama issue a pardon about anything that might come from this investigation beforeis she is then sworn in? >> guest: i think he could.cons the power in the constitution is pretty absolute and i think that would exculpate her from any

criminal liability. a pardon wouldn't necessarily block the congress if it wanted to from ensuing the impeachment proceedings. but the power is impervious to pardon otherwise it wouldn't make sense. so we would still have the possibility a congress that would sufficiently disposed against a president clinton would try to impeach her, but i think we have a pretty good lesson from the bill clinton administration about the difficulty of impeaching a president for the reasons of political disagreement as opposed to significant legale malfeasance and again, we are so far from any indication that secretary clinton did anything that was more than careless but i think it's not even necessarily productive to think about the hypotheticals because it is hard to fathom how we get from here to there. >> host: nancy is waiting, a democrat. good morning. >> caller: good morning and thank you for c-span.

my question is could you elaborate more about the factt check because harry reid put out letting the fbi director know he might have violated it, and what would the possible ramifications before him, and i hate to use this expression but it looks like a witchhunt to me. i appreciate and i will take your answers off the air. thank you. >> guest: the hatch act is an administrative disciplinary regime, where basically a severe consequence that someone like director comey could face is termination. but director comey, unlike 99% of the federal employee is is an apple employee who serves at the pleasure of the president so even without the act the president could con spire butr director at anytime and fo any y reason. so in this case i think senator reid . letter is less about

trying to provoke an investigation to director comey been about expressing his displeasure with someone as this prominent as the fbi director taking such a public and potentially prominent step so close to an election that could be read as the candidate against another and most importantly, without any reason for doing so and any reason to think that the development of discovering thesy new e-mails might materially alter the outcome. i will say i don't think it's fair to point to the fbi and the justice department and accused them of a witchhunt. if there is a witchhunt it is coming from secretary clinton's credit that tried so hard to make this into the issue and i think it is telling that even director comey doesn't think there is a smoking gun despite

the statement on the subject. >> host: some democrats saying to step down. t a member of the judiciary committee from tennessee inia light of the comments by director comey regarding the clinton e-mails i called on him- to raise my income and a link to his statement and reasons for doing so. jeanngene is an pipe creek texa. republican. good morning. >> caller: good morning. >> host: go ahead. >> caller: i have a question. considering the sensitivity of the letter, why wasn't the fbi whether classified orial since confidential since they were not notifying them of evidence of anything in the second, if i recall, the addressees were on the republican. what's going on there? >> guest: the letter was sent to the chairs of the committee that because republicans control the house and the senate at the

moment happened to the republicans.te that was a matter of protocol. i the question about the letter and why it wasn't classified is a good one. i don't think there's anythingnn that specifies there is no national security information and certainly the director meant for the letter to theconfid, confidential but the only one that leaks from the top i think it was inevitable when they sent a letter to capitol hill by someone on the hill especially someone predisposed to try to sabotage the clinton campaign would leak it and that is how it came out so quickly friday.or if anything, i think itd reinforces director comey . bad judgment. we learned over the weekend he sent this letter over the objections of a number tha of hs colleagues in both the justiceci department and the fbi, so it's not like there were folks telling him this was going to happen and go down this way. i suspect if he were here,

director comey would say the public would be just as outraged if they found out after about election that this happened two weeks before hand and i had an obligation to turn these materials over to identify the existence as soon as i was aware of them and the problem is it'sf a dilemma from the fbi director's perspective but one that is in favor of saying nothing unless there is some compelling reason to put matters on the public record. .. om or or had etary clinton information relevant to the election. have tipped in favor of sitting on his hands and we're seeing consequences of the contrary.o host: director comey giving more explanation to the timing of to those inside the f.b.i. here is front page leak story

from the "washington post" today. f.b.i. agents investigating hillary clinton's use of private while secretary of state knew that messages ecovered in a separate probe might be germane to the case. they waited weeks before director. with the the director comey was informed of the development thursday and legislators the next day, letting them know he take t the team should "appropriate steps des to allow investigators to review the e-mails. we will certainly look for more information as it unfolds about the timing of this and what comes from that investigation m but 10 minutes left on the program. we want to get to as many calls as we can. tina is in north carolina. good morning. >> caller: was good tina are you with us? we will go to james and maryil belle washington, a democrat. james, good morning.

>> caller: good morning. i just have one opinion and aon question. i would rather have my server out back in the woods than on some gigantic golden --.gov buty question is who in the state department decides what is classified and how it is classified. i thought it would be the secretary of state deciding what was the best. thank you very much for your time.classi >> guest: i think james is onto something here. the secretary of state, secretary clinton is secretary clinton as the top official in the state department comes to classified decisions. she does have what's called original classification authority site do think there is a difference between a cabinet official who in theory has the ability to declassify or classify relevant informationd y

and as a alive staffer who does not the authority. that said i don't think it's worth of its turned out to be true that secretary clinton was discussing incredibly sensitive classified information on a private network, and one that she may have come to suspect was breached i think this would be a different conversation but it'so worth what we know today. what we know is although there were e-mails on a private server that included classified information there's not nearly enough evidence to suggest that secretary clinton was knowingly discussing classified information on her private server, that she was doing so in a manner designed to harm the national security of the united states, that in the process she was somehow some birding security procedures for the same documents and again that goes to james larger point.is it's not exactly obvious that

