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AT THIS HOUR WITH BERMAN AND MICHAELA

FBI Not Recommending Charges Against Clinton; RNC Responds to James Comey Recommendation of No Charges Against Clinton. Aired 11:30a-12p ET

Aired July 5, 2016 - 11:30   ET

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


[11:30:00] JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST (voice-over): But it was always going to be very unlikely that Hillary Clinton, well prepared by her lawyers, was not going to incriminate herself. Her interview was the climax of the investigation but certainly the evidence was not the key turning point.

JOHN BERMAN, CNN ANCHOR: We have Evan Perez on the phone with us, our Justice Department reporter.

Evan, you've -- I'm sorry, Evan Perez is with us live right now.

Evan, you've been reporting for some time, you sources have been telling you, that no charges were likely, it all depended on the three-hour meeting which just took place this Saturday. I want to get your reporting on this in a second, but I also want to get to the fact that just the specifics here, the FBI director is recommending no charges be filed. The final decision is that the final decision comes from the Justice Department and the attorney general who says she's the recommendation. Is this a fait accompli?

EVAN PEREZ, CNN JUSTICE CORRESPONDENT: Apparently, it is. We have to wait for the prosecutors across the street at the Justice Department to make that final call. Comey's investigators spent a year looking at this server. He described it as putting together a jigsaw puzzle because there were so many pieces, so many servers, so many devices Secretary Clinton used during the time she was secretary of state and carelessness with which they used it. The carelessness with which they treated the security of the classified information that was on their systems. One of the key parts of this, though, was at the top of Jim Comey's statement in which he says, referring to people across the street, the political leaders across the street at the Justice Department. He says they do not know what I'm about to say. That was his signal to the public, really to reassure them that the FBI has been doing its investigation on its own, independently. Obviously, they've had the oversight of the Justice Department all along, but it was very important for him to come out given the swirl of speculation and give the fact that the secretary was here on Saturday doing her interview. He wanted to assure the public that what he found was an independent finding, was something that the political people across the street aren't going to be able to change, so to speak. Now we wait for the Justice Department to make its official announcement -- John?

KATE BOLDUAN, CNN ANCHOR: Evan, do you get the sense that the FBI director caught people off guard with this announcement today?

EVANS: Yes, he did. I think that was very much unexpected. Folks across the street I think were expecting the FBI would spend at least a week reviewing what Mrs. Clinton said in her interview on Saturday here at FBI headquarters, that it would take a little while to go through all that, compare it to all the other evidence they've collected. It appears that work was going on during the weekend and they were able to make that conclusion now -- Kate?

BERMAN: We're watching former Secretary of State Hillary Clinton. She is speaking right now in Washington, not about this. As far as we know, she has not brought up the investigation and what the FBI director said. We do know she was delayed. She waited for some time to begin the address. We can only imagine that she and her aides and the entire campaign were watching CNN --

BOLDUAN: She was watching us.

BERMAN: Yes, watching us very carefully to find out what would happen. As the FBI director said, no one knew what he was going to announce.

I want to bring in national security correspond, Jim Sciutto.

Jim, based on that 15 minutes from the FBI director, we learned a lot about how e-mails were handled during Secretary Clinton's time during secretary of state or, as the FBI director said, mishandled. It was extremely careless the way e-mails were passed, with more than 100 e- mails marked classified being sent on the private server and eight marked top secret at the time they were sent.

JIM SCIUTTO, CNN CHIEF NATIONAL SECURITY CORRESPONDENT: No question. First, that defeats an essential Clinton campaign argument from the beginning, which had been none was either marked classified or deemed classified at the time, and was deemed later. Why does it matter? What are the big questions is when you mishandle classified information, who then has abscess to it. As Director Comey said, one of their key questions they were trying to get answered, did foreign governments, did foreign actors get access to this classified information? His answer was there was no direct evidence that her servers, plural, not just one, were hacked successfully. He went on to say because of the actors we're talking about here, Russia, China, others, they would not likely see direct evidence that it was. He went on to say they do know the servers and e-mail of people Hillary Clinton was corresponding with, other foreign leaders, former U.S. officials, et cetera, were compromised by foreign actors. He was all but saying that this classified information was exposed to foreign actors, that they didn't see direct evidence but they wouldn't likely see it because these guys were very good at covering their tracks, and they do know people she was in touch with and thereby sharing some of this information or exposing some of this classified information, they were compromised. Almost saying we have to assume that some of this information was compromised because of the servers she used, the private servers she used. It's a really key part of this because it gets to why classified information has to be handled correctly by all people with security clearance. [11:35:18] BOLDUAN: Absolutely, Jim.

