This is a rush transcript from "The Kelly File," June 29, 2015. This copy may not be in its final form and may be updated.
MEGYN KELLY, HOST: Breaking tonight, we are getting exclusive new details on the massive trove of evidence in the criminal case against six cops in Baltimore that has inspired riots, protests and questions about an increase in violent crime across this country.
Good evening and welcome to "The Kelly File" everyone, I'm Megyn Kelly. We learned late today that the investigation into the death of a sometime drug dealer named Freddie Gray has produced some 300,000 pieces of evidence against the six police officers who now face a list of charges, up to second-degree murder. Sources who have seen this evidence, or have been told about it are tonight telling "The Kelly File" that while all six officers have spoken with investigators, the officer who is facing the most serious charges has not said anything of substance.
We'll show you why that is important in a moment. "The Kelly File" also learning, that at the heart of the evidence turned over to the defense, is a police interview with this man. Donte Allen, the only man who was actually in the police van with Freddie Gray on the day he was injured. And who allegedly told police that he could hear Freddie Gray trying to injure himself. The Washington Post broke that story which Mr. Allen thereafter tried to deny to the media.
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: Now, the story is, according to a newspaper report, the Washington Post, that there was screaming in the van. That you said that he was intentionally screaming and hurting himself.
DONTA ALLEN, INSIDE POLICE VAN WITH FREDDIE GRAY: Untrue.
UNIDENTIFIED MALE: Okay.
ALLEN: Very, very, very untrue. Never untrue. I never talk to -- I never talk to nobody. I got my own personal lawyer who I haven't talked on all day because of the things going on. The only person that I talk to was -- the exact thing I'm telling you all, I told them.
(END VIDEO CLIP)
KELLY: Uhmm. We'll see. Mr. Allen went on to tell reporters that all he heard was, quote, "a little banging." And he added that he and Mr. Allen are, quote, "no snitch." And that police, quote, "are crooked."
But tonight, "The Kelly File" has learned the Washington Post apparently had it right. A source close to the case telling us, there is actual videotape of Donta Allen telling police that Freddie Gray was repeatedly banging his head against the van. That he sounded like a madman. And that he was asking himself why the cops would put him in a van with a crazy person.
Mark Eiglarsh, he is a criminal defense attorney and former prosecutor. Arthur Aidala is a Fox News legal analyst and New York trial attorney. Guys, thank you for being here.
And so, Donta Allen who tried to retract his initial statement to the police once it became clear to him how it would appear to others. You tell me, Arthur, how that's going to play to a jury when he is on camera, on tape. The first statement to the cops is that he thought Freddie Gray was trying to hurt himself. He heard Freddie Gray banging his own head against that police van, repeatedly. And he wondered why they would have put him in a van with a crazy person.
ARTHUR AIDALA, FOX NEWS LEGAL ANALYST: Well, let me just say this. It is very credible that he would be on videotape. It was common practice. When I was a prosecutor in Brooklyn 20 years ago, it was an audio tape, a cassette tape. But now with technology on a murder case, any murder case, and you have a key witness like that, you are going to memorialize it. So that, for the specific reason of locking him or her into a statement. So, what's going to happen is, that will be played by the prosecutors. He'll have to be --
KELLY: The prosecutors, they will be going to play by the defense.
AIDALA: I'm sorry. Played by the defense. Although you never know, Megyn. Sometimes the prosecutors will play it to take the wind out of the sails of the defense. And that, ladies and gentlemen of the jury, is reasonable doubt. That is reasonable doubt whether the police officer driving this vehicle or any of the five caused his death.
KELLY: Mark, here's one of the reasons why it seems like such an important fact. Because we are being told that the one officer who hasn't spoken is the driver of the van. Officer Goodson. And according to the report that came out on Friday, that is when the evidence was turn over to the defense. They said all six cops have spoken. Well, we learned today that that is not really true. That Officer Goodson, he is top left has not really spoken. He may have issued some short brief statements like talk to my lawyer. But subsequently we're being told, he has not spoken. So, you have the driver of the van not speaking. And now you have the only other person who was in the van, the first statement to the police, before he understand what's the media is going to do to this. What his friends are going to do to this says, it sounded like he was a crazy man and he was trying to hurt himself.
