This is a rush transcript from "Special Report," August 13, 2015. This copy may not be in its final form and may be updated.
(BEGIN VIDEO CLIPS)
PETER HOEKSTRA, FORMER HOUSE INTELLIGENCE COMMITTEE CHAIRMAN: We're well engrained with how to use this information because it's classified top secret for a reason. Our enemies can use it against us. That is why the law is so clear and why this is so important. You don't get sloppy with top secret information.
JOHN KIRBY, STATE DEPARTMENT SPOKESMAN: I don't have any updates for you in terms of original sourcing on those e-mails.
UNIDENTIFIED REPORTER: Has the State Department been able to determine whether each of the four classified e-mails sent to Secretary Clinton's server originated within the State Department?
KIRBY: We have no indications that there were any, that there was at all any stripping of classification markings on these.
(END VIDEO CLIP)
BRET BAIER, ANCHOR: Well, the e-mail controversy investigation continues. Just to set the table very quickly again, in a look inside these e-mails, they took out of thousands and thousands they looked at 40 of them. Of them, four of them were found to have classified material, two of those were said to be top secret and also sensitive compartmented information, SCI. That is the highest classification. That is just a sample of all of the e-mails. Whether they were marked or not, that's the controversy now, but there's more to it as this investigation continues.
Let's bring in our panel and start there, syndicated columnist George Will, Judge Andrew Napolitano, Fox News senior judicial analyst, and Charles Lane opinion writer for The Washington Post. Judge, listen, there's all of this stuff about whether she sent or received and whether it was marked or not. The I.G. is saying it was there. If anybody else in government had this in their system, what would be happening?
JUDGE ANDREW NAPOLITANO, FOX NEWS SENIOR JUDICIAL ANALYST: They would be indicted for having failed properly to secure it. I mean, last month the justice department indicted a 22-year-old sailor for taking a selfie of himself in front of a sonar screen in a nuclear submarine and e-mailing it to his girlfriend. He's no more a spy than any of us at this table, but he's facing 20 years.
Mrs. Clinton is presumed to have known in the years that she was the secretary of state what is top secret and what is not. This particular document came from a satellite, and it was a satellite view of a foreign country, and it contained information, either e-mail or telephonic, that had been interrupted, that had been surveilled from a foreign country. How she could not know that that was top secret is beyond me. If somebody removed the top secret terminology on it, that person committed a felony. But she is presumed to know what is top secret whether it's stamped "top secret" or not.
BAIER: Through all this markings stuff, are we just chasing a rabbit down a hole here? I mean, isn't this investigation going to lead to something not good?
CHARLES LANE, THE WASHINGTON POST: Well, I think the judge put his finger on it, which is her defense is somebody else committed an offense, right? I mean, in other words, on her watch someone in the State Department people are inappropriately taking the labeling off. That's the best case scenario for her. So that means it's not a good case scenario.
Sorry to get into the politics of this for a minute, but they're getting worse and worse for Hillary Clinton. You now see front page stories in the Wall Street Journal from people around Joe Biden saying he's talking about getting into this. Stories in the newspapers on the Hill, like Politico and The Hill, saying that Democratic strategists are worried, et cetera. And her own campaign manager felt he had to put out an elaborate memo explaining why this is no problem and everything is fine. And when you're doing that, that means there's a problem and everything is not fine.
GEORGE WILL, SYNDICATED COLUMNIST: Well, we're dealing in part with the forensics of complicated electronic devices and what they can and cannot find. I talked this afternoon to congressman Trey Gowdy of South Carolina of the Benghazi committee. He said one question is, is the FBI only interested in whether there currently are on this server classified documents? Next question is, can they reconstruct this device in such a way that they can find out if there ever was a classified document on it.
And Mr. Gowdy makes the following point. The more steps that were taken to make that impossible, the more likely it is that something was there. The more intentional your concealment has become. And the more steps that were taken, the more implausible it is that what was being concealed was e-mail or so about yoga classes.
