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LEGAL VIEW WITH ASHLEIGH BANFIELD

FBI Not Recommending Charges Against Hillary Clinton; Trump Accused of Sending Anti-Semitic Tweet. Aired 12-12:30p ET

Aired July 5, 2016 - 12:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


[12:00:00] JOHN BERMAN, CNN ANCHOR: Stand by. A lot more coming up, including President Obama on stage with Hillary Clinton later on.

KATE BOLDUAN, CNN ANCHOR: That's absolutely right. Yet another extraordinary day in politics.

Thank you to our viewers around the world for joining in.

Let's go to Ashleigh Banfield and "Legal View" right now.

Ashleigh.

ANNOUNCER: This is CNN breaking news.

ASHLEIGH BANFIELD, CNN ANCHOR: Hello, everyone. I'm Ashleigh Banfield. Welcome to LEGAL VIEW.

We're going to begin with some legal breaking news. The FBI not recommending charges against Hillary Clinton over her use of personal e-mail servers while she was the secretary of state for the United States. The FBI director, James Comey, spoke just a short time ago and he characterized Secretary Clinton and her aides as, quote, "extremely careless," but also said that this fell short of criminal intent. Here is the FBI director, James Comey, in his own words just a few moments ago.

(BEGIN VIDEO CLIP)

JAMES COMEY, FBI DIRECTOR: From the group of 30,000 e-mails returned to the State Department in 2014, 110 e-mails in 52 e-mail 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.

The FBI also discovered several thousand work-related e-mails that were not among the group of 30,000 e-mails returned by Secretary Clinton to the state in 2014. We found those e-mails in a variety of ways. Some had been deleted over the years and we found traces of them on servers or devices that had been connected to the private e-mail domain. Others we found by reviewing the archived government accounts of people who had been government employees at the same time as Secretary Clinton, including high-ranking officials at other agencies, folks with whom a secretary of state might normally correspond. This helped us recover work-related e-mails that were not among the 30,000 that were produced to State. Still others we recovered from that painstaking review of the millions of e-mail fragments dumped into the slack space of the server that was decommissioned in 2013.

With respect to the thousands of e-mails we found that were not among those produced to the State Department, agencies have concluded that three of those were classified at the time they were sent or received, one at the secret level and two at the confidential level.

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. 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. Prosecutors necessarily weigh a number of factors before deciding whether to bring charges. There are obvious considerations, like the strength of the evidence, especially regarding intent, responsible decisions also consider the context of a person's actions and how similar situations have been handled in the past.

In looking back at our investigations into the mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of clearly intentional and willful mishandling of classified information or vast quantities of information exposed in such a way as to support inference of intentional misconduct or indications of disloyalty to the United States or efforts to obstruct justice. We do not see those things here. Although the Department of Justice makes final decisions on matters like this, we are expressing to Justice our view that no charges are appropriate in this case.

I know there will be intense public debate in the wake of this recommendation, as there was throughout the investigation. What I can assure the American people is that this investigation was done honestly, competently and independently. No outside influence of any kind was brought to bear.

(END VIDEO CLIP)

BANFIELD: Secretary Clinton's political rival Republican Donald Trump, wasted no time in reacting and sent out these tweets. Quote, "the system is rigged. General Petraeus got in trouble for far less. Very, very unfair. As usual, bad judgment." And then he went on with this quote, "FBI director said crooked Hillary compromised our national security. No charges. Wow!" And then "#riggedsystem."

[12:05:02] I want to bring in Evan Perez, our CNN justice correspondent, CNN's senior legal analyst Jeffrey Toobin is with us, and CNN political commentator Errol Louis is here as well.

Jeff Toobin, I want to go first to you with some of the wording of what the FBI director said, because you have to know every single one of those words was vetted and carefully chosen to go public with something of this magnitude. He said, "although we did not find evidence that Clinton or her colleagues intended to violate the laws, there is evidence they were careless in their handling of e-mails." We have seen charges brought many a time where the intention wasn't there but the recklessness was. So why is this any different?

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Because the crime of disclosing classified information is a specific intent crime. So crimes, it doesn't matter what your intent is. If you are drunk driving, for example, and you say to the officer, but I didn't intend to drunk drive, if you are driving with a blood alcohol level over a certain amount, you're guilty. It doesn't matter what your intent is. That is not true of the unauthorized disclosure of classified information. In order to have a criminal charge, the government must prove that you knew that you were doing something improper, you knew you were disclosing classified information when you had an obligation to keep it secret.

