This is a RUSH transcript from "The O'Reilly Factor," May 25, 2016. This copy may not be in its final form and may be updated.
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O'REILLY: "Impact Segment" tonight. Bad news for Hillary Clinton today. As you may know, the former Secretary of State being investigated by the FBI for possible security violations because she used her private email while conducting national security business. Today, the State Department announced Mrs. Clinton's conduct violated government rules.
Here now to explain further, FOX News Chief Judicial Analyst Judge Andrew Napolitano. You know, when I see these stories, they don't resonate with me anymore.
JUDGE ANDREW NAPOLITANO, FOX NEWS CHIEF JUDICIAL ANALYST: Get tired of them.
O'REILLY: Not tired of them. There is a bit of cynicism involved. And I think some of the viewers feel the same way that the system is so arcane, disorganized, complicated that people go it doesn't matter how much they find out, nothing is going to be done. But you think today is a big deal. Why?
NAPOLITANO: I do. I also think a lot of people share your view. Today is a big deal for a couple of reasons. First, it directly refutes a statement she has made dozens of times. It was allowed. We now know it was not allowed.
O'REILLY: All right. Stop. So, the State Department said today what she did using her private server would have been forbidden if she had asked.
O'REILLY: And she never asked?
NAPOLITANO: Correct. Which was the second point I was going to make. She never even asked.
O'REILLY: But then she will say I didn't know enough to ask.
NAPOLITANO: She signed a two-page statement under oath on her first day on the job, which was given after she had a two-hour tutorial by two FBI agents telling her about the proper care and legal obligations for state secrets. And in that oath, she swore that she had the obligation to know how to care for state secrets and to recognize them.
O'REILLY: General. It's general.
NAPOLITANO: Enough to get her a jury trial.
O'REILLY: Yes. But if this oath had said, I will not use my private server conducting State Department business, then you got her.
NAPOLITANO: You are right. It's not that specific. Because nobody, not the FBI. Not even her own IT people knew about it. Here's what is new in the report today. Her server in her house in Chappaqua went down a couple of times. And when it went down, the Blackberry wouldn't work. And the State Department IT people said here, use a state department Blackberry. And she said through her assistant Huma Abedin, no, because we are concerned with the Freedom of Information Act. So, she went dark. And she had documents verbally read to her rather than transmitted to her through the State Department email system.
O'REILLY: All right. So, she was concerned about the Freedom of Information Act knowing what she was doing?
NAPOLITANO: Yes. Now, what does this tell the FBI? This shows intent. You don't have to prove intent when you're talking about espionage. You can prove it by gross negligence. There is ample evidence of gross negligence. But avoiding the transparency laws shows a consciousness.
O'REILLY: So, let me restate so everybody understands. Two times, you're saying, her private server went down and her machine device didn't work?
NAPOLITANO: We don't know how many times but it was more than once.
O'REILLY: All right. More than once. So the State Department said, use our server and our devices and through her assistant came back no, we don't want to do it. Did they actually say because of Freedom of Information?
NAPOLITANO: Yes. Right in the email, which I had not seen before today. Bill, it's 55,000 emails.
O'REILLY: So that shows a calculation.
O'REILLY: All right? And a calculation shows that she was trying to get around the rules.
NAPOLITANO: Correct. And that feeds into the FBI argument. Now, the FBI is very smart. I believe they already knew before today everything that was in here.
O'REILLY: Do you believe that she is going to be indicted?
NAPOLITANO: I believe there is ample evidence to indict her. And the only way she wouldn't be is if the President or the Attorney General.
O'REILLY: Do you believe the FBI is going to put forth that evidence to the public?
NAPOLITANO: Yes. Whether she is indicted or not. I believe we will --
O'REILLY: Do you believe that will happen before the election?
NAPOLITANO: I believe it will happen before the Democratic National Convention in Philadelphia. That's two months from now.
O'REILLY: Okay. Napolitano, there he is. Thank you, Judge.
NAPOLITANO: My pleasure, Bill.
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