NAPOLITANO: And the more steps that were taken, the more people were involved, the more it appears to the FBI like a conspiracy to do something, give her plausible deniability or obstruct the espionage laws of the United States, the more likely the FBI will target and indict the lowest member of that conspiracy and squeeze, to use their terminology, that person to provide information about those north of him or her on the conspiracy.
BAIER: All right, another e-mail controversy that goes back to something we've covered for many, many months. Just to recue everybody's knowledge of this, Lois Lerner.
(BEGIN VIDEO CLIPS)
LOIS LERNER, FORMER IRS OFFICIAL: I have not done anything wrong. I have not broken any laws. I have not violated any IRS rules or regulations.
On the advice of my counsel I respectfully exercise my Fifth Amendment right and decline to answer that question.
SEN. TED CRUZ, REPUBLICAN PRESIDENTIAL CANDIDATE: When you were pleading the Fifth you were saying if I answer your questions I may well implicate myself in criminal conduct.
REP. JIM JORDAN, R-OHIO: She hasn't been square with us since this thing became public. If she's lying to us, it certainly wouldn't surprise me, because, like I said, she lied right from the get go when faced with an implanted question and she tried to blame it on someone else.
(END VIDEO CLIPS)
BAIER: OK, now some new e-mails have come out from the Senate finance committee. One of them "Evil and Dishonest." "Yesterday was a doozy," she writes "They called me back to testify on the IRS scandal. And I took the Fifth again because they had been so evil and dishonest in my lawyer's dealings with them," talking about the GOP lawmakers. Continuing, accusing them of hatemongering, "They took some really awful photos of me at the first hearing last year. I looked like crap. I don't look like that anymore, but it serves their purpose of hatemongering to continue those images." It continues, George, these e-mails, shedding some light in the inner thoughts perhaps of Lois Lerner. Your thoughts?
WILL: Well, first of all as Ted Cruz said she obviously took the Fifth Amendment not because people were being beastly to her lawyer but she thought truthful answers to questions about her comportment at the IRS would get her in perhaps criminal trouble.
But what we really learn from this is not that she detests conservatives. We knew that. She acted on that. What we really learned from this was the fanaticism of this. She said Citizens United, the Supreme Court decision, was the worst thing that ever happened in this country, which rather slights the Civil War, the Kansas-Nebraska Act, and the Dred Scot decision that provoked the civil war.
BAIER: How about 9/11?
WILL: Lots of things. But let's be clear about what Citizens United did. All it said was that corporations and unions are free to spend unlimited amounts on independent, uncoordinated, issue advocacy. That's it. All it said was that Americans do not forfeit their First Amendment rights when they band together in corporate entities such as the Sierra Club or the National Rifle Association, to express political speech. That's it. And she says that's the worst thing that ever happened.
NAPOLITANO: I fully agree with George. I fully agree with his characterization of Citizens United. She is a two-bit political hack. She's entitled to be a two-bit political hack, but not to be in a management position at the IRS when she's approving applications for exemptions from tax regulations for advocacy groups because she has a bias against certain advocacy groups and a bias in favor of other advocacy groups. She should not have that job. She can have whatever opinion she wants on Citizens United. She can have whatever opinion she wants on the Republicans who run the House. But she cannot act on those opinions when she's administering the nation's tax laws.
BAIER: You know, judge, when I talk to people about this and the IRS investigation, there's this frustration out there that nothing ever came to a conclusion. She took the fifth. The investigation continued forever.
BAIER: And so what? Where are we?
NAPOLITANO: We only know that this administration and, candidly, others before it have not hesitated to put political activists in positions to administer the country's tax laws, and that's wrong. The IRS needs a fundamental structural change and only Congress can do that.
LANE: Well, I would just say I'd sort of like to see the e-mails the guys on the committee were sending around about her.
LANE: They might have responded in kind from time to time.
BAIER: Do you think this investigation goes any place?
LANE: No. No. And I think these e-mails don't advance it one bit. They illuminate her attitude while it was going on. But there's no new fact they can see.
WILL: I think within two months the investigation may go to impeachment proceedings against Mr. Koskinen, who is the head of the IRS, for obstruction of Congress's rightful power to investigate. I think it would be a big story this fall.
BAIER: There you go. You heard it here.
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