SHEPARD SMITH (HOST): In a nutshell, judge, as I mentioned what we have is there was a closed investigation -- whether technically closed or not the FBI director came to the decision to file no charges. Then they got some new information. Now it's sort of re-opened. Beyond that what do we have here?
ANDREW NAPOLITANO: Well it sounds like -- just to underscore what Ed Henry just told us all, it's extremely unlikely that this would be resolved to the satisfaction of law enforcement before election day. Remember, no grand jury was ever convened in the Clinton investigation. And it would be nearly impossible to convene one now and present sufficient evidence to it to get it to do something, either to indict somebody or to agree there's insufficient evidence to indict anyone. So, what I see in all this, and the people with whom I've spoken and all this is buttressed by the great and last-minute and up to the minute information that Ed just shared with all of us is that the FBI does not know the classified status of this just from looking at it, and it needs to share it with members of the intelligence community who will say, this is either confidential, the lowest level, secret, the mid-level, or top secret, the top level. And listen it may by something that Mrs. Clinton sent to Huma Abedin and then she shared it with her husband which, of course would not be anything that Mrs. Clinton could be blamed for. It could be something that contradicts what Huma Abedin or Cheryl Mills said to the FBI in their interviews with the FBI. And so the FBI could be looking for potential charges of lying to the FBI, not against Mrs. Clinton --
SMITH: Now, now, judge, what the FBI director said is he doesn't know if the matters are significant yet. They have to delve into them before they can know whether they're significant.
NAPOLITANO: Correct. That's why I suggest people should not jump to conclusions that Mrs. Clinton is being reinvestigated for the failure to keep state secrets because it is apparent from those to whom I have spoken and from what our own colleagues have said on the air, the FBI does not know at first blush from its initial examination of these things what their security level is.
