(CNSNews.com) - The House Select Committee on Benghazi will not subpoena Hillary Clinton's email server, because it can't, committee chairman Rep. Trey Gowdy (R-S.C.) told MSNBC's "Morning Joe" on Wednesday.
"Well our committee doesn't have the power -- under our rules, we don't have the power to seize a personal property like that. The House as a whole, that's franky an open constitutional question as to whether the House as a whole has that legal authority, but frankly, we shouldn't have to compel it," Gowdy said.
"You can subpoena but the power to subpoena is only as good as the power to compel compliance," Gowdy, an attorney, said. "But rather than have that protracted legal battle, I don't know why she doesn't just turn the server over."
At her news conference on Tuesday, Clinton said the private email server she used during her time at the State Department "contains personal communications from my husband and me, and I believe I have met all of my responsibilities and the server will remain private."
Hillary said the server she used "was set up for President Clinton's office. And it had numerous safeguards. It was on property guarded by the Secret Service. And there were no security breaches."
Clinton said she has handed over all her work-related emails to the State Department, as requested, but "I chose not to keep my private personal emails -- emails about planning Chelsea's wedding or my mother's funeral arrangements, condolence notes to friends as well as yoga routines, family vacations, the other things you typically find in in-boxes."
But Gowdy on Wednesday said Clinton doesn't get to decide which emails she keeps and which ones she deletes:
"One thing that's clear is, we don't get to grade our own papers in life; we don't get to call penalties on ourselves. She (Hillary Clinton) doesn't get to determine what's a public record and what's a personal record -- someone else gets to do that," Gowdy said.
"I think it's eminently reasonable to ask someone to turn this server over to an independent, neutral third party -- if not to the House of Representatives, turn it over to a retired judge, an archivist, an inspector general, so we can have some assurance that the 'we' that separated the public (emails) from the private did a good job."
Clinton on Tuesday said she sent and received "over 60,000" emails in total while serving as President Obama's secretary of state: "About half were work-related and went to the State Department, and about half were personal that were not in any way related to my work. I had no reason to save them, but that was my decision because the federal guidelines are clear and the State Department request was clear.
"For any government employee, it is that government employee's responsibility to determine what's personal and what's work-related. I am very confident of the process that we conducted and the e-mails that were produced.
"And I feel like once the American public begins to see the e- mails, they will have an unprecedented insight into a high government official's daily communications, which I think will be quite interesting."