BANFIELD: Why don't we - while you're saying that, why don't we pop up in the screen behind me so that our audience can actually see the statute -

TOOBIN: Right.

BANFIELD: That James Comey was working with. Whatever you feel about any of this, this is the statute James Comey was working with, "a felony to mishandle classified information either intentionally or in a grossly negligent way." So what about those additional words, the grossly negligent way, making it a misdemeanor to knowingly remove classified information from appropriate systems or storage facilities?

TOOBIN: This is the reference that you notice that Director Comey said - he said historically no one would ever bring charges in a case like this. Frankly, the grossly negligent has not been the basis for any criminal cases that I'm aware of.

Let me just say a word about General Petraeus, because I know that's going to come up a lot. General Petraeus, of course, was charged, pleaded guilty to a misdemeanor for disclosing his classified diaries to his biographer and - who was also his girlfriend. The difference between the Petraeus case and this case is that Petraeus acknowledged that he knew the information he was disclosing was classified. Hillary Clinton's position all along has been, I never intentionally disclosed any information that was classified.

BANFIELD: Right.

TOOBIN: And the investigation did not disclose any information to contradict that.

BANFIELD: Evidence that would have refuted that -

TOOBIN: Correct.

BANFIELD: Other than her own -

TOOBIN: So that's - that's the legal distinction between the two cases.

BANFIELD: Although, and I'll bring Evan Perez in on this.

Evan, lest anyone think that, you know, there was just a couple of incidents, we have learned today there weren't a couple of incidents and also the secretary said she'd never knowingly sent anything marked classified. We now know, from the 30,000 e-mails that she turned over, 110 of them had contained classified information at the time they were sent or received. And not just a little classified. A lot classified. So characterize that for me.

EVAN PEREZ, CNN JUSTICE CORRESPONDENT: Well, that's right, Ashleigh, and I think that's one of the big distinctions and I think one of the most important parts of this case is that I know that Secretary of State Clinton has spent a lot of time lawyering her statements. I mean if you notice, she changed them over time where she finally arrived at was that she didn't send or receive any classified information. Well, we now know, according to Director Comey, that there were seven e-mail chains, including ones in which she sent and received e-mails that included highly, highly classified information, including special access programs. That's the most sensitive of information that the U.S. government possesses. And so we now know that the FBI disagrees with the last characterization by the Clinton campaign.

Now, look, it's clear that the - as the director of the FBI said, you know, normally you don't bring criminal charges in cases like this. However, you do handle this in an administrative sanctioned manner, or a security sanctions. That means that a normal person, if you weren't secretary of state, you might have your security clearance removed, or when you apply for a security clearance the next time, they'll have a letter in your file that will make it more difficult for you to get that security clearance. Obviously, she's running for president. She's going to be the ultimate authority on what is classified and who gets a security clearance. It's highly improbable that someone could become president and not have access to classified information.

It's clear here, though, that while this is not a criminal matter for the FBI, they're now recommending it across the street to the Justice Department, which will make the final call in the coming weeks. We now know that they believe that this was obviously very extremely careless handling of classified information. Perhaps not criminal, but simply not the way it should have been handled.

[12:10:08] BANFIELD: Right. And sanctions can also come from voters as well, if they're not coming from the State Department, since that's now moot.

Evan, stand by for a minute, if you will. I want to bring in Errol Louis with regard to this.

This is the strangest story in terms of how everyone will parse it differently. In those lower thirds (ph) on cable news channels will vary according to what news channel you watch. Good news and bad news. However, I can't say that good news is "today I wasn't charged."

ERROL LOUIS, CNN POLITICAL COMMENTATOR: Well, that's not great news politically speaking. I also don't think it's going to necessarily cluster according to what channel you're watching. I think every individual looking at this has some kind of relationship to e-mail, to information, to national security and, of course, to the politics of the situation. I do think that Hillary Clinton's partisans are going to say, look, we're done, this is over. And I think it plays off of some of the more lurid charges that have been hurled at her. When Donald Trump has said in the past, she shouldn't even be allowed to run, she may end up in jail, you know, or she's going to be prosecuted, I'm going to indict her.

BANFIELD: No, no, no, he's gone so far as to actually libel her, she's guilty as hell, before there's ever even been the investigation, you know, completed.

LOUIS: Right. Right. He's put out fundraisers saying, you know, give me the money so that I can indict her and so forth. That part, at least, you know, the reason - the other reasonable people I think are going to continue in their direction. Reasonable people will look at this and say, OK, this is bad, but it's bad at a certain level. It's not criminal. It's not something somebody should go to prison for. It does, I think, give voters some information about whether or not she has the judgment and the temperament that she keeps claiming she does have when it comes to these very sensitive matters. How that interacts with technology, I've seen some tweets that talk about how, well, look, she's a grandmother who had, you know, security clearances in the Internet and apparently wasn't good at putting those two things together. Is she going to sort of try that as a mea culpa? We'll see on the campaign trail.

