SPECIAL REPORT

How the debate over the Clinton probes is playing out

This is a rush transcript from "Special Report with Bret Baier," November 3, 2016. This copy may not be in its final form and may be updated.

(BEGIN VIDEO CLIPS)

DONALD TRUMP, REPUBLICAN PRESIDENTIAL NOMINEE: A high ranking government official has been caught selling her public office, threatening national security, and engaging in a massive criminal cover up. She is likely to be under investigation for many, many years, also likely to conclude in a criminal trial. This is not what we need in this country, folks.

HILLARY CLINTON, DEMOCRATIC PRESIDENTIAL NOMINEE: Do we want this man appointing judges?

CROWD: No!

CLINTON: Do we want him controlling the Justice Department?

CROWD: No!

CLINTON: People who are voting for him, that's what they would get.

(END VIDEO CLIPS)

BRET BAIER, ANCHOR: Hillary Clinton and Donald Trump on the trail today as we get the information about the investigations moving forward with the Clinton Foundation and the e-mail investigation. We are still getting WikiLeaks every day by the thousands. Here is one from Jennifer Palmieri, March 4th, "Cheryl is working with Steve to get an agreement on the release of 55,000 pages of emails she had to State. The hope would be that we are able to say tonight to the press that we are working with State to get emails released. Not sure where those discussions will land, but hope it's released on a timely basis or we pledge to release them ourselves in 10 days to a week." Jim Margolis responds "If there is a release of 55,000 are there others that are not being released?" Joel Benenson, an adviser, responds "Definitely." Palmieri then responds separately, "55,000 is the entire batch emails she gave to state, so that represents all the email that was official business. The only emails we would not be making public are who true, personal ones." Mandy Grunwald writes "Do we have a definition of "truly personal," family, friends, or Huma, Philippe, Cheryl, et cetera included in the 55,000?"

Here is what I asked her in March of last year.

(BEGIN VIDEO CLIP)

CLINTON: What we turned over were more than 30,000 e-mails that I assumed were already in the government system, Bret, because they were sent to state.gov addressed.

BAIER: Sure, but there were some that were just recently discovered and turned over.

CLINTON: No, that was in the State Department, not me. I turned over everything.

(END VIDEO CLIP)

BAIER: OK, let's bring in our panel: Fox News senior judicial analyst Judge Andrew Napolitano; Susan Page, Washington bureau chief of USA Today, and Charles Hurt, political columnist for The Washington Times. OK, Judge, first about all that we have learned and kind of put it in context here.

JUDGE ANDREW NAPOLITANO, FOX NEWS SENIOR JUDICIAL ANALYST: Well, we have learned that the FBI made a mistake when it terminated the investigation on July 5 on the basis of what it then knew. The stated reason by director -- FBI Director Comey was no prosecutor would take the case. We have learned that no grand jury was hearing evidence or observing testimony, and we have learned that FBI agents felt that they couldn't conduct an investigation as broadly as they want.

We know that because investigation was reopened last week because of more material that came into their hands, some by a variety of sources. Some from other cases like the Anthony Weiner case, some from cases that "The Wall Street Journal" talked about, like surveillance tapes of people who were doing business with the Clinton Foundation which also tipped off the e-mail.

We also know that Mrs. Clinton was not true to you, was not being honest to you and not being honest to the public when she said that everything has been returned. We know that her own advisors speculated that she was not being honest about saying everything that was returned.

And finally we know with near certainty -- not absolute certainty, but near certainty that foreign intelligence agents hacked her e-mails, those agents of foreign governments that wish us weapon like Israel and those agents of foreign governments that wish us ill like Russia, China, and Iran.

BAIER: Yes, I think they're in the process of digging in with the cyber team to try to find those fingerprints, but they are very tough to do.

The other thing we're learning, Susan, is the split within not only the FBI and DOJ but within the FBI itself about these two track investigations, the e-mail and the foundation.

SUSAN PAGE, "USA TODAY": We do. We hear reports like your report talking to FBI sources affiliated with the FBI or knowledgeable of the FBI.

BAIER: And inside, James Rosen, too.

PAGE: Yes, saying that they want to pursue investigations. They feel there's ground to pursue. They're eager to do it.

