Hillary Clinton's credibility questioned over private emails

This is a rush transcript from "The Kelly File," March 5, 2015. This copy may not be in its final form and may be updated.

MEGYN KELLY, HOST: Breaking tonight, Hillary Clinton finally speaks out on her decision to conduct all of her official government business on a private email account while she was secretary of state. But her comment only fueling more questions and demands for accountability across the Obama administration.

Welcome to "The Kelly File" everyone. I'm Megyn Kelly. Secretary Clinton's first public comment coming late last night in the form of a tweet. The secretary writing, quote, "I want the public to see my email. I asked state to release them. They said they will review them for release as soon as possible."

But the State Department only has the emails that Mrs. Clinton's minions chose to turn over. So the legal questions remain, did she conceal or destroy any federal records? If so, did she do so willingly? We'll look into those questions tonight.

Her controversy is just the latest for an administration that is faced festering doubts about his credibility. Just tonight, a new Fox News poll finds just 43 percent of voters think the president is honest. Fifty four percent say President Obama is not honest.

These numbers were nearly reversed just a few years ago. Thomas Fitton is the president of Judicial Watch. His group has ten active freedom of information act lawsuits against the State Department and just submitted requests for access to Secretary Clinton's newly revealed e- mails. Tom, good to see you tonight.

So you have been essentially going after documents of the State Department for years now. And when they don't provide you with everything you file a lawsuit demanding it. And ultimately they may have to provide that to you. What if any documents of Hillary Clinton's have they provide? Have you gotten any emails of hers over the past six years?

THOMAS FITTON, JUDICIAL WATCH PRESIDENT: None that we can tell. We filed over 160 requests for information with the State Department. Twenty lawsuits, 10 are still active. We can't find anything in any of the Benghazi documents that we obtained. You know, those documents we got last year started up the select committee because of their explosive nature. And we noticed in those documents where are the Hillary Clinton emails? So we sued again more directly at her office just to make sure and we still hadn't gotten anything. And then just recently the State Department said, oh, by the way, there may be some more records we need to look at. They've been playing a shell game with us.

In fact, there was one lawsuit that we dismissed because they said they looked at her office and found nothing. We didn't know they weren't searching that secret email account.

KELLY: There was nothing in her office to look for. Tom, I apologize. I need to stand you by. We're coming back to you. We're going to finish this conversation.


KELLY: But we're just getting this NTSB -- I believe the NTSB news conference on the Harrison Ford plane crash. There were reports earlier that he was seriously injured. We want to listen in for a minute just to find out the status. Let's listen.


In the meantime we want to get back to Tom Fitton who is president of Judicial Watch on the Clinton email controversy. Tom, my apologies for the interruption. Obviously, we wanted to get the breaking news in.

Let's just pick up where we started out. See, you've been trying to get these documents from the State Department over a number of matters including Benghazi. And when you ask for documents you don't recall ever getting anything back with the Hillary Clinton email response on it or a header on it?

FITTON: That's right. In fact, it was notable. So notable that we filed an additional lawsuit to make sure they had no out not to give us the material. And we dismissed another lawsuit against the State Department after they told us they searched her office and they didn't find anything. You know, they had an obligation to tell us, they're not only lying to us, they're messing with the courts. And this is a seven-year cover-up. The administration knew this from the beginning, as soon as she began using this email account.

And it's not a private email account. It's a government account that was disguised and hidden from the American people. So the idea her lawyers are going and checking these emails, they shouldn't be allowed access to it. The State Department or the Justice Department should go in and seize this account and make sure there's no classified material that's been mishandled or lost and no other records subject to the federal records laws have been mishandled or lost. I tell you there's a criminal violation potentially here.

KELLY: So to take a step back, see, you're getting these responses from the State Department to your Freedom of Information Act requests, because those are our documents, those are public documents and you're looking at the responses and you're thinking, nothing from Hillary Clinton. It's not one correspondence that was printed out from her computer? Is that how you had to figure it out? You know, if I print something off my computer you're going to see Megyn Kelly at the top.

