thanks for watching this special edition of the factor. i'm jesse waters. bill o'reilly will be back on monday. and president remember, the spin stops here, because we're definitely looking out for you. >> new problems for the democratic presidential front runner. welcome to a "kelly file" special. i'm in for megyn kelly. tonight we take a look at the political and legal fallout from the controversy. first, finding e-mails from hillary clinton's private server were class bid at that time they were sent and received when she was secretary of state. we know this based on markings and codes you can find on the e-mails as well as there is foreign government involvement

which is always presumed classified this, is certainly a blow to mrs. clinton's recent defense that e-mails were not marked classified at that time. listen. >> first, let me say i'm confident i never sent or received information that was classified at that time it was sent or received. >> i did not receive or send anything classified. >> our chief intelligence correspondent explains from this report in washington. >> there is more evidence of classified evidence on mrs. clinton's server. this e-mail with a b 1 code includes intelligence from britain's foreign security, his aide emphasized he only wants the secretary to see this note. other expert saying it was

classified from the moment mrs. clinton received it. >> it's classified in and off itself. >> this evidence as mrs. clinton's team posted a video taking shots at her critics and pulls selected details from a fox news report to make the case. >> one of the e-mails the inspector general flagged as phone shally containing classified information at that time sent is one that is marked unclassified. >> he admits the inspector general concluded the 2011 e-mail that triggered the fbi probe contained classified information when sent, and shows an unclassified marking when sent to capitol hill, not crafted four years ago. >> the comments are false and

misleading. >> they called a press conference saying if they were sent, then their computers ought to be searched as well. >> thank you, this follows a week of damaging headlines for secretary clinton. the washington post reported 300 clinton e-mails have been flagged to determine if they contained classified information. the next day, nbc saying an attempt was made to wipe hillary clinton's server clean. that day, hillary clinton would hold a new conference, pushing back against questions about her private server and getting into a heated exchange with fox news's ed henry. watch. >> i know there is a certain level of sort of anxiety or interest in this. but the facts are the facts. >> did you hear the inspector general say there are hundreds? >> but ed, you're not listening to me. ed, if it were -- if it were a

government account, they'd be saying the same thing. the facts -- >> either way. >> no. no. well, look. this -- >> that information got out. >> this is a, first of all that is not in any way agreed upon. state department disagrees. that happens all the time in these efforts say what can go out and what can't go out. that is a part of the ordinary process. everybody is acting like this is a first time this ever happened. it happens all the time. >> you're saying the fbi believes you tried to wipe the entire source. did you try to wipe the source? >> my personal e-mails are my personal business. right? so i, we went through a painstaking process and turned over 55,000 pages of anything we thought could be work related. under the law that decision is made by the official.

that is all i can say. >> did you wipe the whole server? >> i have no idea. that is why we turned it over. >> did you wipe the server? >> well, like with a cloth? >> i don't know. you know how it works. >> i don't know how it works at all. >> joining me now is daily mail political editor. what do you make of this qc? you can joke about snapchat. do you think that is going to work in diffusing? >> it won't in the short term. this is a long game hillary clinton's playing. i think right now she's trying to talk to democrats and she's trying to keep it in the fold. communicating this is not a good field this, is trouble worthy. to everybody else that decided she's a liar or crook or just a garden variety politician, of course, you don't crack jokes

about espionage or classified documents. you don't crack jokes about state secrets if you want to keep your job. anybody at lower levels would find themselves looking for work if this material was seen. >> and every day, there is something new. it's not from right wing bloggers or people that aren't respected or aren't legitimate sources. we're talking about inspectors general, we're talking about reuters saying they tracked 33 e-mails they described as close born classified meaning by it's existence of what it was, it was classified. >> that is true. there are some types of materials that are classified as soon as coming into existence. if you're talking to a foreign minister friend. and you're secretary of state. if that is a state secret it's top secret the money -- minute

it enters your ear. mrs. clinton's latest explanation is well, none of these were marked classified when they turned up on my e-mail server. it shouldn't matter and legally it doesn't matter. something is classified it's classified whether there is a stamp on it. mrs. clinton was, at the time she was secretary of state, one of a small number of government officials who president obama empowered to decide what is top secret in december, 2009, he issued an order to say this is top secret and she was one of them. she should know if it's top secret. cease the secretary of state. >> years ago she put out a cable in which she said to all state department employees warning about hackers and private security issues avoid conducting

official department business on your personal e-mail accounts but they couldn't find a dot gov for her, so was she always trading classified information? hard copy? phone calls? >> generally speaking it's hard copy. if she's trying to 30,000 million countries she's visiting as secretary of state, her aides could have hard copies of things. whether they're e-mail addresses or hardened systems where that information can reside. so yes. of course, she'd have it encr t encrypt encrypted. >> we're told she didn't have a state issued blackberry. >> it was her personal one. >> how do we know information was safe? >> we don't.