MARK EIGLARSH, CRIMINAL DEFENSE ATTORNEY: Yes. Extremely compelling that the driver is not speaking. The only way they can possibly prove second-degree murder is if there was some type of admission by the driver, that he said, we're going to give him one of those rough ride. We're going to slam on our brakes because this guy was causing us trouble. Absent in a statement like that, coupled with this guy that we've just saw, being their star witness, they've got a serious problem.
KELLY: And Donta Allen actually won't on to say in a CNN interview, there wasn't a rough ride. So it would have had to be a rough ride prior to him getting in the van which by the way is the prosecution's theory. But the prosecution's theory does not square with what the testimony is going to be from the only other person who was inside the van, Arthur. Who is going to say, when I got in, it sounded to me like Freddie Gray was next to me. Because they can't see each other. Hurting himself. I'm not saying, I don't know what to believe about Donta Allen or what he experienced but that's reasonable doubt right there. And a second-degree murder charge against that driver.
AIDALA: And he's the best evidence. He is the only person who is back there. None of the police officers are back there with him. He is as close as he can be. And his testimony the way we understand is not going to be, he was moaning or in pain or asking for help. It was that, he sounded like somebody who was very agitated. And again, Megyn, I mean, a judge almost has to dismiss it after the plaintiff's case, the people's case. There's not enough --
KELLY: They don't have the proof. They don't have the proof. And now we learn Mark, that the prosecutor, this is so interesting to me. Is trying to divide the defendants. And a lot of people thought, all right. They are six defendants. She's going to take the two who chased after Freddie Gray and did the arrest before he got in the van. She'll try those two together. And then everybody who came out after that, she's try those two together. But she's not, she's mixing and matching. She wants two tried. And she wants the other four tried. But it is not the two on foot versus the four that came after. What is she up to?
EIGLARSH: Well, there's one single reasons why she's doing that. Her chances of securing a conviction against all of them as charged, is getting someone to point their finger at someone else and give them something. The evidence doesn't support right now. That's what she's doing. It is completely transparent.
KELLY: She's trying to get somebody to flip in. Yet, I can also report tonight that KELLY FILE is informed by a source close to the case, no one has flipped on the others. The cops are standing shoulder to shoulder right now.
AIDALA: Yes. That's definitely the way it appears as outsiders looking in. But also Megyn, prosecutors do split up trials, it's called separate emotions, defense attorneys do it sometimes. The prosecutors said, don't forget, one witness that goes on now, that the prosecutors put on, will be cross examined potentially by six defense attorneys. They get pulverized usually. So, if you can cut it back from six to four, and you make the story a little easier for a juror --
KELLY: All right. Last question.
AIDALA: That usually in their prosecutor's best interest.
KELLY: Last question. One of the things that they have turned over in this evidence is statements by the cops themselves. You tell me Mark whether those are coming into evidence. Because normally a cop gives a statement when he makes an arrest. He is doing it in his role as a police officer. He hasn't been Mirandize. He hasn't realized the statement could be used against him in a criminal trial.
EIGLARSH: I think it generally comes in. If they had these people come in and say, we're conducting an investigation. By the way, you're free to go. They're not in custody. Miranda rights must be read when someone is being questioned which they were, but secondly, they were in custody. They weren't in custody. They were free to go. And so, I think that those statements will probably come in.
KELLY: You agree with that, Arthur?
AIDALA: Absolutely. Professor Eiglarsh hitting the nail on the head. Absolutely.
KELLY: Is that right?
EIGLARSH: Oh, thank you, Arthur.
