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Special Report

The political ramifications of the FBI's Clinton decision

This is a rush transcript from "Special Report," July 5, 2016. This copy may not be in its final form and may be updated.

(BEGIN VIDEO CLIP)

JAMES COMEY, FBI DIRECTOR: Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information, there is evidence that they were extremely careless. For example, seven e-mail chains concern matters that were classified at the top secret special access program at the time they were sent and received.

There is evidence to support a conclusion that any reasonable person in Secretary Clinton's position or in the position of those with whom she was corresponding about those matters should have known that an unclassified system was no place for that conversation.

Although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case.

(END VIDEO CLIP)

DOUG MCKELWAY, GUEST ANCHOR: "No reasonable prosecutor would bring such a case." Many people thought as Director Comey was speaking there that he was laying the groundwork for a criminal referral. Ultimately he did not. He did just the opposite of that, ultimately closing with, quote, "We cannot find a case that would support bringing criminal charges on these facts."

Paul Ryan, speaker of the House, issued a statement shortly thereafter in which he said something very, very different. Quote, "While I respect the law enforcement officials at FBI, this announcement defies explanation. No one should be above the law. But based upon the director's own statement, it appears damage is being done to the rule of law. Declining to prosecute Secretary Clinton for recklessly mishandling and transmitting national security information will set a terrible precedent. The findings of this investigation also made clear that the secretary misled the American people when she was confronted with her criminal actions. While we need more information about how the bureau came to this recommendation, the American people will reject this troubling pattern of dishonesty and poor judgment."

Let's bring in the panel now, Mercedes Schlapp, columnist for The Washington Times; Kirsten Powers, USA Today columnist, and syndicated columnist Charles Krauthammer. Charles, let's start with you.

CHARLES KRAUTHAMMER, SYNDICATED COLUMNIST: Well, I guess the conclusion of the day is a noncriminal liar. The lying is obvious when you compare her statements with what Comey said. But he came out with a puzzling conclusion. As you say, he laid the case for gross negligence. He accused her of extreme carelessness. And then he laid out the fact that she should have known, she did know.

And then he created a completely irrelevant new standard, which is malicious intent. But negligence does not require intent. That's the whole point of having it in the statute. There's intentional, and the statute says "or gross negligence." So I think his logic is completely wrong. He spent 14 minutes laying out a case for negligence, and then he said you can't prosecute. This is the end of this, I believe. But as a political matter, what hangs over, the residue is yes, there's no implosion of her candidacy. But I can see all the ads cut between now and Election Day juxtaposing with what Comey said today with what she has said incorrectly at the least in the past.

MCKELWAY: And he cited previous case law in terms of this malicious intent, and here is specifically what he had to say about that.

(BEGIN VIDEO CLIP)

COMEY: All the cases prosecuted involved some combination of clearly intentional and willful mishandling of classified information or vast quantities of information exposed in such a way as to support an inference of intentional misconduct, or indications of disloyalty to the United States, or efforts to obstruct justice. We do not see those things here.

(END VIDEO CLIP)

MCKELWAY: Kirsten?

KIRSTEN POWERS, USA TODAY: Well, I think that's the most important thing is that intent, at least under this statute, seems to be what they look at. And conservatives are really focusing on gross negligence. But I heard an interview earlier today with the U.S. prosecutor who prosecuted the Petraeus case who everyone keeps invoking as being similar to this even though it's not. And he said that actually he can't think of a time when this statute has been used to prosecute gross negligence and he things it was appropriately applied. So for whatever reason, this statute, they really do look at intent. And what they seem to have come to the conclusion here is that she didn't do it intentionally.

That said, I think that the problem with this is of course they don't see this kind of leniency against other people who mishandle classified information, like Navy reservist who merely took some information home, never intended to distribute it, and he was prosecuted. So there is some sort of double standard going on here.

MCKELWAY: Mercedes, you heard Charles say that intent shouldn't matter.

MERCEDES SCHLAPP, THE WASHINGTON TIMES: That's right. But what interesting too is the fact that what aren't going to be the consequences, right? So Comey clearly makes a statement here where he says people in similar cases will face either administrative or security consequences, but we're not going to address it right now.

So it leaves that question of when is it going to be addressed? Will Hillary Clinton be stripped of her security clearance? What are going to be the penalties. So I don't think this is over. While the criminal charges might be not invalid -- we're not going that direction -- this is clearly an indictment of her careless character, and I think it really represents the fact that Hillary Clinton and her campaign have lied time and time again. And that's what I think is going to be the major political fallout of this.

KRAUTHAMMER: One more point on intent. Kirstin she didn't intend it. The question is, what is "it"? She intended to set up a private server. She intended to send all the classified e-mails that she sent, some of which were actually marked as classified at the time. It appears that Comey's standard is, did she intend to harm the United States? If she didn't, she gets acquitted. That's not the standard. It's the intent of handling, mishandling this information, and that's what the statute requires. She met it, and he declined to prosecute.

MCKELWAY: Really quickly, he also said "no reasonable prosecutor" would have press charges here. What is the definition of reasonable in this case? Anyone want to take a shot at that?

POWERS: I think it's what I was saying earlier, the prosecutor who prosecuted Petraeus said he doesn't think this is how the statute is applied in terms of gross negligence and that's how it's typically applied. So I think it means it is how this is typically applied and that anyone looking at the statute in case law would not think that she should be prosecuted. She behaved badly. There's no question about that. And we could talk about the political ramifications of that. But whether it was criminal behavior, he's saying it wasn't.

SCHLAPP: But is Comey the one to make that decision? Would that be more the career prosecutors to make that decision of whether they should move forward or not?

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