DOJ under scrutiny over Clinton Foundation

This is a rush transcript from "On the Record," August 12, 2016. This copy may not be in its final form and may be updated.

KIMBERLY GUILFOYLE, FOX NEWS HOST: Texas Senator John Cornyn as you heard is formally asking the Obama Justice Department why it did not investigate the Clinton Foundation.

Former U.S. attorney general Michael Mukasey goes ON THE RECORD to discuss this developing story.

Judge, thank you for being with us tonight.

And, you know, your thoughts and reflections on why would they refuse to do this investigation, and now that we are talking about it and that it's being exposed, do you think there will be a reconsideration?

MICHAEL MUKASEY, FORMER U.S. ATTORNEY GENERAL: Well, good to be with you, Kimberly.

I don't know whether they are going to reconsider. But I think the first question you have to ask is what are they investigating? What possible crime was committed here?

And I think you can find a clue to that in the response of the Clinton campaign. When they said that, well, she wasn't herself involved in the -- in giving an interview to somebody for a job or in giving access by a donor to, possibly to an ambassador that they stressed that she wasn't herself involved.

So the question is, what law is it that would turn on the question of whether she was directly involved or not?

Well, there is a statute that bars her personal and substantial involvement in any matter in which she understands that her spouse, among other things, has a direct financial interest, like the foundation.

So the question then is did she have a direct and substantial involvement? But it seems to me they are asking the wrong question. It's not whether she had a direct and substantial involvement in the interview or in access to the ambassador in that particular situation, but rather whether she had a direct and substantial involvement in creating the practice in her aids pursuing a practice of giving access. If she had a direct and substantial involvement, then that could be a crime.

GUILFOYLE: Yes, it sounds right there you are able to make a very simple, in a way that people can understand a potential causal connection that would tie her to this.

Now, I guess what bothers me as a former prosecutor is why would they preclude right from the outset and say, you know, a reject on this and not investigate when there appears to be sufficient evidence to at least open an inquiry?

MUKASEY: That's an excellent question, Kimberly.

You don't really have to have probable cause. You just have to have some reason to investigate. And as these emails indicate, there was some reason to investigate.

Now, the question is whether there is any matter in which she had a direct link and substantial interest. The only way to find that out is -- a personal and substantial involvement, I should say. And the only way to find that out is to look.

GUILFOYLE: Right. And here's the problem that I'm sure that is bothering people at home, it's that these are emails that were supposed to just be about like yoga, yoga pants and a wedding. And, instead, there is something that is considerable, you know, questionable credibility here in terms of whether or not there was pay for play and any kind of favoritism showed and any kind of nexus with the former secretary of state.

Your anticipation as to whether or not if they decide to open an investigation what much, if anything, can happen before November?

MUKASEY: I don't know. I mean, obviously, it's going to take some time to take a look. And simply the question of whether there is an investigation or not would be a major cloud.

I don't know whether anything can happen before November or not. They have to really turn on the after burners in order to get an investigation done.

GUILFOYLE: Yes. And it's interesting to me, again, as a former prosecutor, sort of suggest a little bit of consciousness of guilt that one of these crucial emails were in the part that was deleted and not turned over.

But, judge, thank you as always for your time in going ON THE RECORD tonight.

MUKASEY: Good to be here, Kimberly.