But we also hear from other sources reported by ABC and NBC that there are people in the FBI who do the not feel these are leads that are particularly substantial and worth pursuing in an aggressive way. What's extraordinary is that this debate is going on in public. We have anonymous sources on both sides talking to reporters.

BAIER: How does it play? How does it sink in?

PAGE: I think it reinforces for so many voters, it reinforces the concerns they have about Hillary Clinton, certainly not helpful for her, whatever the facts are within the FBI. And I think it must be alarming to some within the FBI that to have this be so public because, of course, these kinds of debates go on routinely when there are investigations under way, but they're usually going on in private.

BAIER: That's true. And this split we are talking about, some of it has to do with an anger inside there about these investigations and where they have gone or not gone.

CHARLES HURT, THE WASHINGTON TIMES: And the pressure that obviously Director Comey was under between the time that he made the announcement in July and when he announced that he was going to reopen.

But stepping back, it's really hard to overstate how extraordinary this situation is. You have someone running for president who -- by a lot of polls looks like she's going to win or is ahead in the polls right now by a small margin, who is go going in under a criminal investigation by the federal government that she's then going to take control over. You already have talk, conversations about impeachment proceedings. You have real questions about if she is elected, does President Obama then pardon her before she becomes president? Or does she pardon herself? It's truly an extraordinary situation.

BAIER: But some of that has, obviously, Republicans jumping on that in an effort to stoke the political flame. Here is vice presidential nominee Tim Kaine on all of this today.

(BEGIN VIDEO CLIP)

TIM KAINE, DEMOCRATIC VICE PRESIDENTIAL NOMINEE: People are throwing the "impeachment" word around before the election is even taking place. First, it kind of suggests a little bit of defeatism, like, well, we think we're probably going to lose. Second it also suggests a really bad view of what the role of a legislator is. The same about this investigation stuff. I thought legislators were supposed to legislate. Investigations are part of it, but the real issue is legislation.

(END VIDEO CLIP)

BAIER: Judge?

NAPOLITANO: In fairness to Senator Kaine, there are Republicans who have said we have had enough investigations, assuming Mrs. Clinton wins, to last a couple of years. On the other hand, the talk of impeachment in my view is grossly premature and highly irregular. The Congress is not going to invalidate the popular will should Mrs. Clinton get elected because of something she allegedly did before she was in office. Charlie is right, President Obama could pardon herself. Charlie is right again, she could pardon herself. There would be great political fallout to either of those pardons, but that would certainly insulate her from any political consequences.

There was a Supreme Court opinion that did not exist when her husband was being pursued. And that opinion, which involves him on civil side, Clinton versus Jones, says pretty clearly the president is immunized from the consequences of criminal prosecution while president. So that would prevent her from having to defend herself while she's in the White House should the FBI and the Justice Department that she would control decide to move against her.

BAIER: On the flip side, Democrats, Susan, pointing to this "Wall Street Journal" piece about potential problems for Donald Trump and his foreign business entanglements. "Those whom Ivanka, Donald Trump Jr., and Eric Trump have worked with abroad include the family of a developer of India who is the ruling party politician, Azerbaijani government minister's son, a media company that became the Turkish president's outlet of choice during the July 15th coup attempt. No recent president has had a portfolio of international business interests as extensive as Mr. Trump's or as great a level of business engagement on his behalf by offspring who have also played a role in this campaign." He says he hands the whole thing over to the kids and that takes him out of it.

PAGE: So whoever gets elects, it's going to be a complicated couple years. Of course, it wasn't in "The Wall Street Journal" story, there weren't allegations of impropriety or criminal behavior.

BAIER: Entanglements.

PAGE: Entanglements. It would be, how complicated is this going to be? Traditionally a president would turn his holdings over to a blind trust. That's not what Donald Trump says he would do. He would turn it over to his kids, which does not provide the degree of insulation that we are accustomed with presidents and their holdings.

BAIER: Bottom line, we are talking about investigations. We are talking about charges. We are talking about a campaign that has devolved into attacks a lot of time. And there's not a lot of optimism about getting things done.

HURT: On both sides, the -- it's all about what's wrong with the other candidate right now. And of course, there are -- it's going to be complicated no matter what happens. And I think that's one of the things that's helping the Clinton campaign is that this stuff is so complex that it's hard for us to understand it and we're doing this for a living. For people out there who have real jobs, they really don't understand all the specifics.

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