We want to welcome our viewers around the United States and the world as we continue to follow this breaking news.

As you see at the bottom of our screen, FBI Director James Comey coming out to say they are not recommending charges against Hillary Clinton following their investigation into her use of private e-mail server?

With that, let's bring in Wolf Blitzer once again.

At the end of his remarks, Wolf, the FBI director took time to try to drive home the point that he said their investigation was conducted honestly, competently, independently, and without any influence from the outside. He went to lengths to try to make that case, almost to the extent that Evan Perez said his announcement caught a lot of people off guard. You know how Washington works. Not knowing the theme of a press conference is not something that's very typical.

WOLF BLITZER, CNN ANCHOR: And he is highly respected. People have to appreciate that James Comey, a former U.S. attorney, he is highly respected by Democrats and Republicans, liberals and conservatives, because he has an outstanding record over the years of going where the law tells him to go. Now he's the FBI director. He's got a long term there as the FBI director. He doesn't have to worry about another president coming in. He can serve out his 10-year term as FBI director. He is highly respected.

But when he says there was classified information on that server, even if it had not been formally marked classified, anyone in a position of government should have known it was classified. It wasn't just low- level confidential information which is classified. That's the lowest level of classification. But then there's secret, then there's top secret, and then a category above top secret. There were some e-mails that were there that were at that top level above top secret. When he says that information was there, it was potentially available for foreign hostile powers or anyone, for that matter, to go into those private servers and compromise that kind of information, that is a severe, severe slap at the way Hillary Clinton was running that server while she was secretary of state for four years, and her aides were obviously very well aware all this information was on this private server. So when she says that no information was marked classified when it was sent or received, she may be precise words. But he says anyone reading that information should have known it was secret, top secret or even secure compartmented information which is even more sensitive.

BERMAN: In fact, we know more than 100 were marked classified at the time, according to the FBI director.

(CROSSTALK)

BERMAN: Eight marked top secret. Even those that weren't, Wolf, as you point out correctly, they should have known they were classified, the FBI director said. By "they," his implication was that the secretary of state should have known. However, the FBI not recommending charges against FBI.

Wolf, stand by.

I want to bring in Sean Spicer, chief strategist for the Republican National Committee and communications director.

Sean, thank you for being with us.

I want to get your reaction to the news today.

SEAN SPICER, CHIEF STRATEGIST & COMMUNICATIONS DIRECTOR, REPUBLICAN NATIONAL COMMITTEE: I think these findings by the FBI are a clear indictment on Hillary Clinton's judgment and fitness to be president. The office she is seeking requires the highest level of judgment, making sure our nation's secrets are protected, but also creating a culture where people understand the importance of that. What the FBI director laid out today was clearly someone who doesn't understand the importance of our national security, puts themselves ahead of the rules. I think this is a major problem when it comes to the judgment she would exhibit as president of the United States. This is a true indictment on her fitness to be president.

BOLDUAN: An indictment on her judgment and fitness, however, not an indictment.

(CROSSTALK)

BOLDUAN: You heard from James Comey that no reasonable prosecutor -- no reasonable prosecutor would bring this case. You accept that, right? You trust they conducted this in an apolitical fashion. You trust this investigation was conducted honestly?

