Former national security adviser Susan Rice was entitled to ask that the names of President Donald Trump's transition team members be unmasked as part of her position, but to reveal their identities, if it was for a purpose other than national security, could be considered "espionage," Judge Andrew Napolitano said Monday.
"It depends on what she did with the information she unmasked," the Fox News legal analyst told the "Fox & Friends" program, after he was asked if he thought Rice had broken any laws.
"She is entitled to this, because she, as the president's national security adviser had the highest level of national security clearance."
Giving an example, this means if Gen. Michael Flynn was speaking to Russian Ambassador Sergey Kislyak, and the conversation came up as part of surveillance because the government wat tracking Kislyak, Rice could access Flynn's name.
"If she needs to know to whom the ambassador was speaking, in order to understand the conversation, she can do that," said Napolitano. "Can she reveal the identity of the American for a purpose other than national security? Absolutely not."
Further, if Rice had gotten the names and then said to President Barack Obama "by the way, guess what Trump and [Paul] Manafort were talking about last night," that would be "espionage," said Napolitano.
"That's called the failure to safeguard top secret information," he told the program. "The identity of Americans incidentally caught up is otherwise lawful surveillance is protected by the top secret protection, the highest level of classification of secret he is that we have.
"This is the same crime that Hillary Clinton probably committed by her failure to safeguard top secret [information] when she was secretary of state."
The FBI must examine the reports concerning Rice, and challenge her about why she needed the information about the Trump team, and what she did with it, Napolitano continued.
"It's also hacking and it's espionage, each time it's done," he said. "She only had one boss. She only reported to one person. We all know who that was. That was the president of the United States."
Even should Rice claim she obtained the information for national security reasons, the FBI should challenge what she is saying, said Napolitano.
"Think about what happened," he said. "The president of the United States and his national security adviser were obtaining transcripts of the president-elect and his potential national security adviser and other transcripts.
"Could you imagine if [President] George W. Bush and Condoleezza Rice had done this to President-elect Obama? The political earthquake would still be palpable."
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