But I think this is, you know, this is important I think for people to look at, in part because, you know, she will be, if she's elected, somebody who has to face the very same questions and apply the same standards at a much higher level, both to the White House staff and to everybody else.

TOOBIN: I think you need to think about, what was the alternative here? The alternative was Jim Comey saying, I recommend charges. That would have been a complete catastrophe for her. There is a very realistic possibility if he said that, she would not be the Democrat nominee. So the fact that he said no charges is undoubtedly good news

BANFIELD: Are we done, though, because he's just sending that across the street to the Department of Justice.

TOOBIN: Yes, we're done.

BANFIELD: And we know that Loretta Lynch actually does operate autonomously, has done things differently than her administration perhaps at times has wanted. She does have that degree of separation. You're sure we are done?

TOOBIN: Done. Done. There is - I cannot think of a circumstance where the FBI has recommended no charges -

BANFIELD: And the DOJ has gone ahead.

TOOBIN: And the DOJ has gone forward in anything roughly comparable to this.

BANFIELD: Politically speaking, the - the FBI director is saying no reasonable prosecutor, no -

TOOBIN: Right.

BANFIELD: Not - not one. Not few. He said no reasonable prosecutor -

TOOBIN: Right.

BANFIELD: Would have gone ahead. What if there would have been some maybe prosecutors within his very large department who differ?

LOUIS: Unreasonable prosecution.

TOOBIN: Well, I mean that - this is what -

BANFIELD: Well, isn't he kind of handcuffing them to something they may not be want to be handcuffed to?

TOOBIN: But this is why we have an FBI. I mean the FBI makes a lot of value judgements like that. I mean, you know, when I was an AU - an assistant U.S. attorney, I would work with FBI agents all the time and I would say, do you think we have a case here? And hundreds of AUSAs do that every single day. And it's a collaborative process. But I have never heard of a case when the prosecutor said, you know what, we're going to go forward even though you, Mr. FBI Agent, think there's no case here.

BANFIELD: Yes.

TOOBIN: I just - I mean I'm sure it has happened in the history of the Justice Department, but -

BANFIELD: And maybe it's the evidence issue as well and he's not talking about your attitude, he's talking about, what do you have to go into court with, even if you believe something happened but you don't have the goods, that's how they make these choices (ph).

TOOBIN: That's exactly - that's what he's talking about. Absolutely. And by the way -

BANFIELD: Well, you don't know, but you assume.

TOOBIN: By the way, remember who Jim Comey is. Jim Comey is a former deputy attorney general.

BANFIELD: Yes.

TOOBIN: He is a former United States attorney in the southern district of New York, in Manhattan. So he has been on the other side of the table many times making those judgments with FBI agents. So he's uniquely situated to be able to make a judgement like that.

BANFIELD: That he's also uniquely situated in the administration right now too, I think a lot of people will say, and that's where the politics come in.

TOOBIN: Well, he's - remember, he's not a - he has a tenure appointment -

BANFIELD: True. True.

TOOBIN: That continues beyond whoever succeeds Barack Obama.

BANFIELD: So you just know, when I say good news, bad news to you, that this is going to be parsed in every single solitary way, including the Twitter universe. Errol, Jeff, thank you for your help. Errol, I'm going to get you to stick around because the politics of all of this is coming up.

Just after President Obama and Hillary Clinton hit the campaign trail in North Carolina, Donald Trump is also going to take stage there, center stage, after he continues to defend some tweets of his own where people have questioned his judgment because they showed a six- pointed star, many saying the Jewish star, the Star of David, and Hillary Clinton, with scatter hundred dollar bills. A lot of people saying offensive. He's saying, are you kidding me? Lots of stars have six points.

[12:15:12] All right, it's the battle of the judgment today, folks. We're back after this.

(COMMERCIAL BREAK)

BANFIELD: Once again our breaking news this hour. The FBI director saying just in the last hour that his agency is not going to recommend charges to the Department of Justice against former Secretary of State Hillary Clinton over the use of her personal e-mail servers, plural, while she was serving as secretary. James Comey did say, though, he thought that Mrs. Clinton and her aides were, quote, "extremely careless," in how they handled the e-mails and that kind of sensitive information.

