over president obama's nomination of judge merrick garland to the supreme court. news makers af 10:00 a.m. and 6:00 p.m. eastern on c-span. book tv is in primetime on c-span 2 starting monday night at 8:30 eastern. each night will feature a series of programs on topics ranging from politics and education to medical care and national security. plus, encore presentations from recent book festivals. tune in for book tv in primetime, all next week on c-span 2. go to book tv.org for the complete schedule. now a discussion on the status of the investigation into the e-mails sent to and from hillary clinton's personal server during her tenure as secretary of state. from washington journal, this is about 45 minutes.

>> 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 e-mail 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 it's 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 you're 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? >> there's letter immunity, where a prosecutor hands your attorney a letter that says, we won't 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 what's 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 can't 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 don't 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, it's statutory immunity, which would mean there's a grand jury sitting which has at least issued subpoenas. >> what's 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 it's 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 it's just the intent to do the act. sometimes it's 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, there's something called gross negligence under the espionage statutes. if you mishandle classified information, don't store it properly, send it to people who aren't entitled to have it, put it on a private server in a home, send it to somebody who doesn't 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 don't 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 you're doing something that's bad. so both of those are at play in the hillary clinton e-mail server investigation. do you think that there was criminal intent or gross negligence in this case? >> here's how i've analyzed it. i asked myself at the beginning of this. what would i do if i were the u.s. attorney investigating this case? here's 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 secretary's 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 it's in a government server, there will be thousands of people that could know what's on the server. if it's a private server and only you and a few people have access, that's the intent to evade and hide. for example, if it's 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 don't. the records exist on mrs. clinton's private server. that's 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 there's a private server, i want to take testimony from everybody involved in that process. >> joe digenova is our guest. he's been a u.s. attorney for the district of columbia during the reagan administration. he prosecuted john hinckley.

he's been a staff director at the senate rules committee. he's investigated governor spitzer up in new york. he's 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 c-span, we helped launch c-span, which was one of my favorite moments. >> too bad he's not around today. >> god bless him. >> joe digenova is our guest and we're talking about the hillary clinton e-mail investigation. we want to get your points of

view as well. numbers on the screen. 202-748-8002 for independents. this is hillary clinton at a recent debate. >> it wasn't the best choice. i made a mistake. it was not prohibitive. it was not in any way disallowed. and as i've said and as now has come out, my predecessors did the same thing and many other people in the government. but here's the cut to the chase facts. did i not send or receive any e-mails marked classified at the time. what you're 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 e-mails to be made public, then all the rest of the government gets to weigh in.

and some other parts of the government -- we're not exactly sure who -- has concluded that some of the e-mails should be now retroactively classified. they just said the same thing to former secretary colin powell. we'll retro actively classify e-mails you sent personally. he was right when he said it's an absurdity. i think what we've got here is a case of overclassification. i'm not concerned about it. i'm 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 didn't have to ask anyone. >> if you get indicted, will you drop out? >> oh, for goodness sake, that's not going to happen. i'm 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 e-mail account to send an e-mail to the state department, not one of those former secretaries of state had a private e-mail 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 e-mail. it's about the server. the server is the essence of the case, that's why bryan pagliano was so important, why the fbi has subpoenaed documents along with the federal grand jury from third-party servers, people who provide service for that computer. the issue is not the e-mails, but on a private thing. it clearly does relate to the use of -- let's say, when you have that private server in your home in chappaqua, and it's off the grid. it's not government, it's 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, that's 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 e-mail. what matters is the sub stance of the information in the communication. and it's the duty of everyone who has signed a non-disclosure agreement when they're given their top secret security clearns. they sign a piece of paper and say, i know it's my duty to know what's classified whether it's 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 you're not on either side -- >> no. >> -- what would you tell her? >> i would tell her, number one, don't be interviewed by the fbi. because if you lie, you'll 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 you're lying. given what the fbi knows about this case, they know who's lying and who's 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, she'll say the state department knew i had this set up all along. they didn't stop me or tell me not to do it. nobody came and seized the computer. there's no correspondence saying i shouldn't do this. unfortunately, that's not a defense. she's one of ten people in the united states government who has statutory authority to classify information. there's 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 doesn't stop her from putting in an e-mail 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 didn't have a dot

gov account, but within a couple of months, everybody knew. there were no dot gov e-mails from the secretary or her staff. at that point, it's irrelevant to the criminal investigation because she's 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 somebody's 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. that's illegal. per se. and the reason is simple. the government has a classified e-mail system for a reason. it's 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. >> let's 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 didn't. >> rose, what are you referring to? >> caller: i'm 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. that's why the fbi is going after her. they want it. she won't give it to them. so guess what.