AIDALA: Yes. And people think, oh, I wasn't Mirandize. That's only when you can't leave. When the cops -- put the cops on you or they put you in a jail cell, where you say, you're not going anywhere, then you have to be Mirandized. But if a -- come up to you and say, what do you know, or what do you see? When you say, oh, I did the homicide, that comes in.
EIGLARSH: That's right.
KELLY: All right. Great discussion. Great to see you both.
EIGLARSH: Thanks, Megyn.
KELLY: Well, one escaped prisoner is dead and the second is reportedly talking after the biggest manhunt in years came to a violent end in Upstate, New York this weekend. What a job the cops did in getting these guys.
So, what does this mean now for the woman who helped them escape? We'll speak to a former inmate who spent time at this very prison with some fascinating insights.
And why you're getting ready for the July 4th fun, terror threat concerns is so high that the FBI is now setting up command post across the country. We'll speak with the former chair of the Homeland Security Committee.
Plus, ugly new fallout for Donald Trump over his remarks on immigration as NBC now makes a big new announcement.
Howie Kurtz and "Celebrity Apprentice" runner-up Geraldo Rivera are next.
(BEGIN VIDEO CLIP)
DONALD TRUMP, R-PRESIDENTIAL CANDIDATE: Geraldo, you're tough, you're smart, you're brilliant in so many different ways, you've done such an amazing job in raising so much money for your charity. It is really an honor to have worked with you for this period of time.
(END VIDEO CLIP)
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: There is new fallout for Donald Trump tonight. It involves this network.
(END VIDEO CLIP)
KELLY: Well, that was one of America's largest TV networks tonight announcing that it is cutting ties with the 2016 republican presidential candidate Donald Trump over remarks Mr. Trump made about allegedly violent Mexican criminals illegally crossing the border into the United States. In a statement, NBC writing, quote, "At NBC, respect and dignity for all people are cornerstones of our values." Today, Trump firing back saying, he cut ties with the network even though they wanted him to return to the reality TV show, "The Apprentice."
(BEGIN VIDEO CLIP)
TRUMP: As you know, they renewed "The Apprentice." But I just told them I cannot do "The Apprentice" because of the fact that I'm running. And as long as I'm running for president, they were not happy with it. They wanted me to do "The Apprentice." And now, with my statements on immigration which happen to be correct, they are going to take a different that stand. I think as far as ending the relationship, I have to do that. Because my view on immigration is much different than the people at NBC.
(END VIDEO CLIP)
KELLY: Joining us now, Geraldo Rivera, host of "Geraldo Rivera Reports." And runner-up in latest segment of celebrity apprentice which probably --
GERALDO RIVERA, HOST, "GERALDO RIVERA REPORTS: The final runaway --
KELLY: Should have run.
It turns out. And Geraldo, you actually spoke with Mr. Trump earlier today. Also with us, Howie Kurtz, host of FNC's "MediaBuzz."
So he and NBC have now cut ties. It had to happen since he was running for president but it didn't have to happen exactly like this. You're take on it, Geraldo.
RIVERA: Well, first of all, I'm filled with respect and admiration for Donald Trump. I've known him for decades. It was one of the great professional experiences of my long career being on "The Apprentice" with him. He has rebuilt Manhattan in many ways, the whole west side, Wollman skating rink, the garbage dump that he created a golf course out of after decades of bureaucratic inaction. It was really great. So when he said that about the Mexicans and about they're all killers and drug dealers and rapists.
KELLY: Not all. He said some are very good people.
RIVERA: And some I guess are good people. It caused such pain and anguish in the Latino community. Such rage. I just wanted him -- look, I know that most people who watch our network disagree with my liberal stance, relatively liberal stance on immigration reform. And probably --
KELLY: Which is why you're the perfect person. Because you love Mr. Trump and yet you love the Hispanic community.
RIVERA: And I wanted him to know how hurt good people were. Law- abiding good honest people, hard-working people, his kind of people, that his statement was way too broad. It was crude in many ways.
