Don't miss Bill O'Reilly's Talking Points Memo on Hillary Clinton's emails, tonight at 8/11p ET, with reaction from both sides of the political spectrum.


What are the potential consequences for Hillary Clinton for using a personal email account during her time as secretary of state? 

On Wednesday, the House Select Committee on Benghazi issued her a subpoena for all communications related to the investigation.

Judge Andrew Napolitano sat down with Martha MacCallum to go over the two potential criminal investigations that the former First Lady could face. 

1. The less serious possibility is an investigation similar to what was brought against Gen. David Petraeus, who pleaded guilty this week for keeping classified documents in an unsecured location. The judge explained that in Mrs. Clinton's case, she kept classified secrets on a home server that was not secured by the government. Napolitano said there's no way Clinton did not have classified material on her home server, since she held the same security clearance as the president. That would only be a misdemeanor charge, however.

2. Napolitano said the far more serious charge would be a conspiracy to "conceal documents from government computers," which carries a penalty of three years in jail per document. A conviction on that charge would disqualify her from holding public office again. 

MacCallum asked whether anyone will actually get a hold of these documents through the committee's subpoena. Napolitano pointed out that in Petraeus' case, the FBI went in with a search warrant.

"When you subpoena, you don't know if you get everything," he said. 

Napolitano said right now the legal consequences for Clinton are hypothetical, since the government would need to decide to prosecute her.

"If somebody prosecutes her, the consequences are grave for her political future," said Napolitano. 

He said, essentially, Clinton turned the Federal Records Act "on its head."

"She kept the documents, she decided which ones were governmental, gave them to the government and kept her own," said Napolitano. 

Clinton tweeted last night that she wants her emails to be released.

Clinton's spokesperson has argued that all her emails to State Department personnel would have been preserved on government computers. 

Napolitano countered that the State Department shouldn't need to release them, since Clinton can do it herself. 

"She has the server, she has the emails, she can release them. She won't do that," he said. 

Watch the full interview above.


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