'The Kelly File' files FOIA request for key State Dept. form in Clinton email controversy

Matthew Whitaker reacts to the controversy


This is a rush transcript from "The Kelly File," March 13, 2015. This copy may not be in its final form and may be updated.

MEGYN KELLY, HOST: Breaking tonight. "The Kelly File" taking matters into our own hands to get to the bottom of the growing Hillary Clinton email scandal.

Welcome to "The Kelly File," everyone, I'm Megyn Kelly.

Two nights ago we told you about the one critical document that may prove that Hillary Clinton possibly committed a crime, and not just any crime but possibly a felony. It is called an OF-109 form. Every departing State Department employee must sign it certifying that they have surrendered all official documents, classified and unclassified, that they acquired while at state.  They have to give them back to the agency before they leave. We know that Hillary Clinton must have been asked to do that. We in fact however we know she did not return her classified and unclassified documents. She kept them on her personal server for some two years after she stepped down as secretary of state.

So two nights ago we asked the State Department, did Hillary Clinton sign the OF-109 that would require her to certify under penalties of perjury that she had returned all these documents. We received no answer. The next day we asked again. Again, we received no answer. Then today more of the same. Now with the Associated Press joining in.   


UNIDENTIFIED MAN: You were asked if you knew whether Secretary Clinton signed this separation statement.  

JEN PSAKI, STATE DEPARTMENT SPOKESWOMAN: I don't have an update on that.  

UNIDENTIFIED MAN: You expect to be able to answer that?

PSAKI: I hope to, yes.  


KELLY: So, where does that leave us?

Today, "The Kelly File" filed a Freedom of Information Act request to compel the State Department to provide the answers to which the American people are entitled.

Lis Wiehl, a former federal prosecutor and Fox News legal analyst. We did that and we intentionally kept it very limited.  

LIS WIEHL, FOX NEWS LEGAL ANALYST: Right. One paragraph.  

KELLY: Didn't ask for a huge sea of documents. We want in that one request one document.  

WIEHL: That's right.  

KELLY: Produce the OF-109 if it exists. And now the ball's in state's court and what happens.  

WIEHL: State department has 20 to 30 days, they can take up to 30 days to even respond to say, yes, we have the document, or we don't. They can now look at nine exemptions that they want you to say, you know, we have the document that may be exempted of these nine exemptions. I looked at those nine exemptions, I cannot see any way that they can argue that they would be. But the point is that you I think you are making is that they have to tell us within 30 days whether that document exists or not.  

KELLY: Uh-huh.  

WIEHL: Did she sign that document?

KELLY: Right.  

WIEHL: If they have it, then she must have signed it. If she signed it and did not turn over that information that she was required to do, then you're looking at an offense.  

KELLY: That's right. So, this should not be some long protracted litigation --

WIEHL: It should not be.

KELLY: -- where we're trying to get the document produced, they won't give it to us. We really just want to know whether -- do you have it?


WIEHL: What they can do is come back and say we're reviewing whether it goes in one of these nine exemptions. And at that point then you'd be looking at going to federal court to compel an answer from the State Department.  

KELLY: Which we are prepared to do.  

WIEHL: Absolutely. Within 30 days.  

KELLY: And they will have a tough time looking at a federal judge and saying we can't even tell them whether it exists.  

WIEHL: Exactly. Exactly. That would be very problematic. But it could take some time. I mean, stall tactics, you know, wouldn't be the first time stall tactics were to be deployed. But even if they did that, if the State Department were to come back within that 30-day parameter and say, we can't even tell whether it exists, I mean, doesn't that tell you everything?

KELLY: But can I tell you? I actually believe Jen Psaki will make a good faith effort to try to find it.

WIEHL: Right. Right.

KELLY: The State Department records are a mess from what they say, but that's a hard copy document. It's not electronic.

WIEHL: Right.

KELLY: It would absolutely be kept for litigation and other purposes of potential crime being committed.

WIEHL: Exactly.  

KELLY: And so it won't be that hard to find. I expect her to answer.  

WIEHL: And then we're also looking on 1,001 violations, you know, that's lying during an investigation. So, if the Feds actually got involved after you try to take them to court trying to compel those subpoena, then the Feds will get involved. They're looking at a whole parameter --

KELLY: It's too big a deal for them to ignore.

