Judge Napolitano, Trey Gowdy: Hillary Could Face Email Criminal Prosecution

Hillary Clinton's use of a private email server and the FBI's role in the Benghazi investigation indicate the probe could result in criminal prosecutions, conservatives warned.

Trey Gowdy, the chair of the House committee investigating the Sept. 11, 2012, attack on the U.S. Consulate in Benghazi, Libya, told Fox News' "America's Newsroom" that the same prosecutors who investigated former CIA Director David Petraeus are investigating Clinton's email issues.

Gowdy said Clinton wanted to control information about the workings of her office while she was secretary of the State Department.

"She wanted to control access to the public record and she almost got away with it," Gowdy said.

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And while Gowdy was not saying if Clinton committed a crime, as "that was my old job" as a prosecutor, "I know her unique email arrangement is interfering with our ability of finding out what happened to the four Americans killed in Benghazi."

The FBI, the nation's "premier law service," will answer the questions of criminal intent, Gowdy said, "and you don't need a former prosecutor weighing in."

But retired Judge Andrew Napolitano, who is a chief judicial analyst for Fox News, was not so careful with his words, declaring the Clinton probe as a "criminal investigation" and that "the maximum penalty is 20 years" behind bars.

"That depends on how bad of problems this caused?" he said. "How bad were the secrets? Were assets hurt? The presumption is 20 years."

And the fact that the FBI is involved makes it a criminal investigation, said the retired judge.

"The FBI investigates for potential violations of criminal law and breaches of American national security," Napolitano said. "But given that the top secret, the highest level of classified information we have, was found on a non-government server, you could make the case easily she failed to protect national security secrets in a manner the law required her to protect [them], and that is the same crime the general [David Petraeus] was indicted and prosecuted and convicted [on]."

There is a significant difference between Petraeus and Clinton, though, Napolitano added. In Petraeus' case, it was confidential information that was being shared, but in Hillary's, "it is the highest classification."

Napolitano also pointed out that the Justice Department has revealed that the Chinese most likely hacked senior officials while Clinton was in office, and "if that happened, she made their job easier, putting the information on the [personal] server rather than routing it through a rather more secure, but still hackable, server in the government."

If Clinton tries to tell a jury that she made a mistake because the word "secret" wasn't stamped on sensitive communications, that will not be an admissible defense, the retired judge said.

"Before she became secretary of state she was required to go through a one-hour tutorial given by FBI agents, and she had to sign a record under oath after, realizing she had a duty to [protect] the secrets," said Napolitano. Instead, she "then ran them through a server that was unsecured."

Petraeus, an ex-CIA director and general who oversaw military operations in Afghanistan and Iraq, pleaded guilty earlier this year to a misdemeanor for mishandling classified information. Petraeus had shared eight "black books" of highly classified material, including code words, war tactics, the identities of covert operatives and even his private conversations with President Barack Obama with his biographer and mistress Paula Broadwell. He was sentenced to two years' probation and a fine of $100,000.

"The lady in the Department of Justice wears are a blindfold and holds a set of scales, and does so because she treats everybody the same," said Gowdy on Wednesday. "I was not part of the prosecution or defense team so I don't know all of the facts, but I know the same rules apply to people. I will have to count on the bureau and [Director] Jim Comey, who has a reputation for fairness."

Gowdy said he has many questions about Clinton's email server, which her attorney surrendered Tuesday along with a flash drive containing the information on it.

"Is the public record complete?" said Gowdy. "That is what we were asked to do, to find out what happened in Benghazi."

So far, every explanation Clinton has given "has been proven to be false," he said, including her claim that no classified information was on the email server, which was proven to be false with the discovery of four classified emails, including two marked "top secret."

Gowdy is mostly concerned, as chair of the Benghazi committee, with getting access to the records he needs for the job the House has given him.

"As you know, she is turning over the server, and usually the bureau doesn't ask but demands it happen," Gowdy said. "But she wiped the server clean and her lawyer self-selected the private record from the public record.

"My concern is getting access to every document I need to do the job the House gave me. I will let the other folks figure out the potential criminal conduct, and let others figure out the classified information part of it."

Gowdy still doesn't expect to get custody of the server itself for his committee's investigation, and in fact has not asked for it.

"We asked for it to be turned over to the Inspector General," said Gowdy. "We asked that in March and she said no. We want a neutral, detached third party to go through the server. I don't want to read yoga emails or emails about the bridesmaids' dresses. I don't need the server. I just need the documents I am entitled to."

Clinton's attorney, David Kendall, has said that it is Clinton's hope that the State Department and others sort out which emails are appropriate for public release and that she has pledged to cooperate, but Gowdy said he has his doubts.

"I know he is in the business of being paid to say absurd things," said Gowdy. "But if that was his and her intent, why did they set up this unique unprecedented email arrangement?

"Why did she keep the emails for 20 months and then decide they were too burdensome, so let me delete and wipe the server clean?"

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