KELLY: You thought he could hear you, he could hear it coming from you, did he?
RIVERA: I was begging him on the telephone just apologize. You know, you can have the same strong view. Build your fence. Build it a thousand feet high. Nobody builds like you do. Have your fence.
KELLY: But the language.
RIVERA: But let it be very clear that women, children --
KELLY: Look, we have the photo of Geraldo talking to Donald Trump. This is great. It's fantastic. What's the bottom line? Is he going to apologize?
RIVERA: I won't tell you what he said. I wasn't really on the record per se. And I feel awkward.
KELLY: Checking his Twitter feed. I don't think it works.
RIVERA: Surprising to say, he hasn't backed down.
KELLY: No, he hasn't. He was on our show just on Thursday and he was once again referring to Mexican immigrants and other immigrants not just all Mexicans as killers. Not all of them, you know, he is standing by his comment, and his comment today that NBC is weak. They are weak. Otherwise they would tell the truth which is as I say it. That was his point.
HOWIE KURTZ, HOST, "MEDIA BUZZ": Well, first of all, this is gratuitous grand standing by NBC which you felt was so offended by Trump's comment. It would have done it a week ago instead of putting out a wimpy statement saying, we don't agree with Donald. And because Trump is leaving, he has to leave "The Apprentice."
KELLY: He cannot host "The Apprentice," as he's running for president. That's not allowed.
KURTZ: Of course not. So, it's easy shot to take, to mollify Hispanic viewers who understandably upset by Trump's comments. And to stand behind Univision in host beauty pageant thing. But even his persuasive a guy as Geraldo asking Trump to apologize, what a lot of people here, even when Trump goes over the top. They like the fact that he doesn't apologize. They like the fact that he doesn't parse his words like most politicians. The average politician would have backed off and clarified many times by now. But Trump gets away with it. Because he strikes a cord --
KELLY: Well, I mean, Anne Coulter has got a whole book out right now that makes this point. Now granted, she's not running for president. But she --
GERALDO: Nor would she ever be elected with that point of view.
KELLY: But she cites data that does support the fact that some obvious immigrant who come across the borders do turn out to be criminals.
GERALDO: I research it tonight.
KELLY: None, no immigrants turn out --
GERALDO: I never said that. Undocumented immigrants commit crimes at a lower rate than the citizen population of the United States and the United States is unique in this experience. Every poll shows that.
KELLY: Someplace Anne got a shiver down her spine and I'm getting an e-mail soon asking her to come on the debate.
GERALDO: I'd love too.
KELLY: But here's -- I think he raises an interesting point about NBC. Because Donald Trump came out tonight and said, respect and dignity for the people? They keep Brian Williams? He says, he is a proven liar and yet, I have to go because I said this?
KURTZ: You said it ahead of me. Because by doing that, Trump drags in lying Brian Williams. I mean, nothing to do with this knowing that's going to be cat nip for the media. And makes it --
KELLY: Well, in his defense -- in his defense, I think he was indignant at them trying to claim the moral high ground and he doesn't think they can.
KURTZ: And he comes back and says, they didn't fire me. I fired them.
KELLY: Well, he has a good point. When he announced for president, did he not say you're fired to NBC?
GERALDO: Listen, I lot of pundits have -- he is in second place. He is very strong. And he is a great executive. He could really do it if could only put a little damper on his --
KELLY: Do you think the Hispanic community will hold this against not only Mr. Trump but the republican field?
GERALDO: I have no doubt about it.
GERALDO: Because if Republicans now fall in lock step, in varying degrees, Jeb Bush aside. I think he is the most Latino candidate in the race even though he is running against two guys who are Cuban-Americans. I still think Jeb Bush with his Mexican wife. And his ability to add lie, I think that Jeb Bush can but he has got to have a moderate stance as well on immigration.
