Former Attorney General Mukasey: I was 'distressed' over Comey's remarks on Clinton's lack of intent in email controversy

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

KIMBERLY GUILFOYLE, ON THE RECORD GUEST HOST: This is a "Fox News" alert. Donald Trump is about to take the stage in Raleigh, North Carolina. ON THE RECORD will take you there live the second Trump begins to speak.

Good evening. I'm Kimberly Guilfoyle in for Greta Van Susteren. You'll hear from Trump in just moments. But, first, extremely careless.

The FBI hitting at Secretary Hillary Clinton saying she mishandled classified information on her private email server. But despite that, FBI Director James Comey saying the bureau will not recommend criminal charges against the presumptive democratic presidential nominee.

So why no charges? Here is Director Comey defending his decision.


JAMES COMEY, FBI DIRECTOR: I have not coordinated this statement or reviewed it in any way with the Department of Justice or any other part of the government. They do not know what I'm about to say.

From the group of 30,000 emails, returned to the State Department in 2014, 110 emails in 52 email chains have been determined by the owning agency to contain classified information at the time they were sent or received.

Eight of those chains contained information that was top secret at the time they were sent. 36 of those chains contained secret information at the time. And eight contained confidential information at the time.

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 in their handling of very sensitive highly classified information.

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. None of these emails should have been on any kind of unclassified system. But their presence is especially concerning because all of these emails were housed on unclassified personal servers, not even supported by full-time security staff like those found at agencies and departments of the United States government or even with the commercial email service like Gmail.

She also used her personal email extensively while outside the United States, including sending and receiving work-related emails in the territory of sophisticated adversaries.

Given that combination of factors, we assess it is possible that hostile actors gained access to Secretary Clinton's personal email account. 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.


GUILFOYLE: And, of course, Donald Trump immediately took to Twitter to blast the FBI's recommendations and first this tweet.

"The system is rigged. General Petraeus got in trouble for far less, very, very unfair, as usual, bad judgment."

Now two minutes later, he followed up with this tweet. "FBI director said crooked Hillary compromised our national security, no charges. Wow." #RiggedSystem.

Former U.S. Attorney General Michael Mukasey is here to go ON THE RECORD.

Judge, really was looking forward to getting your perspective today. A lot of people want to hear from someone with your esteemed career, prosecuting cases like this. Were you surprised at the language and at the ultimate recommendation?

MICHAEL MUKASEY, FORMER U.S. ATTORNEY GENERAL: Well, I was surprised about halfway on when he listed all the reasons why she should be prosecuted and then did a 180 and talked about why they were not going to prosecute.

I was particularly distressed to hear that he said there was no intention to violate the law when the laws involved don't require an intention to violate the law.

One has -- the felony statute has a standard of gross negligence. And he said that she showed gross negligence when he said that she was extremely careless in handling information, some of which was at the top most classification.

These are emails that the State Department has said will never be disclosed. She was extremely careless in handling those. That's enough to establish gross negligence.

When he said that we have never done anything like this in the past, he may have been referring to the FBI, but there are record cases of soldiers being prosecuted for doing far less, for mistakenly putting classified documents in somebody's desk drawer and forgetting about them. That soldier was prosecuted for a felony.

GUILFOYLE: General Petraeus.

MUKASEY: No. That's not General Petraeus.


MUKASEY: That's a low ranking soldier.

General Petraeus was prosecuted for turning over highly classified information to somebody who had top secret clearance when it was proved irrevocable -- I mean, without possibility of reputation that that information never leaked out. She gave the documents back. It never found its way into his biography and there were no secrets disclosed. So you are talking about circumstances that are far less serious and those that resulted in today's statement.

GUILFOYLE: And he went through quite a list in terms of a litany of offences and saying that hostile actors could possibly have gained access that she was reckless essentially using that email and her private server when she was overseas in areas where it could easily be penetrated and compromised in terms of our national security.

MUKASEY: Right. That's one element, I suppose, of the gross negligence showing, but it's not necessary that hostile actors actually gain access. All that's necessary is that you act with gross negligence. And he was talking about her traveling in places where there were sophisticated people who could break into her server.

GUILFOYLE: And at this point you don't expect Russia and China or any of these other countries that might have been able to gain access through hackers and people being able to penetrate her server, her emails or those that were also receiving them.

There is back end on both ways to come forward, and say oh, yes, in fact we got through. I mean, they would rather get the information and compromise her if she becomes commander-in-chief.

MUKASEY: That's right. And I don't expect that the United States would disclose that we know they have it because if we do disclose that, then we would be disclosing our own intelligence capabilities.

So, there is a certain amount of what's called grey mail going on here where even if, for example, the CIA is aware that the Russians, or the Chinese, or the Iranians, or some other bad actor has this information. They wouldn't want it disclosed because that would disclose that we are on to them.

GUILFOYLE: And now she is running, obviously, for commander-in-chief, the one to be in charge and deal with these countries and some of these hostile actors should she become president of the United States.

When I was speaking with Rudy Giuliani earlier today, he said, listen, she wouldn't even be able to pass basic background clearance given just the litany of the actions and activities and breaches that even Director Comey laid out.

MUKASEY: Anybody who has been found to do what he says the FBI found that she did would not get a security clearance.

GUILFOYLE: Now how about the fact that they did this interview, the last step that they did was the interview with her at her home for three and a half hours.

MUKASEY: It's actually at FBI headquarters.

GUILFOYLE: OK. And then you see her she went out that night, and then today she is with the president. The timing of all of this. This comes on the heels, of course, of Loretta Lynch meeting with Bill Clinton.

MUKASEY: Right. I'm in sort of a difficult position here because I have a lot of faith in Jim Comey's integrity. I have a little bit less faith today than I had yesterday in his judgment. But I would be very surprised to hear that there was any communication with him about what he said today.

GUILFOYLE: All right. We will see what happens. And then the no statute of limitations so this could still percolate if other evidence comes forward on this in terms of between now or after the election.

MUKASEY: There is a statute of limitations but I don't think --

GUILFOYLE: It won't have expired by the time she becomes president.

MUKASEY: Correct.

GUILFOYLE: Very interesting.

All right, judge. Thank you so much for coming ON THE RECORD tonight.