they're going to go after the people that she hired to be around her. and that's why they're 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 haven't they interviewed hillary clinton? you never interview the ultimate target of an investigation first. you interview that person last after you've 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 that's 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 third-parties about him, bank records, records of his computer service company and that's why there's a grand jury, because they can't 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, shouldn't 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. there's a justice department regulation that allows for the appointment of a special counsel when there's 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? >> i've never met her. i know her work. she seems to be a seasoned professional prosecutor. she's 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 don't know how she will justify it. because the evidence now requires a grand jury beyond what's already been started. and if she were to go forward, she's going to incur the enmity of people she doesn't have to. appoint a special counsel. if you do that, it's 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, you're on with joe did i jen va. >> caller: hey, joe, how you doing? i'm jack strickland. the question i don't see being addressed is the abundance of references in her e-mails about a skril axe -- >> sorry about that. we're 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, i'm so honored to talk to this

gentleman. i have three questions and maybe they're 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 don't want her let off the hook and just said, you can't run right now. i'd like to see prison time if she's found guilty of this. i appreciate his answers and also i wish he'd 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 she's 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 they've delved into it deeply. what's 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 they're also focusing on a number of other things involving russia, including the uranium deals. so actually while it's part of the server, because the agents, one of the things the agents have done, they've 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 30-plus-thousand e-mails 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? >> what's interesting about this. washington is a 62 square miles of political space. we have no industry. there's 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 it's 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 there's 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, they're 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? >> there's no evidence of leaks whatsoever. usually grand juries are about 16 people, they're citizens of the community, usually registered voters or people with driver's licenses. you don't have to be a registered voter to be a member of a grand jury. when you're 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 it's a very special case, you'll only sit on that case and nothing else. so it's america's 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. >> you're on with joe digenova. >> caller: i'm an rsnjd and a criminal psychologist. why all of a sudden, we've all known about these e-mails 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 them's

got the servers at. i could take you all the way texas. but let me tell you something. what you're saying about hillary clinton. i know hillary clinton very well myself and i'm going to tell you something, if it wasn't hillary clinton, this would not even be out. if she wasn she wasn't running for president. and i want to apologize for the gentleman from texas that got very vulgar. that was horrible. and i'm also from michigan. have you noticed how angry people are when they talk? this gentleman hasn't 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. that's all i can say about it, because i probably got my line bugged and they'll probably be knocking on my door. >> if this weren't about the clintons, this wouldn't be a case? >> actually, it's 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 wasn't 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. she's 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, i'm not against that, as long as the fbi is doing their job, there's no reason to break into people's houses and confront them. in a case like this, the fbi finds 20 people who are involved

in the case. they'd never go to their office. they go to their homes and say, i'm john smith from the fbi, we talk to you? most people don't want to say no. but that's not happened once in this case with hillary clinton. and the reason, she's being given special treatment. but in one sense, that's okay. you don't 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, they're treating her just like they would treat anybody else, except they're not knocking down people's 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 there's 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 you're 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 -- i'm trying to remember the first part. the first part is over-classification. there's some over-classification in the government. that's fairly obvious. anyone who's lived in this town knows that over-classification is a problem. however, in the situation we're talking about here, we're not talking about over-classification. that's a post hoc argument that's been made by the secretary and her defenders. we're talking about, let me give aun example. there are 25 e-mails which have been taken off the secretary's 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. that's about classification and the nature of the information that's inside that particular. so this case is not about over-classification. some of mrs. clinton's defenders have raised the issue of over-classification as kind of a distraction, and it's an interesting thought, but it has nothing to do with her server.

she's 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 that's the standard that's used. as far as anything else, at this point, believe me, over-classification is not her problem. >> lead editorial, usa today, clinton's private e-mail set-up 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. >> that's correct. as i said, at the beginning of this, why was the server put in chappaqua?