KURTZ: I disagree. I don't think people see Trump as a cookie cutter republican. I don't think the whole --
GERALDO: No, but you don't win the republican nomination by being a cookie cutter republican. You win by getting activists activated. And one of the ways you get activists activated is to throw red meat at them. And say immigrants, drugs, rapists.
KELLY: All right. So, the Geraldo culture -- coming up soon if they'll agree. They probably won't talk to each other. We'll do it consequentially. One after the other. Good to see you both.
KURTZ: Thanks, Megyn.
GERALDO: Thank you.
KELLY: Up next, hear from a former prisoner at Dannemora, that's the maximum security prison these two guys were at about the system that lets convicts like these escape -- like these two escapees get contraband from the guards. Also, I'll ask him, what can this guy who has been captured trade? What information can he give and what can they give him to get it? So we can find out more about how they did it.
Plus, Judge Napolitano is here to weigh on in a civil suit now getting national attention because of what one patient inadvertently captured on his cell phone while he was sedated in the O.R.
(BEGIN VIDEO CLIP)
TIFFANY INGHAM, ANESTHESIOLOGIST: After five minutes of talking to you in pre-op, I wanted to punch you in the face and man you up a little bit.
(END VIDEO CLIP)
KELLY: Developing tonight. We are getting new information about what is next for the two prison guards charged in helping Richard Matt and David Sweat escape. Matt was shot and killed Friday afternoon. Two days later authorities caught up with Sweat. They shot him twice in the torso before taking him back into custody. Rick Leventhal is live in Plattsburg, New York with the very latest. Rick.
RICK LEVENTHAL, FOX NEWS CORRESPONDENT: And Megyn, despite being wounded, Sweat has been talking to investigators detailing his escape and his 23 days on the run. And he says, the original plan was for civilian prison employee Joyce Mitchell to pick him and Matt up when they emerged from that manhole. Outside the prison walls in Dannemora, they were going to kill her husband, he says, and then drive with her to Mexico and then live happily ever after. But when Mitchell didn't show up, they decided to head for Canada instead.
And Sweat says, he split up with Matt five days before Matt was killed by a Customs of Border Protection tactical team member because Matt was older, not feeling well and slowing him down. And he almost made to it Canada just a mile and a half from the border when New York State Police Sergeant Jay Cook alone on patrol spotted Sweat. Tried to talk to him. Recognized him and then chased him. When Sweat took off running, he shot him twice in the back when he says, Sweat got close to a tree line. Now, this happened in Franklin County, but today we saw the Clinton County D.A. So, I asked him how he would handle the shooting investigation.
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: If it wasn't my county, I would then present the case to the grand jury and let the grand jury make a determination.
LEVENTHAL: You would?
UNIDENTIFIED MALE: I would.
LEVENTHAL: And your understanding a New York law, in regard to -- do you believe it was a lawful shooting?
UNIDENTIFIED MALE: If this case occurred in my county, I would present the case to the grand jury and I would allow the grand jury to make a determination.
(END VIDEO CLIP)
LEVENTHAL: Meanwhile, the 27-year veteran corrections officer Gene Palmer was here in Plattsburg court today to face, basically a routine hearing on his case. He is charged with giving tools to those convicted killers and also destroying evidence, a painting that the man mad for him. He is out on bail and his case is expected to go to a grand jury Megyn in three to four weeks. Of course, Joyce Mitchell also behind bars tonight and she and Palmer could both face years in jail if convicted on these charges.
KELLY: Rick, thank you.
Joining me now, is a former Dannemora prison inmate with intimate knowledge of how things work inside this prison. Louis Ferrante is the author of "Mob Rules: What the Mafia Can Teach the Legitimate Businessman." And he was the host of the "Gangsters' Code."
Lou, thank you for being here. So, I've seen you on Greta and I confess, I have never seen your show on Discovery. So, the first thing that I want to ask you is, what exactly did do that landed you in Dannemora?