SPICER: I think if you look at the first 14 minutes of what the FBI director laid out, as Wolf and others have said before, you had thousands of e-mails that were not turned over. She signed a document under the threat of perjury that said she turned over every e-mail. That was not true. She sent hundreds of e-mails at the highest level. Whether or not she formally prosecutes her is one thing, but the director made it clear people are penalized for this and this is not acceptable. Another important factor is the culture at the State Department she oversaw, the director made it very clear, was one that did not understand the importance of --

(CROSSTALK)

[11:39:55] BOLDUAN: Sean, do you trust that the FBI --

(CROSSTALK)

SPICER: This is someone that wants to be president, Kate.

BOLDUAN: Thank you. I know.

But do you trust that the FBI conducted a fair investigation? Do you trust that?

SPICER: Well, it sounds like it. Again, it sounds like the findings they made are clear that she did exhibit poor judgment, it was reckless by their account, and it is not their job to decide whether or not it formally is prosecuted, which he made clear. I think any reasonable person who hears these charges, however, can't conclude anything otherwise, that this is a clear violation of the law and that it should be. Whether or not -- past history, somebody who created this culture out of their own desire to protect themselves, own desire not to follow the rules but they wanted to be clear they had a set of rules for themselves, clearly, A, I think the bigger issue is, is she fit to be president of the United States? Clearly, the answer is no.

BERMAN: Sean, your candidate, Donald Trump, the presumed Republican nominee, just tweeted. He said, "The system is rigged. General Petraeus got in trouble for far less. Very, very unfair. As usual, bad judgment."

Just to be clear, FBI Director James Comey, he said there is no evidence here that Hillary Clinton or others intended to violate the law. He said other times and other cases, including presumably David Petraeus, he says when there is prosecution brought, they found evidence of a willful intention to violate the law or the sheer amount of material that was transmitted was of such a huge amount that they had to bring charges. He said in this case neither were evident.

SPICER: I'm not a lawyer, but the entire reason she set up this secret servers, which we are now learning was multiple, is because she wanted to avoid detection, wanted a system for herself. If she followed the law like everybody else and used a State Department account or used even a private system like the director pointed out, like Gmail, this wouldn't be a problem. She chose to set up a system for herself around the rules that were set up for everybody else for a reason. That reason is because she didn't want people to know what she was doing. Just this weekend, we found out Huma Abedin testified she burned daily schedules. Secretary Clinton went into this position and set up this server clearly intending to avoid detection, clearly trying not to be transparent, and clearly trying to set up rules for her that were different than what everyone else has to follow. Any other employee that works at the State Department that did what she did would have their security clearance pulled and would be facing charges. This is absolutely ridiculous.

BOLDUAN: One thing I want to clear up, because Donald Trump in his tweet called this very, very unfair. Do you think the investigation was fair, or do you agree with your candidate who thinks it was very, very unfair?

SPICER: I think the investigation and the facts laid out by the director sound very thorough. They went through everything and the evidence he laid out sounds like unequivocally a clear violation. There's two issues here. One, the investigation and, two, the conclusion. I think the investigation sounds thorough.

(CROSSTALK)

BOLDUAN: You have to accept them together though. You have an investigation going on --

(CROSSTALK)

SPICER: No, no, no.

BOLDUAN: Don't you also have to accept the recommendation of the fair investigation, that he says we're --

(CROSSTALK)

SPICER: No, because I also think -- as the FBI director made clear, that's not their job. Their job is to do the investigation, hand it over to the prosecutors at the Department of Justice. I think the point that Mr. Trump is making is you have General Petraeus who gets a fine and faces penalties. We have yet to see what the Department of Justice does. But we already know that Hillary Clinton -- the former president met with Loretta Lynch. So you're turning this evidence over to the Department of Justice that you have to question what going on here. They had a private meeting last week. What happened in the meeting? What really was said between President Clinton and Attorney General Lynch? But the system looks like when the FBI turned it over, the Department of Justice has made it clear what they're going to do --

(CROSSTALK)

SPICER: -- the fact that she won't face penalties is ridiculous.

BERMAN: Sean Spicer, thanks so much.

Remember, Loretta Lynch, who had a meeting with Bill Clinton, says she's removing herself from the process and will accept the recommendation from the FBI director, who recommends no charge also be brought.

We have to get the final word from the Justice Department on that. I presume that will come soon.