that is the point. she co-mingled her personal stuff and office stuff. okay? she co-mingled with her personal stuff and decided i know best. i'm a clinton. i'm going to have this on my house on a device i own. government can't have it or look at it. now people admit she doesn't think it through very much. and americans are going to find themselves with the question, do we want a president who doesn't think these things through very well? hillary clinton was famously with the 3:00 a.m. phone call commercial. do you want a president thinking things through at 3:00 a.m. in the morning? these bigger questions are to come up and it's not going away. >> we're going to talk about how it's affecting her poll numbers later on in the show. thank you for being on the show. >> thank you for having me.

>> still to come, pressure is growing on clinton's legal team after a judge declared her use of server was a quote, violation of government policy. up next, a look at how big clinton's mounting legal troubles really are. >> i am confident i never sent, nor received information that was classified at that time it was sent or received. ♪ it's a calling.

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for any government employee, it is that government employees responsibility to determine what is personal and work related. i went above and beyond what i was requested to do. i fully complied with every rule. >> one federal judge doesn't think so. that was hillary clinton back in march. a federal judge appointed by her husband, then president bill clinton said she did break policy, saying this about clinton, quote, we won't be here today if this employee had followed policy. with us today is the author injustice, good to see you tonight. >> hi, shannon. >> i want to ask you about this

information that jake sullivan and cheryl mills will be interviewed by the benghazi committee. what do you make of the news? >> it means benghazi committee is doing a good job. and they're going to leave no stone unturned to figure out what might be on that server. why is she defending this so vigorously? maybe that server has something to do with it. >> there are a number of different legal problems she can be facing based on federal statute. some involve gross negligence. some of them her committing an act. do you think could any court go after her for tougher, felony type offenses if there is no proof she knowingly did anything wrong with this information? >> people have gone to jail for doing less than hillary has done

here. there is a number of federal statutes implicated. remember the dame john deutsch? he was the head of the cia during her husband's presidency. he was convicted of keeping classified information on computers where they weren't allowed to be kept. he was convicted of that. her husband pardoned him. but it's an example. and your viewers can look up a statute. they can read it for themselves. so this is a criminal law. it's hard to understand how she could not have violated this law. >> and they're responsive in trying to get ahead of the stuff saying nothing has been done wrong, i'm going through statement by statement and saying it's an accurate. we have inspectors general who referred this to the justice

department. for saying we think this is worth looking into. we have had the inspector general say there are e-mails that do have classified information when sent or received by her. i know you've been a critic of the doj. do you have qualms about this? >> there are so many people that have to sign off. you'll have the public integrity process. when you leave the state department have you to sign a form saying you didn't take anything or leave anything where it's not supposed to be. it's under penalty of perjury. if she signed this form, i don't

understand how she didn't commit a felony. >> os 109? the kelly file put in a request for the freedom of information request about that. they got acknowledgement it was received but nothing since then. we heard the state department couldn't find a record she ever signed it so crazy like a fox? >> yes. remember during the bush administration? there was a fellow by the name of scott block who wiped his hard drive like hillary claims to have done to his server. he went to jail for destruction of information that belonged to the federal government. wruf got scott block, you've got general petraeus and john

deutchsh. >> everybody remember 1997? the clintons do what the clintons do. they're going to come up with classified information but the bottom line is that she kept classified information at her house in chappa qua. >> and innocent until proven guilty, we'll see if there are formal changes. good to see you thank you. >> the fallout from the clinton e-mail server scandal seems to be far from over. chris stierwalt is here with more and shocking poll numbers,

next. >> it has nothing to do with me. it's the process by which the government and sometimes, in disagreement between various agencies of the government make decisions about what can, and cannot be disclosed. so i'm very comfortable this will be resolved and the american people will have plenty of time to figure it out. music ♪ are you ready to go grab life by the gills. would you like to make an investment you know will pay off? then you belong at bass pro shops. where great gear, great prices and the great outdoors all meet up.

