Judge Andrew Napolitano challenged Hillary Clinton’s contention that former secretaries of state also used private email servers to conduct government business.
“My predecessors did the same thing,” Clinton said during Wednesday’s Democratic debate.
“Secretary Powell and Secretary Rice did nothing of the sort,” Napolitano told “America’s Newsroom” host Bill Hemmer on Thursday when asked to explain the legal distinction between the use of private emails and a private server.
“Her predecessors, and let’s identify them – Colin Powell and Condoleeza Rice – did not have servers in their own home," Napolitano said.
"The secretary of state has two email streams: a regular email stream and a secret email stream. Mrs. Clinton hired, at her own expense, an information technologist to divert both email streams to the home server. Secretary Powell and Secretary Rice did nothing of the sort.”
Napolitano also challenged Clinton’s statement during the debate that none of the emails sent or received through her private server were marked “classified”.
“We know and the FBI knows and she knows that nothing is marked classified,” Napolitano said. “And yet she continues to mislead the questioner…”
Clinton defended her use of a private email server when asked about it during the debate by Univision moderator Jorge Ramos:
“It wasn't the best choice. I made a mistake. It was not prohibited. It was not in any way disallowed. And as I’ve said, and as now has come out, my predecessors did the same thing – and many other people in the government.
"But here's the cut-to-the-chase facts: I did not send or receive any emails marked classified at the time. What you're talking about is retroactive classification."
Ramos asked Clinton if she had asked President Obama for permission to use a private server while serving as secretary of state.
“There was no permission to be asked,” Clinton replied. “It’s been done by my predecessors. It was permitted. I didn’t have to ask anyone.”
“If you get indicted, will you drop out?” Ramos asked.
"Oh for goodness, that is not going to happen," Clinton responded. "I'm not even going to answer that question."
The Department of Justice (DOJ) reportedly granted immunity to Bryan Pagliano, a former Clinton staffer who helped set up the server in her Chappaqua, N.Y. home in 2009.
In January, the State Department confirmed that 22 emails found on Clinton’s private server contained material that was considered “top secret” or beyond and therefore could not be divulged to the public.
DOJ and the FBI are currently investigating whether Clinton’s use of the private server violated federal law.
“Other secretaries of state may have occasionally used a gmail account to send personal emails, but there is no evidence that other secretaries of state sent top-secret, secret or confidential information through non-secure locations,” Napolitano said March 3 on his Fox News video series, Judge Napolitano’s Chambers.
“Mrs. Clinton hired a technology expert to divert a secret email stream in the State Department onto her non-secret server. No other secretary of state did that,” he said.