I want to bring in David Axelrod.

You've been listening to RNC strategist, Sean Spicer, clearly making clear that Republicans do intend to use this as a political issue going forward, saying it is an indictment on the judgment of Hillary Clinton. How is it not such?

[11:44:46] DAVID AXELROD, CNN SENIOR POLITICAL COMMENTATOR (voice- over): It's interesting was the juxtaposition of Donald Trump's statement and Sean Spicer's statement. Sean Spicer took the words of the FBI director and used them, as you would expect the opposition to use them, and honed in on what Comey called the carelessness and recklessness and so on. That's to be expected. I think it's dangerous to do what Donald Trump did, which is to say the system is rigged, to say that -- to suggest the thing was fixed. This de- legitimization of our institutions, particularly the investigative justice system, is very, very -- it's a very irresponsible thing to do. Jim Comey is widely respected as a guy of integrity. He's proven it not just recently as FBI director but when he was in the Justice Department and took some very courageous stands against the White House on some matters. It was interesting to me that Sean Spicer didn't color out of those lines. He tried, after you read him Trump's statement to circle around a little and square the circle.

But it is fair game for Republicans to question Hillary Clinton based on the words of the FBI director. It's not fair to say, well, Petraeus -- Trump has said repeatedly Petraeus got in trouble for far less. General Petraeus gave classified information to his biographer, with whom he was having a relationship knowingly, and he pled guilty to charges related to that. What he did was far different than what the FBI director suggested. So to say she should have been treated the way he was, it's just flat out wrong.

I thought Spicer was very -- he colored within the lines of what is responsible political discourse. What Donald Trump is doing is not.

BOLDUAN: David, hold on one second.

Let's talk more about those comparisons between General David Petraeus and what happened in his circumstance and what we're seeing with Hillary Clinton.

Let's bring back Evan Perez.

Evan, you know both cases very well. Donald Trump's tweet, one of them saying for our viewers again, the tweet said, this is his reaction to what was announced, "The system is rigged. General Petraeus got in trouble for far less. Very, very unfair. As usual, bad judgment."

How are these cases similar? More importantly, how are they very different?

PEREZ: He's right, this is about judgment on the part of Hillary Clinton and David Petraeus. But the cases are far, far different. We're talking about, in the case of David Petraeus, he took classified information, things about troop movements and things that really had no business leaving a safe. He had a safe at his home where he kept this information, and he provided it to his lover, to his girlfriend he was having an affair with. That's a far different thing from being careless about setting up a private server in your home. Obviously, as Jim Comey pointed out, this is something that secretary of state Clinton should never have done. And the fact that she and her aids and her colleagues all knew about the security levels that they had put in place for this server, they knew that they were taking chances with classified information.

The issue of the intent is what Jim Comey really centered on in his comments. He said it's clearly not willful or intentional, and that's one reason why he said no reasonable prosecutor would choose to bring charges in a case like this.

Obviously, there's plenty here for you to criticize Secretary of State Clinton. As he pointed out, as Jim Comey pointed out, people who do this kind of thing, who mishandle classified information like this, typically have some kind of administrative or security sanction. That means they might have their security clearance pulled. Obviously, if she becomes president, if she gets elected as president, she'll be the ultimate authority on classification and security clearances. It's going to be hard for a person serving in the White House to not have a security clearance.

BERMAN: That is one interesting part of this.

Evan Perez, stand by.

I want to go to Charlotte, North Carolina, where we find White House correspondent, Michelle Kosinski. Why? That's where Hillary Clinton will appear in a few hours with President Obama. One of the scheduling anomalies today is this will be the first public appearance side by side with President Obama, and Hillary Clinton as the presumed Democratic nominee.

Now, Michelle, it comes just hours after this stunning moment in Washington where the FBI director announced his findings in this investigation.

[11:49:51] MICHELLE KOSINSKI, CNN WASHINGTON CORRESPONDENT: Yes. Look at the timing of this for the White House. Two hours away from the time that President Obama is going to get on a plane on Air Force One with his former secretary of state, arrive here at this rally in North Carolina, his first day on the campaign trail. Can you imagine the difference this would make, him getting on that stage with secretary of state rebuked by the FBI and facing criminal charges.