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scandal but may not be laughing now. a new poll showing clinton may be more disliked than she has been in decades. as a new survey from cnn shows her unfavoribility rating is at 53%, a number clinton has seen just one other times. our next guest says numbers like that could suggest democrats could soon be having second thoughts. chris, you know the landscape for decades. and well beyond, before you were born. you know all of the polls of all time. how bad is this for hillary? >> well, i remember all of hillary clinton's polling because i was a big dork in high school. i could tell you, i would say catastrophic except that the democrats don't have an alternative. she's dragging through this and

punishing her party. i would say they're having third and fourth thoughts and saying the vice president of the united states? what about that guy? they're looking behind every truth. so the answer is no, they've got to eat it. >> okay alex p. keaton. we're dating ourselves. okay. so low point for her now, not a good time to have your worst ratings ever when running for president. our polling shows 58% of people think she lied about what happened with the e-mails. there are a lot of negatives for her now. where does she go for anything positive? >> there is not going to be anything positive because she made a choice, a decision in 2009 when she's going to have this home brew e-mail disaster. she decided the privacy was work the risk. then, busted on it, she made

another decision, total brazen, wipe the server, you can just go away. we don't care. and we wiped it. it's gone. she takes this absolutely absurd position, then, the fbi says tada this, is not over. so as long as that is cooking her prior decision in the spring time to be so brazen is going to hurt and hurt and hurt it's it's her own doing. >> that leaves us to democratic socialist, bernie sanders turning out crowds of almost 30,000 people. do you think he has a chance to be the nominee? or does someone like vice president joe biden who has very positive pollings, does it cause a fracture in the democratic field where it looked like this is potentially going to be a sure thing for her? >> the university with a fine polling institute did a swing state survey.

florida, ohio, pennsylvania, they said who do you trust? and ask who do you find trust worthy? hillary clinton was, i believe, i don't know how trump rated by hillary clinton was the lowest on trust worthiness. she was a tire fire of trust. then, what do you think of joe biden? twice as good. he doubled her up. she had, to put it in a simple way, in the three biggest swing states, only one in three voters found her trust worthy. what that says to joe biden, twice as good, is why not? i got nothing else going on. rock and roll it. >> do you think he gets in? what does your gut say? knowing all you know about the political world? what to you think? >> my gut says milk shakes are delicious, but says joe biden is not crazy.

the consequences of a loss aren't just a third loss but miss out on a brief window of making a lot of do-ri-me he needs. he's got a family to think about and he's note a rich guy. if there is anything joe biden has been, it's not rip it or rip it. >> milk shakes are the reason we have guts. >> accurate. >> have a great weekend. >> you too. >> new polls show voters maying turning on hillary clinton, a look at attacks she's been seeing from the media suggests maybe her media allies are jumping ship as well. up next, left wing journalists seem to be losing their faith. >> during her news conference? >> it was terrible. >> the problem is that there is not a good answer. right? does anyone have a good answer?

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live from america's news headquarters, wildfires in washington state are so out of control right now, authorities say they have no idea how many homes are lost. the group of fire that's killed three firefighters earlier this week has blown up, growing more than 100 square miles in a day to 250 right now. president obama signing an emergency declaration authorizing federal help. >> un secretary general expressing concern over rising tensions between north korea and south korea. he's encouraging both sides to engage in peace talks. the south retaliated with dozens of rounds, north korea

threatening further action until south ends loud speaker broadcasts near the border. now back to "the kelly file". voters may not be the only ones turning on hillary clinton. the former secretary of state finds herself fielding criticism from some liberal corners of the media. some are just confused as how she's defending herself, others are beginning to admit she's in a bad spot and could soon pay the price. >> unfortunately, during her news conference? >> just terrible. >> the problem is that there is not a good answer. right? does anyone have a good answer? >> there is not a good answer. >> the question is did she turn over all of her federal records to the federal government after she left? she claims she did. the fbi is talking about going back and trying to investigate it and recover some of the

e-mails. . >> i know here is what is going to happen. the fbi is looking into this. the same person who prosecuted petraeus is looking into this. the same person who represented petraeus is now representing hillary clinton. >> howard kirk, rick laurie, welcome. >> hi, there. >> hi. >> rick, i'll start with you. you think hillary isn't one of those on the left who had a super cozy relationship with the media. >> she's a very cautious person, very guarded with the press and hasn't established relationships. an there is history, when you spend years defending your husband from bimbo eruptions you have a combative history with

the media. and now, on top of this, shannon millen can look and say that was a bad press conference and no one believes her. >> when you see them, we think about using robinson. when you see them saying she's got problems, i mine, is it that there is just so much information that continues to trickle out that they can can't pretend like it's not an issue? >> hillary clinton was never a wild favorite of the left wing press, but writing she's insulting our intelligence with her mishandling and answers of the e-mail debacle, that tells you she lost the confidence of some liberal commpress.