We are also watching North Carolina, because that's where she is right now. And she's with him, as a turn on her expression. She is with the president today and he's about to make his first campaign appearance with her. And she caught a ride, in fact, on Air Force One with the president as the left Washington, heading there, a rally in Charlotte, North Carolina.

Mrs. Clinton starting her day, however, not as fun. She was in Washington where she spoke to the National Teacher's Labor Union, the biggest in the country. She made no mention of that big news right off the top of our show, the FBI's decision on her e-mails and not to recommend charges.

[12:20:17] Now, Donald Trump, for his part, is also going to be competing with a rally in Charlotte, North Carolina, tonight. He's going to be there With Tennessee Senator Bob Corker, one of Donald Trump's possible VP choices.

A new national poll is showing that Hillary Clinton is holding on to her lead over Donald Trump, though it does appear to be narrowing. Secretary Clinton leads Donald Trump 46 percent to 40 percent in a "USA Today" poll. The same poll that was done two months ago had a bigger spread. Mrs. Clinton was leading Mr. Trump by 11 points in that particular matchup.

We have full coverage for you on this. Our White House correspondent, Michelle Kosinski, is also on the road today. She is currently in Charlotte. And with me here in New York is correspondent Jason Carroll and CNN political commentator Errol Louis stays with me.

So I think I had my timeline mixed up a little bit, Michelle. I said that she's already hit it. I don't think she's jumped onboard Air Force One for that fancy ride down to North Carolina with the president. And I start with that because it is a fancy ride and it is not lost on her opponent. He's all over the twitters about what it costs to do this kind of thing for me, a taxpayer, and Donald Trump doesn't think that's fair. So set the context for that kind of travel.

MICHELLE KOSINSKI, CNN WHITE HOUSE CORRESPONDENT: Yes, I mean, that was sort of the critical rebuttal to this appearance today, before all of this happened. But look at the timing of this announcement now. You almost can't make this stuff up. I mean this is two hours before the president boards a plane with his former secretary of state, it's about an hour away from where we are right now, but can you imagine the difference? This is good news for them considering what the alternative would be, for them to get up on that stage together and, if she had been recommended by the FBI for criminal charges, I mean, what would have to be said on that stage?

So, this is a sigh of relief. Although, granted, what the FBI said was in no way good, that she should have known better, that she and her team exhibited extreme carelessness. So Republicans, obviously, will want this to have as long a political legs as possible, focusing on that language and the mistakes that were made, whereas the president and Democrats will want to diminish this and move on as quickly as possible.

I think what's likely to happen here is that the president will let her speak. It will be interesting to see how this is addressed on the president's first day out on the campaign trail. Let her say whatever she's going to say about this development, and then he can focus on her record, her qualifications, contrast her with her opponent and the things that he's said that the White House and Democrats are diametrically opposed to.

And the White House is also going to have to respond to this, though. I mean the White House on board that plane about 1:30 this afternoon is going to face questions from reporters. And we'll be able to hear that weigh in later on. But what the White House has focused on in the past, when questions were raised about this situation, was to look at it from the perspective of, you know, what the FBI said, that there was no evidence of willfulness or intent to mishandle information and the fact that Secretary Clinton has said she made a mistake, that they will focus on her moving on from that mistake and now on the campaign trail with President Obama.

Ashleigh.

BANFIELD: So this - this story that you're covering, Michelle, is sort of taking over for another big campaign trail story that sort of plagued the headlines all weekend long and it had to do with a tweet that The Donald sent out and it had a picture of Hillary Clinton with a six-point star, many call that the Star of David, saying crooked Hillary, perhaps the most crooked, I'm sort of paraphrasing it, but it was scattered hundred dollar bills all throughout it. There you have it, "most corrupt candidate ever."

It didn't take a nanosecond before people said that is anti-Semitic. And it got switched to this. The original tweet was deleted. The Star of David image, if that's what you call it, was erased and was replaced with a circle instead.

Now, for the Trump campaign's part, they said it wasn't a Star of David, it was a sheriff's star that they - you know, it's the kind of thing you could find on any, you know, web-based image searching thingamajigy on the Internet.

But, Jason Carroll, that's not true. I mean this specific image had come from a bigoted message board, I mean identical, the dollar bills, the star, the image of Hillary. It wasn't just an accidental, I found a star and I put it there.