there were no records on that account. here's how we know that. when people filed freedom of information requests, they got back a no-records response. think about this, no records for the secretary of state on any e-mail account in the state department. alarm bells should be going off everywhere inside the state department and yet they didn't. 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 e-mails 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 didn't they tell the court that they knew where the records were, while the state department was saying it didn't 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. that's why they'll 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 wide-ranging, right-wing, radical jurist. he's deeply offended that the

freedom of information act, which is designed to say, i want to know what's going on as a citizen, if you as a journalist want to find out, if the press wants to find out, they're entitled to file a request and the government has a legal duty to respond honestly and produce the records. if they don't produce the records, they have a duty to say why. the state department here said, we don't have any records. of course they didn't. 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. i've got a couple things i'd 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 haven't found out who cheney met with way back in 2001 for energy? we weren't 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. >> i'm 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. what's interesting, i've 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 didn't 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 you're a prosecutor, it doesn't matter who somebody's political party is. but i understand the lady's question. you know, people are entitled to feel what they want to feel. what matters are the facts. what's at issue here is not what i think. it's what the fbi thinks.

there's a grand jury for a reason. it's not because the fbi is a tool of the republican party. some of hillary's 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. he's a former fbi agent during the clinton administration. so all of these wild allegations, they're wonderful, i love it, it's part of the political process and i think it's 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 pro-clinton super pac, has an opposing view op-ed in the usa today paper. this is not a scandal, he writes. there was no security breach of secretary clinton's e-mail or server. secretary clinton has acknowledged that the decision to set up her e-mail 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 work-related e-mails public. >> well, mr. brock is a famous partisan, who supports the do so. although i think he's wrong in so many places, it's 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 e-mail for mrs. clinton and her staff and have all government information go through it. the rest of it doesn't make any difference, what she's agreed to or wants to have released, it's not her property. e-mails belong to the united states government. even the ones she said are personal, that's not her property. that belongs to the united states government. the fbi is investigating what was deleted because it's a crime to delete information from a server when it has government information on it.

i welcome mr. brock's op-ed 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 he's only being funded by his law firm and he snidely made a comment but not george soros. here's 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 didn't 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 here's 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 woman's husband was president of the united states -- >> david, we'll revisit that. what about secretary rice and secretary powell, who also used personal e-mail? >> well, here's 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 e-mail. they admit they shouldn't have done that.

and ash carter admits he was using his private e-mail almost entirely for his dod communications. and he realizes that was a big mistake when all this exploded. mrs. clinton's case is entirely different from secretary powell, albright. they didn't have a private server, whether it's 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, wasn't 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 it's a government server, anything she put on it should

be -- the government should be able to take and use it in an investigation. i don't know who helped her set this up from the top down, but it's going to point to people and i don't know if people are going to bail on her, or they're 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 that's truth, they're going to hang her for it, and i hope they do. >> that's 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. that's 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 third-parties that the clintons own. >> another tweet, please ask joe digenova to discuss the specifics of retroactive classification. >> what happens is, something is found and doesn't have a classification mark on it. if it's something serious, they'll look at it, and if it comes from a person senior enough in government, they'll 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 it's classified. it just means that something wasn't marked at the time. it doesn't mean that it wasn't classified. classified information is classified from the fomoment it created, whether it's marked or not. when it's marked later, that's 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 clinton's passport book. you appeared on fox news, doing the monica lewinsky -- >> no, i wasn't 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 won't be indicted for anything, joe. will you finally be man enough to apologize? >> what we're doing, we're doing legal commentary on something that the fbi is investigating. it is now beyond any doubt that there's a criminal investigation of the conduct of mrs. clinton in placing a private server in her home. there's 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 don't think they don't and violate the law, they should be held accountable. >> another tweet. was general petraeus covered under the whistle-blower law? >> not to my knowledge. nothing that he did or said would have had any basis whatsoever in being a whistle-blower. he was someone who had classified information, knew it was classified, and had a duty to protect it, and he didn't protect it. so therefore, his prosecution, i think, was justified. >> another tweet for you. sounds like of all the secretaries, hrc's server was more secure than gmail, yahoo server? >> i don't 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 doesn't have government encryption because it wasn't a government server. i think opm and the compromise, i'm one of the people whose information was compromised at opm because of the security clearance. they got my information. they got my wife's information. so we believe in strong servers with great security systems and mrs. clinton's server didn't have any of that regrettably. >> as a lawyer, former federal prosecutor, i'm 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, he's 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 morning's "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