all of this created a bad storm from hillary clinton's point of view of negative coverage. >> how do you think she's managing that? now that it's come to fruition? i thought she, along with her husband has been in politics for decades. i think of her as very smart and a more disciplined person, she walks away and throws up her hands saying nobody is talking about this but you guys it seemed undiscipline. she lost some of the campaign discipline you've got to have. >> she let her irritation go. you look the first press conference when this broke, she couldn't hide her contempt for the press and for the questions she was being asked. if you look at the eugene robinson column there is a pleading element to it.

just come clean. just tell us the truth. just say you wanted to control and hide this information. but that is one thing she can't say. >> howard, she hasn't done a lot of marketing, national media things. we're told as evidence she's going to do more media she's going to be on "ellen" coming up when it relaunches. do you think she has to sit down with heavy hitters and kind of try to reestablish a relationship or credibility with the press? instead of being so combative? >> she's been taking more questions on the trail. it was two months ago her communications director told me she's going to do more national interviews. since that time, she's done two. one with cnn and one with uni vision. trump has been doing 66 national television interviews to hillary clinton's two. what happens is that appreciate builds up. she's not out there with other

messages so e-mails tend to dominate. i think she's pretty good interviews she can't seem to overcome caution and rules that refer to and being more openly accessible. >> thinking back to just weeks ago, she's walking in a parade and there are photos of press members being held in a coraled area, that doesn't help her either. >> that sort of encapsulated the control she wants to have over the media. when you take a look at trump, 66 interviews, frankly, it feels like more. trump is out there and just -- you can ask him anything and he just speaks off the cuff and it's natural. hillary is the opposite. she's so controlled and this political moment where

authenticity and sincerity is important. bernie sanders has it. trump has it. she at all. >> the press wants a democratic race. so there is pressure to stop what many thought was going to be a cornation. >> coming up, the comparisons some are making between hillary clinton, richard nixon and the lies that derailed his presidentsy. >> i have never obstructed justice. i think, so, i can say in my years in public life, that i welcome this kind of examination because people have got to know whether or not their president is a crook. well i'm not a crook. but grandma, mommy says we don't have to wad to get clean.

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hillary clinton's server scandal is inviting unflatering comparisons to one of washington's most notorious scandals of all time, water gate under president richard nixon. >> at every stage, the clinton campaign dismissed her destruction of e-mails, but now, comparisons from water gate are coming from figures not typically associated with a vast

right wing conspiracy. bob woodward saying the clinton e-mails remind him of the nixon days. >> thousands of hours of secretly recorded conversations that nixon thought were hers, his, he's not going to get them? hillary clinton took that position initially. i'm not turning this over. there is going to be no cooperation. >> cartoonists found the comparison irresistible. but his two victories on a historic landslide offer the only modern precedent for what she's trying to accomplish now, trying to capture the white house after a highly polarizing

20 year career on the national stage. evan thomas is the author of the biography "being nixon" and he says both suffered if a mistaken assurance they wouldn't being enmeshed in scandal. >> we know nixon was trying to cover up a crime. we don't know that about mrs. clinton. >> of the 3700 hours of nixon tapes, investigators discovered 18 and a half minutes, or a tiny fraction had been erased by a culprit never identified. of the 63,000 e-mails crossing hillary clinton's server, she'd admitted to erasing roughly 48% of the vo of the total. >> now, we turn to alan combs. you don't want to be linked to water gate or nixon. >> there is no comparison here.

>> why not? >> water gate was based on a break in and secret tapes, nixon secretly taping people, saying crazy things on the tapes, then trying to obscure or obstruct an fbi investigation. >> there is an fbi investigation now. >> well -- yes but nothing like what they're looking into at water gate. no obstruction of justice. no burglary. >> but there is phone shall federal laws. >> those talking about it? >> michael mccazy. he's no slouch and saying if she's erasing to mess with an investigation, that is a legitimate legal issue. >> i'm glad there is an fbi investigation. if cleared, will that silence her critics? i think that there should be an fbi investigation.

