This is a rush transcript from "The O'Reilly Factor," November 6, 2008. This copy may not be in its final form and may be updated.
Watch "The O'Reilly Factor" weeknights at 8 p.m. and 11 p.m. ET and listen to the "Radio Factor!"
BILL O'REILLY, HOST: In the "Is It Legal?" segment tonight: You may remember the state of Ohio investigated Joe the plumber soon after he began campaigning for John McCain. At first it was just Joe's child support payments, but then we found out the investigation into Joe was far more extensive.
So we sent Jesse Watters to Ohio to talk with the director of the Ohio Department of Jobs and Family Services, Helen Jones-Kelley, who's responsible for the Joe snooping. Well, when Ms. Kelley saw Jesse, she ran into a fire station, and then the police chief showed up.
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: If your intention in going inside the fire station is to trap her in a room and talk to her, that's not going to happen.
JESSE WATTERS, "FACTOR" PRODUCER: I don't want to trap her. I just want to convey...
UNIDENTIFIED MALE: How much clearer can I make it that she doesn't want to talk to you? Does she — do you have to make her talk to you? Is that your right to make her talk to you?
WATTERS: What I'm saying is she's — her salary is paid for by the taxpayers. She maxed out to the Obama campaign. She may have done something illegal. And as a journalist, I have a right to ask her a question.
UNIDENTIFIED MALE: Well, not if she doesn't want to speak with you.
(END VIDEO CLIP)
O'REILLY: Well, after that confrontation, Jesse finally did get to speak with Ms. Kelley off camera.
(BEGIN AUDIO CLIP)
WATTERS: Did the governor order you to go into the file, or was that a decision that you made?
HELEN JONES-KELLY, OHIO STATE WORKER: I'm going to say again, if you have any questions you need to speak to Tom Charles who is the inspector general of the state of Ohio.
WATTERS: OK, all right, thanks for your time.
(END AUDIO CLIP)
O'REILLY: With us now, our "Is it Legal?" team, attorney and FOX News analyst Lis Wiehl and attorney and FOX News anchor Megyn Kelly. No relation to...
MEGYN KELLY, "AMERICA'S NEWSROOM" CO-HOST: She spells it with a second "e."
O'REILLY: Now, at first it was just the child support payments. But the state of Ohio went far beyond that, correct?
KELLY: Yes. Now we have news that they looked into whether he was on welfare and getting any sort of welfare checks, and they also looked into whether he owed any back taxes. And now we have reports that, separate and apart from Helen Jones-Kelley's department, they checked his DMV records and perhaps other records. We don't know exactly how widespread it was, but the government of Ohio looked into Joe the plumber and looked hard.
O'REILLY: Anything illegal about that?
KELLY: Well, it's not that it's illegal, it's that it's inappropriate and unethical. This woman defended her snooping by saying, "Well, he suddenly shot to stardom. He came into the public eye." That's not enough. That cannot be enough. You must have to have some sort of reason to look into somebody's records. Even she admits that. And she tried to pawn off that reason as saying, "Well, he came into the public eye."
O'REILLY: Do you think she was ordered to do it?
KELLY: I have no evidence of that.
O'REILLY: See, I believe she was.
KELLY: I know you do.
O'REILLY: Because she's not smart enough, with all due respect, to do it on her own.
KELLY: Why? Where do you get that? Here's why I...
O'REILLY: Because I — we've investigated.
KELLY: ...would argue the opposite. Here's why I would argue the opposite. She maxed out, as Jesse Watters pointed out, to the Obama campaign. She's clearly an Obama supporter.
O'REILLY: She's in the machine.
KELLY: But listen, everyone in the left wanted dirt on Joe the plumber when he first came out on the national scene.
KELLY: All the left blogs were trying to find out about his tax liens and so on.
O'REILLY: I think a bureaucrat like that would...
KELLY: I mean, she may have just been lucky.
O'REILLY: But anyway, look, Wiehl, if I'm living in the state of New York and somebody doesn't like me in Albany...
LIS WIEHL, FOX NEWS LEGAL ANALYST: Really? Shocked. I'm shocked. Somebody not like you?
O'REILLY: It might be happening. Do they have a right — they don't...
WIEHL: Absolutely not. And I disagree with Megyn in the sense I do think there is potentially something illegal here. I looked at the Ohio legislative statutes, and employees are strictly liable for misuse of political funds. And I would say, look, her taking the time or ordering somebody else to take the time to look into this, that's misuse of public funds. It takes time and money to do that.
O'REILLY: Because her agency is paid for by the taxpayers.
WIEHL: Absolutely. Absolutely.
O'REILLY: So she'd have to justify the expense?
WIEHL: The reason she justified it, she said, "Well, when people come into the political eye, like a lottery winner, then we're going to look at them." Well, a lottery winner is a lot different from somebody....
O'REILLY: So you would launch an investigation?
