Why Team Clinton is changing the email scandal story

Judge Andrew Napolitano weighs in


This is a rush transcript from "The Kelly File," March 16, 2015. This copy may not be in its final form and may be updated.

MEGYN KELLY, HOST: Judge Andrew Napolitano was our Fox News senior judicial analyst. And they are still stonewalling. They either don't know whether she signed that OF-109 or they know and won't tell us. But somebody at state is putting poor Jen Psaki in a terrible position.  

JUDGE ANDREW NAPOLITANO, FOX NEWS SENIOR JUDICIAL ANALYST: Well, absolutely. I mean, if Mrs. Clinton did not sign that document, then she stole federal documents from the federal government. If she did sign that document, she committed perjury. Because the document says I certify that I have surrendered everything to you.

Look, the premise of the law is, the government keeps the documents while you're in office. When you leave you tell the government which ones you want. The government looks at them and decides which ones you can have, presumably personal ones. She denied the government the ability to do that and now she keeps changing her story.  

KELLY: And it's a very simple question. When Jen Psaki was asked today, did you look, there's got to be a file on all the state department employees. She said, well, you know, she's a top official. All the more reason why it would be easy to find. There's going to be a very narrow file with respect to all former secretaries and just open it up and look.  You can't tell me they don't know.  

NAPOLITANO: Look, before she leaves the building on her last day in office she's supposed to sign that document. And an official at the State Department is supposed to sign another document saying, I certify as, and fills in his or her title, that the Secretary of State left all of her documents with me. Where's that file? Where's that document?

KELLY: Guess what? We FOIAed that one too. We've asked for two documents, very simple, yes or no do they exist? That is simple. Who at State is making this call? That's the question we need to find out now.  Because it's not Jen Psaki.  

NAPOLITANO: Right. This is a potential catastrophe for her. It may even involve Secretary of State Kerry whose job it is to assure that his predecessor's documents are there at the State Department and who we now know he knows even though he's in Iran negotiating God only knows what, we now know that he knows that her documents are not --

KELLY: That is a two-second order. Find the document, answer the question yes or no. In the meantime her other story appears to be falling apart, why she did this in the first place. She came out and said it was for convenience which a lot of people doubted. She's a Clinton --

NAPOLITANO: She didn't want to carry two blackberries with her even though we know during much of her professional life she carried two.  

KELLY: Right. The Clintons have been through a lot of investigations, so a lot people had questions about whether this convenience excuse was real. Listen to what she said last week and listen to what Carville said on Sunday.


HILLARY CLINTON, FORMER SECRETARY OF STATE: I opted for convenience to use my personal email account because I thought it would be easier to carry just one device.

JAMES CARVILLE, POLITICAL COMMENTATOR: I suspect she didn't want Louis Gohmert to rifling through her emails which seems to me to be a kind of reasonable position for someone to take.  


NAPOLITANO: Well, now, that reference to Louis Gohmert rifling through her emails as a reference to Congressional Oversight. Congressman Gohmert, a former judge, is on the House Committee to which the secretary of state reports in justifying her behavior.  

KELLY: She didn't want him rifling through.  

NAPOLITANO: Well, then she shouldn't have become the secretary of state.  

KELLY: Doesn't work that way.  

NAPOLITANO: So Jim Carville, who we know at one time worked here is apparently saying don't believe what she said last week. She was trying to frustrate Congress' lawful authority.  

KELLY: Right. Off script.

Last question, they originally said last week that the way they determined what they were going to delete was just some keyword searches and if it appeared to fall within that keyword search and sounded businessy, they produced it. And if they didn't, they just deleted it. In response to which everybody said, what?

NAPOLITANO: No one believes that.

KELLY: That's not OK. You can't just do a mass deletion because it didn't happen to have your key words. So, now, today is different.  

NAPOLITANO: The story today is that her legal team read every word of every one of the 32,000 emails that she decided to delete. That's not possible. But even if it were it's for the government to read.  

KELLY: Right.  

NAPOLITANO: Not for her own agents and lawyers loyal to her to do so.  

KELLY: That's the point. Now, don't get too caught up in whether she deleted it this way or she deleted it that way, the bottom line is, it wasn't her choice to make.

NAPOLITANO: Precisely.  

KELLY: And we'll see whether she certified otherwise in her OF-109.  Good to see you.  

NAPOLITANO: Good to see you, Megyn, always.

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