lets get to the bottom of it. if she's cleared will they shut up? >> we'll see. how long do you think it will take? >> we'll see. we have to identify why some are erased. why there was an empty server. i'd like her to answer those questions so we can get beyond this. she's the only candidate that made policy decisions. let's talk about that rather than e-mails and servers. >> her people said they're going to have an educational process to let people know what's happening with the e-mails and what is not happening with the e-mails and servers and they say they need to clarify for people. >> so it can go away. clintons have never been that great at handling scandal. >> so when you're in so many, it's hard to know what the common thread is. >> innocent until proven guilt eye. as a lawyer here, i will say

that. >> always, always. >> so we're going to watch and see where this is going. >> so let them investigate. let the chips fall where they may. >> is this good for joe biden or bernie sanders? >> it's good to be everybody. look. i think it's good hillary clinton has competition. if biden jumps in, that is great. if she wins with all of the competition, they can save the coronation. >> dnc has limited debate. is this an opportunity for her to clarify? >> of course, when she's facing other candidates she's going to have to answer these questions. you don't need as many debates as on the right because there are aren't 17,000 people. >> you think about this. at these dnc debates, if you have people following at 1%, 2%, 3%, they have nothing to lose.

what do you think? >> well. >> we'll watch together. we'll bring popcorn. >> i'll bring beverage. >> it's a date. >> i'm putting that on my calendar. >> good the g.o.p. have a problem whit comes to women? what will it take to win the key demographic of voters in this election? >> when i talk about womens' opportunities and opportunities and equal pay and health care, some republicans accuse me of playing the gender card. well, if that is playing the gender card to try to make sure half of the population is treated right,in. staying in rhythm...

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they brag about slashing women's health care funding. they say they would force women who have been raped to carry their rapist's child. and we don't hear any of them supporting raising the minimum wage, paid leave for new parents. access to quality child care. equal pay for women or anything else that will help to you know, give women a chance to get ahead. >> that was hillary clinton going on the offense against her 2016 republican opponents. but as a possible first female presidential nominee hillary clinton may present a problem for the gop. how to attack clinton without angering the female voters they need to vote republican. good to see you. >> thank you for having me, shannon. >> all right, this is an interesting dynamic, last time it was the first black president, now potentially the

first female president. so how does the gop work on that angle without offending women who may just vote for her because they say say they want the first woman to be a president. >> health care and the liberal media think that women only care about birth control. they make up 53% of the work force. when i go into the voting booth, the big issue i'm thinking about is foreign policy, other items to talk about. it is very low hanging, you just have to hit hillary on anything other than reproductive rates. during the break we talked about these issues. right now she is squirming. this e-mail scandal, i know allen disagreed. i think you just have to hit her at basically any else other than birth control. >> it is interesting to have carly fiorina on the other side, the only female running on the other side.

but she is able to talk to hillary clinton on substantive issues, without having a knee-jerk reaction, oh, this is a female issue. >> there is nothing i want more on planet earth than the hillary-carly debates one-on-one, she can't use it on her, and say republicans don't care about women. republicans will leave you high and dry especially when you talk to another female candidate. that is why carly fiorina is speaking to me in a way i didn't expect. >> she mentioned so many things like minimum wage and all sorts of other issues that actually she was not correct on some of what she said because there are people on the gop side of the aisle talking about those kind of things. even if it's not popular, rick santorum is talking about the minimum wage issue. even if it's not popular. but her base is not going to know that, though. >> no, her base will not know

that, they know the past, since 1988, is the last time the republicans have won the women's vote, that was a long time ago. a lot has to do with the liberal spin, she is jumping to the talking points which get picked up and are effective. i am a millennial, when todd aiken says the things he did on tv, in the last election cycle, it is very hard to combat. i hope young women see past it. again, carly fiorina is a very good weapon against that. >> i know you said we probably should not talk about reproductive issues -- >> we can, but i get offended, i'm a pro-life woman. there are a lot more things to talk about. >> what do you think about the planned parenthood and doctors, the compromising situation, maybe not necessarily illegal but in a gray area that does not look good for them when you see the graphic nature of it. she initially said she found it

disturbing and now says she stands with planned parenthood. >> well, she is flip-flopping as the clintons always do. the videos are horrific, you can't think anything other than they are horrific. and maybe legal action should take place. >> megan, always good to see you. >> good to see you, too. >> we'll be right back on "the kelly file." where great gear, great prices and the great outdoors all meet up. have you ever thought, "i could never do that"?

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>> so what do you think? is hillary clinton's campaign full of controversy? go to the kelly file. i'm shannon bream. this is "the kelly file." the hurricane is now hitting in south florida. a category 1 storm makin the hurricane is now hitting in south florida. a category 1 storm making landfall just south of ft. lauderdale. shepard, the wind has picked up considerably in the last 20 minutes. you can't even turn your face really in this direction because the wind and sand is blowing pretty hard. >> the better model of we're in pretty good agreement shifting more towards southeast louisiana and mississippi. >> out across areas towards new orleans you need to be watching this cse