WIEHL: They have. They have launched an investigation on her.
O'REILLY: There is one?
WIEHL: On her — not — on her…
O'REILLY: The attorney general of Ohio?
WIEHL: An investigation. But all they said today is it's ongoing.
O'REILLY: They're all Democrats, you know. And I'm not saying that Democrats are corrupt. I'm just saying that, you know, like Ohio, any state, there's a lot of cronyism.
Now, where is the ACLU in this? Aren't they the privacy people?
KELLY: This is a shocker, isn't it?
O'REILLY: They didn't show up. Where is the ACLU?
KELLY: They are out in California on behalf of the gay marriage advocates.
O'REILLY: So they're over in that — they couldn't help Joe the plumber.
O'REILLY: Don't they have bathrooms at the ACLU? Don't they have restrooms there on the premises? Don't they like plumbers?
KELLY: The ACLU would absolutely be involved in this. This is tailor made for the ACLU.
O'REILLY: Can you imagine if a Republican did this to a Democrat? It's unbelievable.
O'REILLY: But nothing. No ACLU. We haven't seen any of them.
WIEHL: No, they are all in California doing the whole gay marriage thing.
O'REILLY: All in California.
WIEHL: It takes a lot to file all these lawsuits in California.
O'REILLY: All right. Let's get this. Let's get this. So we want to say, there's no ACLU in Ohio helping Joe the plumber.
WIEHL: Even though there is a huge privacy issue. I'm sure they're going to step in and help Jesse if he gets sued, too.
O'REILLY: The folks in California say no to gay marriage, overturning the Supreme Court. That should be it, right?
KELLY: Yes, that should be it. It is a ballot initiative. And that's how you amend the constitution in California, by a ballot initiative.
But the supporters of gay marriage have now filed three lawsuits, and their argument is there's a difference between amending the constitution and revising it altogether. In other words, gutting it. And this thing essentially guts it. And it's true that you can't gut it by a ballot initiative. So what the fight is going to be over, is this a normal amendment that we've seen them pass many times, or is this essentially a gutting of the constitution?
O'REILLY: What do you think, Wiehl?
WIEHL: Well, the problem is that the supreme court, the California Supreme Court already ruled on exactly this language. I compared the language in the decision to the language of the amendment, and it's exactly word by word.
O'REILLY: Because they tried to keep this off the ballot, right?
O'REILLY: So they lost and the Supreme Court said you can't have it on the ballot.
O'REILLY: So now they're going back again with the same argument.
WIEHL: But it was a 4-3 decision the last time. So the question is...
O'REILLY: Maybe they can get somebody else.
WIEHL: But here's the thing. Even if they win at the California level...
O'REILLY: The Supreme Court.
WIEHL: ...which means it goes to the Supreme Court. Does the ACLU really want to open that door?
O'REILLY: Sure they do.
WIEHL: No, they don't.
KELLY: It doesn't go to the U.S. Supreme Court.
WIEHL: It's a constitutional issue.
KELLY: It's a state constitutional issue, which means...
O'REILLY: Say the loons in Sacramento, the judges, side with the gay activists and say, you know, "We're going to throw this vote out"? Then you know the other side is going to appeal it further. And it does...
KELLY: You can't, no. When it's a matter of state constitutional law, the state supreme court is the ultimate arbiter on it. And the gay marriage proponents have been very careful not to raise federal issues, because they don't want it winding up in the U.S. Supreme Court.
O'REILLY: So the judges could just throw this whole thing out?
O'REILLY: Based on nothing but the judges want to do it.
KELLY: Well, this is what they — this is what they would say. They would say it did gut the state constitution, because it gutted the equal protection clause.
O'REILLY: But Wiehl pointed out, they approved the language.
WIEHL: Exactly the same language. So I don't — unless they can make that one vote sway, I think we're going to get the very same decision. And what I would argue, if I was trying to get this to the Supreme Court, then I would say, "Look, there is a federal constitutional issue. It's equal protection issue, even though it comes up in the state constitution." I know it's a stretch, but that's what I would argue.
O'REILLY: I am starting to get a headache.
KELLY: The final line is the California Supreme Court controls…
O'REILLY: All I want people to know is, when you're sitting between two women who went to law school, you must have aspirin.
Ladies, thanks very much. I appreciate it.
Content and Programming Copyright 2008 FOX News Network, LLC. ALL RIGHTS RESERVED. Transcription Copyright 2008 ASC LLC (www.ascllc.net), which takes sole responsibility for the accuracy of the transcription. ALL RIGHTS RESERVED. No license is granted to the user of this material except for the user's personal or internal use and, in such case, only one copy may be printed, nor shall user use any material for commercial purposes or in any fashion that may infringe upon FOX News Network, LLC'S and ASC LLC's copyrights or other proprietary rights or interests in the material. This is not a legal transcript for purposes of litigation.