I mean, at the same time, though, look at this, this is still a rebuke by the FBI saying that that information as no business being on her private server, that she should have known better, and that her State Department was extremely careless in handling this extremely sensitive information. So obviously the other side says even the possibility that this could have been criminal charges says a lot. And this is still a mark with political legs that not only she but the White House is going to have to deal with. So this has to be addressed today.

I think what the White House will do is focus on what they have on the past, focus on the fact that the FBI says there was no evidence of this being intentional and also make mention of the fact that Clinton herself has said in the past that this was a mistake, almost humanizing it, saying that everyone makes stakes, she realized this was a mistake, she said it was a mistake and now it's time to move on. The White House isn't jumping out right now with a statement or reaction to this. We're going to have to wait a little while. There's going to be a statement on board that plane, likely around 1:30 this afternoon, when the White House will respond to all of the questions about this.

I mean, a big sigh of relief for everyone involved that this is not a situation where we're talking about criminal charges, but, again, a big issue that is going to need to be addressed.

BOLDUAN: A sigh of relief, but then it's not over, really, when you look at the political sense. Michelle Kosinski, in Charlotte for us, thanks so much.

We're going to discuss this much more but let's play one of the moments -- there are plenty of important moments that we heard from James Comey as he said there are no charges that are appropriate. But then there was this. Listen.

(BEGIN VIDEO CLIP)

JAMES COMEY, FBI DIRECTOR: Although we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling classified information, there is evidence that they were extremely careless in the handling of very sensitive highly classified information. For example, seven e-mail chains concerned matters that were classified at the top secret special access program at the time they were sent and received. Those chains involved Secretary Clinton both sending e-mails about those matters and receiving e-mails about those same matters. 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 matter should have known that an unclassified system was no place for that conversation.

(END VIDEO CLIP)

BERMAN: Should have known, extremely careless, no charges recommended.

Joining us, a Donald Trump strategist and Donald Trump surrogate, Susan del Percio; Republican strategist and former official in the Rudy Giuliani administration; Errol Louis, CNN political commentator and political anchor for Time/Warner Cable News; and Hilary Rosen, CNN political commentator and a Hillary Clintons supporter; and Bob Beckel, CNN political commentator and Democratic strategist.

Guys, thanks for joining us.

BOLDUAN: Guys, thanks.

BERMAN: Errol Louis, you know a strange thing is afoot, when a good day for you is when an FBI director tells you, you were extremely careless and should have known better.

ERROL LOUIS, CNN POLITICAL COMMENTATOR: Yes, and the people you corresponded with should have known better and the people who worked for you should have known better and this is a huge problem and it's not a crime. If that's the best that you can get away with, believe me, if you're on Clinton's team, you'll take it and try to move on to the next thing. You'll try to appear with the president and give your stump speech and try to move on and do what Hillary Clinton has often said that, number one, this is behind us and, number two, this is old news. She's going to try to turn this into old news as quickly as she can.

Of course, the people who never believed her -- we've already seen the Trump tweet -- the people who never believed her and have a political interest in making this seem as if this is the crime of the century will continue to do so.

BOLDUAN: We heard a preview of the Republican position coming from Sean Spicer when he said the first 14 minutes of the entire thing was James Comey condemning the actions of how Hillary Clinton and those around her handled that information. But still, a sigh of relief, and Hillary Clinton will want to put this behind her as quickly as possible. What does that mean for Republicans now?

SUSAN DEL PERCIO, REPUBLICAN STRATEGIST: She's not going to be able to put this behind her. We now know that she lie about classified information being sent and received. We know she lied when she said that there was -- that she got approval from the State Department to have that. And now we know that she lied that she did not hand over every single e-mail. That's what Donald Trump should be focused on. He doesn't have to focus on the rigged system. All he has to do is say she lied, she lied, she lied, and keep it in that message. I don't know what he was trying to do by going after Comey.