this kind of information is net safer on the state department's public network than it is on a private server. that's not to condone or conduct. i think it's still something she shouldn't have done but this is not as open and shut as so many of secretary clinton's critics put out. >> host: another question on the hatch act on twitter terrine rights and what about the president campaigning for hillary clinton on taxpayersbout dime? what about the hatch act bear? >> guest: the hatch act does not apply to everybody equally. for example government officials are allowed to get political candidates. congress amended the hatch actct pa 2012 to relax some of thehe constraints on the participation by government officials in campaigns. >> host: what was the reason for doing that? >> guest: i think the reasonon for doing that was it was a myth to think that senior officials

like the president and cabinet secretaries did have a stake in the election and weren't senior members of the relevant party that it would put the challenger at a disadvantage vis-à-vis an incumbent if you are so thoroughly handicapping some of the senior circuit to the person right for office. indeed if the president himself or herself are running for re-election it would be odd that the hatch act would disempower them. the hatch act has exceptions designed to allow to let congress what was thought of as reasonable conduct by senior government officials but had no exception for the fbi in a criminal case or potentially criminal case to make this kind of statement so close to the election.the this is the exact kind of conduct that the hatch act at least in part was designed to at least dissuade and so even though director comey didn't violate the hatch act that the purpose of the act is not to prevent folks from helping thei candidates when they're nott

wearing their government that periods to prevent government officials from doing things that could in fact they are on the election and in some regard putting their thumb on the scale and away that impact how individuals vote. santa >> host: jonathan in california, a republican thanks for waiting. t >> caller: good morning. i'd like to say i watch the hearing semi-have taken the way of a lot of things that have been mentioned in the news and one of them is that like your guest says she doesn't have a pattern of having a lot of top secret stuff on her but she did have stuff on her server so that was a clear violation although was not it. comey said at that meeting that the statute itself which was only three or four sentencess long at 92 years old had onlyth one president said against it in those 92 years and so the law itself wouldn't hold up and it would appear it was their witch

hunt. so he back in july said in order to avoid it looking like a political witchhunt he was going to let it go. he also said back then hillary clinton would not get any type a of clearance status in the fbi with what she has done. let's go back to today. what has happened is that hillary told the up the eye that she gave him everything and now it's come down to 650 thousand more e-mails. comey has no choice. this is not a political witchhunt. comey has no choice but to open it up again and look at the 650 and 50,000 but if you go back to comey's hearing he did addressdh it. he did not want this to be a political witchhunt. >> host: i point our viewers to c-span.org if they want tore re-watch the hearing but stephen vladek go ahead.e >> guest: there are two points to clarify in the caller's comments. first i don't think anyone ever suggested including director

comey that it was extremely clear that secretary clinton violated the espionage act simply by keeping couple of e-mails that may have containedr classified information under server. one of the most common misconceptions about the espionage act, does not generally illegal under u.s. law simply to discuss classified information in a form in which you're not supposed to. the espionage act is not categorical. it is a 99-year-old statute that is full of holes and overlapping so i really think folks need to be careful before saying because it was classified and must be illegal. that's not how the law works. on the point about hillary clinton's e-mails let's be clear the e-mails at the heart of the director are e-mails that were on huma abedin and anthony's private electronic devices. they were not e-mails in the secretary's position. they were not a mouse she had any right to turnover.op

so i think we have to be very careful about allowing our political prejudices to color how we evaluate the facts herer. and the facts are that secretary clinton did indeed have at least f.b. e-mails on a private server that contain classified information. the director of the fbi concluded there was not enough based on that to conclude she violated the espionage act partly because of the complicated convoluted and imperfect statute and the latest development last week was not director comey real putting the investigation. rather was director comey balloting that the 650,000 e-mails are other people's devices might and i want to underscore mic, the relative. it seems to me and tell and unless there's some reason to believe that the new new e-mails which were not secretary clinton's possession somehowinei changed. i think it was irresponsible for

director comey to go out on the limb and i think we have to look no further than the new cycle and the public reaction since friday for proof of that. this is all everyone is talking about in the purpose of the hatch act is to prevent one government employee from taking f.b. the new cycle like this. this is not how the fbi is supposed to run operations. not how the fbi looks at it and it's a bad president no matter what happens on november 8 at no matter what happens with hillary clinton. >> host: a note for viewers our viewers to hear from hillary clinton and donald trump again today at 6:15 live on c-span. we will be airing the hillary clinton campaign rally in cincinnati ohio and caring donald trump's campaign rally in grand rapids michigan. let's go to randy who has been waiting in south carolina and independent.

randy, good morning. >> caller: good morning. my question is i guess he kind of answered on the hatch act. i didn't realize there were exceptions to it. for the president and vice president and i guess that includes the congressionalud committee members. a lot i watch her committee hearings a lot. one of the ladies had -- so i guess that's excused also in the next question is if you can answer this, is the democratic party picking up the tab for th federal employees that travel and campaign for her? is the democratic party picking up that medical? >> guest: the hatch act is directed at executive employees. those are books that are in them executive branch, not congress. congress wouldn't be able to campaign for itself. also it's directed at folks using government money to

support particular candidates. so we have folks who go out on the campaign trail to support secretary clinton who are not the president or the vice president or just regular government employees. they are not supposed to be using government funding to sponsor that. that's why we often see folks take a temporary leave of absence from their job.efore an in the last six weeks before the election to avoid the hatch act. the general question is they are covered out-of-pocket are covered by the campaigns are the democratic in national committees. this is not new. i don't think this is any big scandal in this election cycle. this is how the system works and democrats and republicans understand it's how the system works. what you hear is not involved in the spokes in and campaigns. the statement someone with the authority and the seniority of the fbi director so close to an elon