WIEHL: Exactly, they can't ignore it.  

KELLY: Lis Wiehl, great to see you.  

WIEHL: Thanks, Megyn.  

KELLY: Well, in the wake of this email controversy there's a new look at what was going on at the Clinton Foundation while Hillary Clinton was Secretary of State. We know that that fund took in hundreds of millions of dollars, some of it coming from foreign donors. And our next guest is trying to find out exactly what was going on.

Matt Whitaker is a former U.S. attorney and executive director of the Foundation for Accountability and Civic Trust, a self-described watchdog organization. Matt, thank you for being here.


KELLY: Ron Fournier had a column this week basically saying, follow the money, that he had been told by a close Clinton confidant that that's what she need to do or a source close to the Clinton's, follow the money to figure out why there's an email controversy, why they're missing in the first place. That's what you're trying to do.

WHITAKER: Right. We know that the Clinton Foundation has disclosed most of their donors. We know that while Secretary Clinton was at the State Department she -- the foundation raised millions of dollars from foreign sources including $500,000 from the country of Algeria that was in contravention of the agreement she had with the State Department not to raise foreign money in the Clinton Foundation. And then we know that since she left the Department of State that they raised almost a quarter of a billion dollars, a third of the million-dollar donors to the foundation are foreign sources. And this raises a lot of concerns as to whether that money or any of it was solicited by her or anyone on her staff while she was secretary of state.  

KELLY: Well, the thing is that this staff, you know, that surrounded her while she was at state, they're also very relevant. Because if they were not on the servers, then we also don't have their emails.  They also -- we have reason to believe there's been reporting this week that her top staffers were also on the Clinton's email server including a guy by the last name of Cheng, potentially. Tell us about this guy.  

WHITAKER: Well, Dennis Cheng, and we have a pending FOIA request with the State Department to get some emails that he may be involved in. But he was with the Clinton Foundation before he went to the State Department as one of the protocol people. Then he went back to the foundation, was in charge of their fundraising of that quarter of a billion dollars I mentioned.  

KELLY: So far that's all kosher. There's nothing particularly unusual or wrong with that.  

WHITAKER: Well, and now he's left the foundation to join this presidential campaign it appears.  

KELLY: So but what's the problem? Because I get that they put Dennis Cheng in this position, had a protocol. And it's not like the movie with Goldie Hawn as it turns out. Remember that? Anyway, it's not like that.

WHITAKER: I do. I do.

KELLY: Actually, it's an important position where you get exposed to people from other countries and very often they have a lot of money and they had a lot of connections and so on. So she puts him in that position and then she puts him in charge of money raising at the Clinton Foundation.  And now he's going to be in charge of money raising for her campaign. And what's the allegation? That now that what?

WHITAKER: Well, I mean, we want to see if any of the money while he was at the State Department was solicited for the Clinton Foundation. And he would be a key actor in that.  

KELLY: Which would have been a no-no.  

WHITAKER: Right. It would have been. And I understand that I want to avoid confirmation bias which is sort of making allegations before we have the facts. And until we see his correspondence while at the State Department and the interaction between him and the Clinton Foundation, then we really won't know. But he is going to be a pivotal actor in those transactions.  

KELLY: Uh-huh. We'll continue to follow your FOIA request and, you know, more importantly in my view, mine.

WHITAKER: Yes. Right. I agree. Yours is more important.  

KELLY: Great to see you, Matt. Thank you for being here.

WHITAKER: Thank you.  

KELLY: We appreciate it. And, you know, the State Department can put our FOIA request to bed tonight by calling us up and telling us we found it, we have the document. If they have that document and she signed it, it is officially her problem. If they didn't have the document and she didn't sign it, it is officially their problem.

Content and Programming Copyright 2015 Fox News Network, LLC. ALL RIGHTS RESERVED. Copyright 2015 CQ-Roll Call, Inc. All materials herein are protected by United States copyright law and may not be reproduced, distributed, transmitted, displayed, published or broadcast without the prior written permission of CQ-Roll Call. You may not alter or remove any trademark, copyright or other notice from copies of the content.