BERMAN: Hilary Rosen, the FBI director poked holes in the story that Hillary Clinton's been saying on the campaign trail. She did send classified e-mails, than 100, she did send e-mails that were marked top secret at the time, eight. This was not one device. It was multiple devices on multiple servers. She told a different story than she's been telling on the campaign trail, didn't she?

[11:55:37] HILARY ROSEN, CNN POLITICAL COMMENTATOR: First of all, let's say that she said she didn't knowingly do it. Here's the most important thing that Director Comey said. As Errol said, the people who want to find reason to disbelieve her will disbelieve her. The most important piece, though, of this day is that Hillary Clinton has already apologized for sort of the stuff that Comey was talking about. She owned it and admitted it and apologized 100 times for it. But what he clearly said today was that there was no mal-intent, there was no desire and they found no evidence that she did this to get around rules, and that, importantly, there was no attempt to cover anything up.

So what Susan just said that she lied about turning overall of the e- mails, what he specifically said was she turned overall of the e-mails she had but they found other e-mails that they didn't -- that they probably didn't have but they found them other ways.

(CROSSTALK)

DEL PERCIO: Because she deleted them. Come on.

ROSEN: Excuse me.

They also found that there was no mal intent from the people who cleaned and evaluated her server and those e-mails. If they thought that there was, if they agreed with the bull that Susan just said, they would have said that there was mal intent by those people who --

(CROSSTALK)

ROSEN: So Hillary Clinton supporters and, most importantly, Independent voters, who are trying to decide what is true and what matters in terms of judgment and honesty, will hear what the FBI said. She didn't intend to do this and when it was discovered, she didn't hide anything. Those are two very transparent and important comments for Hillary Clinton's -- --

(CROSSTALK)

BOLDUAN: Hand on, Hilary.

I want to get Bob Beckel in on this.

Hilary Rosen, Bob Beckel, thinks that they will go the side of Hillary Clinton. But we know one thing, Clinton herself has acknowledged in recent weeks that she has a trust issue with voters and what is often lost in politics is nuance. So if voters are needing to listen to the nuance that you're hearing from the FBI director and Republicans are going to say she lied, she lied, does Hillary Clinton still have a trust problem?

BOB BECKEL, CNN POLITICAL COMMENTATOR: Of course, she has a trust problem. Nuance isn't something the American electorate does much in the course of the day.

The other thing is that Donald Trump needs to change his hash tag from Crooked Hillary to Careless Hillary.

And the other thing I'd say is, ironically, Bill Clinton meeting with the attorney general at the airport caused such a furor, and it cause the secretary general would say, all right, I'm going to take the FBI recommendations. They got the recommendations today, and there's no prosecution, and I think that's fine.

As far as -- I don't agree with people about this being an unfortunate moment for Obama and Clinton. I think Obama can say, all the people that said I wasn't born in the United States, the birther people, are going to jump on Hillary Clinton, but it's not going to matter because of the FBI director. And a system rigged by Donald Trump is another example of what this guy just is stone-cold blind when it comes to political nuance, if you will.

BERMAN: We have about a minute left. What about that? The FBI director, James Comey, issued a scathing indictment of Hillary Clinton, laying out evidence that he thought no charges should be file, but do you think he did a fair investigation?

BORIS EPSHTEYN, REPUBLICAN STRATEGIST: I'm sure the investigation was fair. As an attorney, I do disagree there was an intent. In just setting up the server, there was clear intent. I don't see that gap in saying that reasonable people should have known this was against the law.

As far as what Donald Trump said, it's potentially brilliant. He's not talking to the lawyers or politicians. He's talking to the American people. He's saying, if this were any other human being, that person probably would have been indicted.

And also, very importantly, Comey --

BOLDUAN: So you think this is still very unfair?

EPSHTEYN: I think the result was unfair. But I do think it's important to know that what Comey stated is that Hillary Clinton should have been fired from her job, by, who? President Obama, as secretary of state. And now he's endorsing her for top job in the land? Seems to be it's quite off base.

BERMAN: All right, guys, thanks so much. Stand by.

A lot more coming up, including President Obama on stage with Hillary Clinton later on.

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

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

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