MICHAEL SMERCONISH, CNN HOST: Joining me now, two people I suspect with strong differing opinions, the first is former federal prosecutor, Joseph DiGenova, who’s worked from everything from the Jonathan Pollard spy case to prosecution of would-be assassin, John Hinckley, to the Clinton’s 1992 passport controversy. He joins me from the D.C. bureau.
And, Lanny Davis, a lawyer and crisis manager who served as special counsel to President Bill Clinton and who's most recent book is crisis tales, five rules for handling scandal and business, politics and life.
Lanny, it's easy to get lost in the weeds here. But here is what I think the fundamental question - did Secretary Clinton compromise classified security by storing classified material outside a secure system?
LANNY DAVIS, FORMER WHITE HOUSE SPECIAL COUNSEL, CLINTON WHITE HOUSE: No. I wish I could address the headline that you read and we'll get to that. But the answer to your question is no. The server that she stored her e-mails on, protected by both Secret Service, because it also resided in the home of a former president, was absolutely secure, and those who think the federal government has a more secure system ought to read the newspapers about the breach of security by Chinese and other hackers into the most sensitive federal government national security information.
So, to suggest that because she had it protected on a home server, that was less secure than the federal government opened apparently data system to the Chinese is not proven, as far as I’m concerned.
SMERCONISH: Joseph DiGenova, Kurt Eichenwald for "Newsweek", formerly of "The New York Times", himself says this is no Clinton scandal. This is a big snooze fest and, in fact, this is all about FOIA officials not the secretary of state.
Does he have it right?
JOSEPH DIGENOVA, FORMER U.S. ATTORNEY, DISTRICT OF COLUMBIA: No, he doesn’t. First of all, there was a compromise of national security information. When Mrs. Clinton made the decision to store all of her official government property on a private server in her private residence, that proved conclusively that she had violated her non-disclosure agreement, which she signed when she became secretary of state and agreed to receive classified information pursuant to certain government rules. Those e-mails were compromised because she never gave anybody a chance in the classification system to review them before they were sent.
That is what is wrong with her having a personal server. The problem was, from the beginning, Mrs. Clinton decided she was not going use government servers, she was going to use her personal server for one reason, to prevent disclosure to Congress, the courts, the press, and the public. It was designed to prevent disclosure.
But in so doing, she insured that classified information would be compromised and in fact it was.
SMERCONISH: Joe, what to Lanny's point that these materials were never marked until classified until after the fact.
DIGENOVA: And you know what? That's the reason, she should have never had a personal server, because if it had been a government server, she would not have been able to click "send" without that information having been previously reviewed by a government person who has responsible for classification.
The secretary made a decision that she was going to be able to do whatever she wanted, and she chose a server that was not secure. By the way, it doesn't matter that the Secret Service is standing outside of a door to protect the physical server, anyone can get into a server.
And Lanny's point that the Chinese got into the most sophisticated service in the federal government, almost insures categorically that they got into her server at her residence.
SMERCONISH: Lanny Davis, respond.
DAVIS: Well, first of all, I don't attack motives. Joe is doing that. It's up to him. I respect Joe, I often written nice things -
DIGENOVA: Whose motive?
DAVIS: Let me finish my point, Joe.
DAVIS: I want to mention four facts that are not included in "The New York Times" story or on your opening presentation.
Fact number one, you already mentioned that the inspector general said not deliberate, inadvertent is the word he used about Hillary Clinton's treatment of the e-mails, if there happened to be classified information.
Secondly, this is a post facto judgment. At the time, they were not labeled by the individuals. And you made that point. It was also omitted from "The New York Times" in its first story, and then cleverly tried to be corrected, even though it was in the inspector general’s report not labeled, the first story didn’t say that.
Number three, most importantly, the State Department and many other people disagree with the judgment on classification these are four e-mails about a FOIA argument. And there’s disagreement on whether they were classified. That, too, was omitted. The entire "Times" story never mentioned that the State Department was on record saying, no, these were not classified. Disagreeing with my friend Joe DiGenova.
And, finally, the notion of a criminal referral that went all over the Internet yesterday, published by "The New York Times", now retreating by "The New York Times" saying, well, a Justice Department official told us that, without naming the Justice Department official who got it wrong when referred to a criminal referral about Hillary Clinton.
