Marc: So you've been highly critical of FBI Director James Comey's decision not to recommend
prosecution of Hillary Clinton for mishandling classified information.
Can you tell us why you believe she should have been prosecuted?
Mukasey: Well, I think the reasons why she should have been prosecuted were essentially
virtually outlined in his presentation.
Number one, she maintained a private server to handle classified information.
There are at least two statutes bearing on that.
Number one makes it a misdemeanor to remove from its proper storage place classified information
and put it where it doesn't belong.
It doesn't require anything other than that.
It's clear that she knew about that.
He claims that there was no proof of knowledge.
I'll get into that in a minute.
The second statute is a felony which says that if you have classified information and
have it disclosed as a result of gross negligence - not even knowledge, but purposeful action,
gross negligence - then you are subject to prosecution as a 10-year felony.
Congress wanted people who handle that kind of information to handle it carefully.
He said she was extremely negligent.
Or "extremely careless" I think was his expression.
I know of no logical distinction between extremely careless and grossly negligent, nor did he
explain why there is one.
So far as lack of knowledge, number one, the statute doesn't talk in terms of knowledge.
But even if it did, judges all the time find that misrepresentation to fact, destruction
of documents can be used as circumstantial evidence of knowledge.
She, by his own account, lied repeatedly in public.
The fact that she didn't lie to the FBI, or so he says, is totally irrelevant.
She made misrepresentations.
She destroyed documents.
Again, by his own account.
That could be used by a jury to find knowledge.
And the fact is that people have been prosecuted, certainly under both statutes, for doing less.
There have been soldiers who have been subject to prosecution under that felony statute for
taking classified information, putting it in a friend's drawer, and forgetting to take
it out and give it back.
And they faced felony charges.
The soldier who did that did two years in jail, forfeited pay, and was given a dishonorable
discharge.
Marc: Some people have brought the case of General Petraeus and have said that what she
did is far worse than General Petraeus.
I heard you said a quote that actually what General Petraeus did was far worse that he
not only intentionally classified and shared classified information, but he also hid the
document in his attic and lied to investigators about it.
And so he said this quote from Comey, so you have obstruction of justice.
You have intentional misconduct and a vast quantity of information.
He admitted it.
He knew that he was wrong.
It was a wrong thing to do.
It was a perfect illustration of a case that gets prosecuted.
So is Petraeus' case actually worse or not?
Mukasey: It's different.
There is different kind of evidence.
His disclosure of the information was to somebody who had herself top-secret clearance.
She wasn't authorized to see those documents.
But she did have clearance, number one.
Number two, it is entirely clear that there was no spillage.
In other words, nothing leaked out from the information that he disclosed.
She gave the documents back.
Nothing made its way into the biography or any other document that she wrote.
Whereas in the case of Secretary Clinton, it is clear that...I mean, the FBI Director
himself said that she had treated this information in such a way that it was clear that it has
probably been hacked by foreign powers, and that she herself had engaged in practices
when in territory controlled by foreign powers, hostile powers, that lent her communications
to interception by those foreign powers who are sophisticated in doing that kind of stuff
and who are our adversaries.
So there was far more danger to the national security from what she did than from what
he did.
Marc: Now, you pointed out that even if the CIA knew that Russia or China or Iran or another
hostile power had gotten this information, they'd probably never disclose it because
that would reveal to those people that we had the abilities.
Are we ever...
Mukasey: I don't know about...
Marc: Are we ever gonna...
Mukasey: Probably never.
But there's ample reason and certainly some precedent for the fact that they would not...for
not to disclose it.
Marc: But are we ever gonna find out the true extent of the damage that was done by this
episode, by her mishandling of this information?
Mukasey: I hope not.
Because if we ever find out the true extent, we may find it out to our great regret.
Marc: Now, he said that no reasonable prosecutor would indict Hillary Clinton.
That was his standard.
You supervised the nation's prosecutors as attorney general.
You were a federal judge.
Is that just an untrue statement, or is he right?
Mukasey: I don't know what the basis is for that statement.
I have seen reasonable prosecutors bring cases on less evidence and win cases on less evidence.
I don't stand alone in that.
Rudy Giuliani, who himself was something of a prosecutor, has said the same thing.
There is dynamite evidence in this case of what she did and evidence of her state of
mind, notwithstanding what the Director of the FBI said.
Marc: Trey Gowdy kept pointing out during the hearing how many times she had got him
to say, "Yes, that was untrue," "Yes, this was untrue that she said..."
And he pointed out that repeatedly lying about something is generally used as evidence of
knowledge and intent in criminal cases.
Mukasey: That's absolutely right.
That's absolutely right.
And as far as negligence never being the standard for a prosecution, criminally negligent homicide
is prosecutable I think in just about every state in the union.
And the Director's only response to that is, "Well, I don't really know about state practice."
Somehow the notion that it's unfair or unreasonable for Congress to have made that judgment when
you're talking about national secrets...yes, if you treat those in a grossly negligent
way, that should be the equivalent of criminal intent because you're not supposed to deal
with secrets that way.
Marc: You not only criticized Comey's decision.
You took issue with him publicly announcing his recommendations and saying he stepped
way outside of his job.
What did you mean by that?
Mukasey: First of all, it's not at all clear the FBI always makes recommendations in cases.
It's the Federal Bureau of Investigation, not the Federal Bureau of Prosecution, and
they're certainly not the Federal Bureau of Determination.
They investigate, bring the facts to lawyers in the Justice Department.
And here, as I understand it, that they were working with Justice Department lawyers, and
they may very well, in the course of bringing them the facts, make a recommendation.
But they make it in the context of a confidential communication between fact-gatherers and prosecutors
in mulling the facts of the case, talking it over, figuring out whether it pays to go
ahead.
They don't just get up publicly and announce that their recommendation is that no prosecution
be brought.