JASON CARROLL, CNN CORRESPONDENT: Well, that's one school of thought. If you talk to those from the Clinton - from the Trump campaign, they will tell you that they have a different school of thought. And the person taking the fall for this, a man by the name of Daniel Scavino (ph). He is the social media director for the Trump campaign. He's the one who said that he found that particular image. He said he got it off of Microsoft Shapes, not a Jewish Star of David. He said, as you said, that it was basically a sheriff's badge. He said, quote, he also lifted it from an anti-Hillary Twitter user where countless images appear and not sourced from an anti-Semitic site. Of course, that doesn't sort of explain why just some -

[12:25:19] BANFIELD: It's identical.

CARROLL: It's identical to a similar image that was found on an anti- Semitic neo-Nazi site 10 days ago. It was posted 10 days ago.

BANFIELD: Yes, but can I just-again, it's not just the star that was lifted.

CARROLL: Right.

BANFIELD: It's the whole compilation image, which is why a - it's a little to coinky-dinky (ph) to say that that was - I just found that star and threw it up there. The whole image, the whole compilation was found on a bigoted website.

CARROLL: Well, clearly, they knew that it was offending some people. That's why they changed the star to a circle.

BANFIELD: The speaker of the House is not happy about this. CARROLL: And the speaker of the House, Paul Ryan, saying that, look,

given the problems that the Trump campaign has had in the past with tweeting and issues of tweeting, he said something today that really speaks to this issue. He basically criticized the Trump campaign, not my words. I want you to listen to what he had to say this morning.

(BEGIN VIDEO CLIP)

REP. PAUL RYAN (R), HOUSE SPEAKER (voice-over): Look, anti-Semitic images, they've got no place in a presidential campaign. Candidates should know that. The tweet's been deleted. I don't know what flunkie put this up there. They've obviously got to fix that. We've got to get back to the issues that matter to the public."

(END VIDEO CLIP)

CARROLL: Well, that, quote/unquote flunkie again was the man by the name of Daniel Scavino. He is the campaign's social media director. He basically said, put something out that said, look, those people who are saying that he was anti-Semitic, he said, "for the MSM," that would be the mainstream media, "to suggest that I am an anti-Semite is awful. I probably celebrate holidays with my wife's amazing Jewish family for the past 16 years."

BANFIELD: And his daughter also - well, Trump's daughter also converted to Judaism. His son-in-law is Jewish as well. So there's that that he often brings up as well.

CARROLL: Sure.

BANFIELD: Can I go back to North Carolina for a minute. Why is this such a big deal? Why is everybody in North Carolina today and - because there's plenty of swing states out there. So why North Carolina?

LEWIS: Well, it's an important swing state and it's a swing state that has swung. President Obama won it narrowly in 2008. He lost it narrowly in 2012. Democrats and Republicans want to know, is North Carolina going forward, going to be a red state or a blue state? It's a state where, when President Obama goes today, I will be listening and we should expect him to talk about the economy. The numbers just came in today about last month and unemployment fell in 98 of North Carolina's 100 counties. I think the president will sort of wave that around as evidence that his economic plan has worked.

BANFIELD: But are more - are North Carolinians likely - not to suggest you have a crystal ball - but are they more likely of a demographic to seize on what happened with the FBI director today or are they going to seize on what President Obama says about the economy, or are they going to seize on what Donald Trump later tonight says about rest belt economics?

LOUIS: For a lot of different reasons, local, that I won't go into, they have a very polarized electorate right there right about now. So I think people, you know, say around the military bases in North Carolina, they are going to, I think, go more in the direction of James Comey has explained why Hillary Clinton is unfit to be president. The bright blue Democrats who are in other parts of the state are going to say otherwise. And I think it will be also I think a great laboratory for us to see. The two campaigns are going to be sort of having dueling rallies on the same day. You won't get a better chance. And the polling that follows after I think will sort of support it, a better chance to sort of see, Hillary and her surrogate, the president of the United States, versus Donald Trump and his perhaps vice presidential pick.

BANFIELD: So in this crazy campaign year, I can then safely say it's still swingy-dingy, right, Errol Louis? We'll just leave it there.

LOUIS: Technical jargon, yes.

BANFIELD: You've got to make the news funny sometimes. Errol Louis, thank you. Jason Carroll, as always, thank you.

LOUIS: You got it.

BANFIELD: And, Michelle Kosinski, she's probably run off, nope, she's there, good - good job today and I know you've got more work ahead of you. We'll continue to tap into you throughout the rest of the day, Michelle. Thank you all. Appreciate it.

Coming up next, Ramadan is coming to a close, so does that mean an end to the rash of deadly terror attacks that have gone global? Images like this all over the world. Cafes, airports, shopping areas, even holy sites, the holiest of them, attacked. I'm going to take you live to the Middle East and get an assessment, next.

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