FITTON: Well, exactly. And you normally see that with top administration officials. We receive emails from Eric Holder. You can tell when an agency head has an email. They let you know, it's the agency head's email. They're not going to give the email address but you know whose it is. And it was notable that this was not readily apparent in any of the documents we received and they never told us they weren't searching her email accounts. And, you know, the law requires those email accounts be searched. And her concealing those records as I'm sure your other guests will note, that this is something that a prosecutor ought to be looking into.

KELLY: Uh-huh.

FITTON: And classified information on what's necessarily were in use in these accounts. And there's severe penalties. And people can go to jail for mishandling classified information.


FITTON: This is as I said a seven-year cover-up. And there are men in jail right now for doing less than what I think Mrs. Clinton clearly is frankly admitted to doing which is setting up on purpose a secret account that no one could look at even though it was for government business.

KELLY: You teed up my next guest perfectly, Tom. Thanks for being here.

FITTON: Right.

KELLY: So how bad is this legally? My next guest says what Hillary Clinton did was illegal and it's been illegal for 20 years.

Shannen Coffin, he served as a top White House legal adviser during the George W. Bush administration, he's also former deputy assistant attorney general of the Justice Department's civil division. Shannen, good to see you. Do you believe this is illegal?

SHANNEN COFFIN, FORMER COUNSEL TO VICE PRESIDENT CHENEY: Hi Megyn.  Yes, it's certainly a violation of federal records laws which require preservation of these sorts of records. For 20 years since the Clinton administration it's been clear that if you have external emails on external email systems that on which you conduct official business you've got to preserve those records as official records.

KELLY: What do you make of her statement, "I want the public to see my email. I asked state to release them. They said they will review them for release as soon as possible."

COFFIN: Well, it's awfully convenient. She's picked the 50,000 pages that she has decided can be released. And we don't have a clue what else there is on those email servers. There could be twice, three times that.  I don't know, Megyn. And it's not up to Hillary Clinton to make that sort of decision. It's up to federal records officials.

KELLY: But what about those who say lots of officials have private email accounts, have and had including Secretary of State Colin Powell.

COFFIN: I mean, two wrongs don't make a right here. And I'm not 100 percent certain what the circumstances of Colin Powell's records are, but I'm not here to defend him either. It was well-known when Colin Powell was secretary of state that you preserved private emails that had official records. But after he was secretary of state there was an even more emphatic regulation in 2009 that made very clear that you had to preserve these records.

KELLY: What to the argument of she preserves them because they're all presumably sitting on her server that sitting in her house in Chappaqua, New York.

COFFIN: Presumably is a pretty loaded word there. Do we know that?  And why is it that Tom Fitton who you heard from, who was the bane of my existence when I was a DOJ lawyer --

KELLY: Right, he hated you too.

COFFIN: Right. Why is it that Tom Fitton, you know, has been making requests and other public advocates have been making requests too and none of those records have been searched? They might be preserved. I mean, I'm willing to actually, you know, indulge that suggestion right now. But they were concealed during her tenure in office. They weren't subject to any searches during her tenure in office. The entire purpose of this system was to take them offline and outside of the record searches that would be required when Congress asked for them or when FOIA requesters ask for them.

KELLY: That's what happened during all these lawsuits. And now the State Department says they're not going back and look to see if whether they have any documents that were responsive to any of the FOIA requests et cetera that have come in prior to right now. Is that OK?

COFFIN: Well, the answer to that is we'll see because there are a lot of judges that may be asked to revisit these issues. And maybe they won't have to search those records. But there are going to be a lot of judges who felt like they were misled.

What matters here is what did the Department of State say in affidavits to the court about the scopes of their searches.

KELLY: That's right. And if they misrepresented this.

COFFIN: And is there a possibility of perjury here.

KELLY: If they misrepresented this, Marie Harf is wrong and they will be going back through those documents, not just 55,000 but more.

Shannen, good to see you.

COFFIN: Good to see you, Megyn.

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