So, how can "The New York Times" get that expression, criminal referral wrong?
SMERCONISH: Joe, wait, Joe, I want to ask a follow-up of Lanny before you get back that this.
Lanny, "The Times" says this was an unforeseen consequence of her unusual computer set-up. Wasn't it an entirely foreseeable consequence of the way she decided to handle her e-mail?
DAVIS: Well, I’m not sure it's foreseeable. Non-labeled e-mail, two years after she left office and maybe six years since she became secretary would be in some sector of the government, two I.G.s determining it to be classified for e-mails. How could she foresee her own State Department in a FOIA argument about their Freedom of Information Act also omitted this is a FOIA argument about the State Department's two I.G.'s judgment, and both of them may have respectful opinions.
How do you foresee that?
But one other thing, Michael, Hillary Clinton did say, in retrospect, she should have done it differently. She should have had two devices rather than one. Colin Powell, who I respect greatly had one device like she. He's omitted from the discussion.
It's always good to have wisdom by hindsight. My friend Joe DiGenova is great at that.
DIGENOVA: By the way, Colin Powell did not have a private server in his home which he conducted all government business. I mean, this is ludicrous comparison.
Number one, Hillary Clinton chose to have a private server thus making it impossible for people with a responsibility to vet classified information to review her material before it was sent. She clearly knew that was going to be the case, that's why she did it.
She knew that when - by the way, Lanny said in March of this year, that he thought that her server should be turned over to a third party for analysis -
DAVIS: Actually, that’s not accurate.
DIGENOVA: - so all of the e-mails could be looked in -
DAVIS: I did not say that.
DIGENOVA: Lanny, let me finish, please?
DAVIS: You just quoted me.
DIGENOVA: Lanny, I direct you to the March 8th, 2015 transcript of "FOX Sunday News" where you said - you thought it would be a good idea for some third party -
DAVIS: No, I did not.
DIGENOVA: - to review the e-mails.
DAVIS: No, I did not.
DIGENOVA: I’m sorry, Lanny, I just read it.
DAVIS: I said if there was a subpoena. Don't read omit the "If there was a subpoena", then -
DIGENOVA: Apparently, there were several subpoenas.
SMITH: I said, if there was a subpoena -
SMERCONISH: Gentlemen, I have another question. I’ve got a question for Lanny. Lanny -
DAVIS: Stick to your own talking points, but don't misquote me.
DIGENOVA: I don't have any talking points. I just have the facts.
SMERCONISH: Hang on. Lanny Davis, what should the attorney general, Lanny, what should Loretta Lynch do with this hot potato now?
DIGENOVA: Run for cover.
DAVIS: Well, the Justice Department is saying and everyone is saying, including the inspector general, that this is a civil dispute between the two agencies, the intelligence agencies and I.G.s versus the State Department over the Freedom of Information Act and that is not a criminal referral.
"The Times" has misled and still wouldn't withdraw its mistake and explain why it relied on an anonymous story -
SMERCONISH: Lanny, you know, I have to note. It's not FOX News. It’s not "National Review." It’s "The New York Times", not exactly a conservative bastion that's raising this issue.
DAVIS: Look, I consider "The New York Times" one of the great newspapers in the history of our country. And when "The New York Times" gets something wrong and it's possible, it's inadvertent error, they omit deliberately in today's story. That's an intentional omission, that, number one, they got wrong, that there was no labeling on these e-mails. They said it in today's paper. Yesterday, they said it wasn’t clear. There's a direct statement by the I.G. These e-mails were not labeled.
That goes to Mrs. Clinton's intent. She sees an email. She forwards it to somebody. It goes to the State Department person that's part of the State Department system to suggest that's a deliberate, intentional mishandling of classified information which "The Times" did, they can get things wrong, but they’ve got to make the correction and admit they got it wrong and they didn't.
SMERCONISH: Gentlemen, I wish - I wish we had more time. Joseph DiGenova, Lanny Davis, thank you so much for being here.
DAVIS: Thank you.
DIGENOVA: Thank you, Michael.