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Last night at a Fox News Democratic town hall, Hillary Clinton said of her private email server, "Nothing that I sent or received was marked classified."

On "Fox and Friends" today, Judge Andrew Napolitano said that Clinton was playing a word game, because nothing is marked "classified."

"It is marked 'confidential,' 'secret' or 'top secret,'" Judge Napolitano said, adding that Clinton signed an oath her first day in office, in which she said she understood her legal obligation to know what is secret whether it's labeled so or not.

He explained that what makes something secret is not the stamp it has on it, but the essence of the email.

"Does it contain information the revelation of which could harm national security?" Judge Napolitano said, noting that photographs of a North Korean nuclear facility and the names of U.S. spies - both of which were in Clinton's emails - would clearly fall in that category.

Could Clinton reasonably claim that she didn't know what was classified or not classified, or that the State Department "over-classifies"? Brian Kilmeade asked.

"This is a rare federal crime where the government doesn't have to prove intent," the judge said. "You can commit the crime by gross negligence."

Why would she do this and put so many lives at risk? Ainsley Earhardt wondered.

"Because she wanted to hide from the rest of the State Department what she was doing in Libya," Judge Napolitano said. "And because she wanted to hide from us - via the Freedom of Information Act - what she was doing as secretary of state."

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