LOUIS FERRANTE, FORMER INMATE, DANNEMORA PRISON: I was the heist guy. I did heist and I was the stick-up guy. We did hijackings and we would do big -- me and my co-defendants would do car heists, bank robberies and hijackings and we did at the time for the mob.
KELLY: Okay. Okay. So, you actually, you served time, you said you served time in federal, state, local, you know these prisons. Here's my question for you. David Sweat is talking and, you know, he's already in prison for life. What can they possibly -- like how bad could they make his life if he refuses to talk more? And how much better could they make his life in prison if he does give up information?
FERRANTE: He's done. I think he's talking just because he's a little bit in a stupor and I think he wants to maybe brag about what he's gotten away with. But his only bragging chip would have been holding out and not talking right now. And saying to them, hey, listen, guys, if you want to make some type of a deal with me, I just want to get into the general population again one day and not be kept in the hole for the rest of my life or be sent to some really, really bad place. Even worse than Clinton which there really isn't many, if any. But I think he should have kept his mouth shot and held that office a bargaining chip. But his defense attorney probably would have told him to do that. But the more he opened his mouth. The more he runs it, the less of a deal he's going to be able to make himself one day. He was done already. He's finished now. And they could use the excuse -- go ahead --
KELLY: How long did you ever hear about somebody staying in the hole? Staying in solitary confinement? I mean, could they possibly keep him there forever? Wouldn't that be cruel and unusual?
FERRANTE: Yes. There are laws against it but they find ways around it at times. And there are people who have been in the hole. What they could do is say, if in fact that was a snitch, and I heard Matt was already in a speculation that Sweat was already as well. An in-house snitch. Meaning he snitch a lot of prisoners. If that's the truth, they could use the excuse that he is being held in solitary confinement for his own protection. And on that bases, they could keep him there for a long time. Maybe forever.
KELLY: Do you think he would return as some sort of a hero to prisoners? You know, he escaped. He made it. Is he going to be this like God-like figure in prison?
FERRANTE: If he was not a snitch, he would be the man.
FERRANTE: I mean, the first thing is he killed a cop. That to the prison, the cop is the enemy. So he has got an enemy kill, you know, under his belt. That's number one. So he is already sort of like heralded in prison as some extra special guy. The second thing is, he led 2,000 law enforcement officers on a wild goose chase for three weeks after he pulled out like an Alcatraz style escape. This guy would be like the famous guy, the most famous guy in prison like Al Capone. He blew it if he's a snitch. Once he's a snitch, he has a lot of problems. There are other people.
And I'm going to tell you. Not only the hardened criminals are going to hate him. But a lot of the other snitches and there are a lot of snitches in prison. A lot of the other snitches are going to hate him. One because he blew it for them and they're not going to get the treats that they used to get. And two is, believe it or not, the hardest on snitches are the snitches. Because they want to maintain their cover. So, if you see somebody who -- snitches all the time. Chances are, the guy is a snitch. I saw a guy one time sliced a snitch from his lip to his ear with a razor. And he said, we did it because the guy is a snitch and the guy was. And we found out a year later that that guy was a snitch too.
KELLY: Oh my Lord!
FERRANTE: And he's trying to keep cover.
KELLY: Lou, fascinating. Thank you so much for being here. We appreciate it.
FERRANTE: Thank you, Megyn.
KELLY: Well, coming up, a legal expert who spent the weekend looking at the Supreme Court ruling on marriage tonight has a warning for Catholic schools and religious groups across this country. We will have that for you just ahead.
And up next, why there is so much worry about security for this coming weekend. The FBI is now setting up command centers across the country and then there's this.
(BEGIN VIDEO CLIP)
MIKE MORELL, FORMER CIA DEPUTY DIRECTOR: I wouldn't be surprised if we're sitting here a week from today talking about an attack over the weekend of the United States. That's how serious this is. (END VIDEO CLIP)
KELLY: Breaking tonight, we are hearing dramatic warnings about a possible ISIS-inspired terror threat here in America over the Fourth of July holiday. The heightened alert coming from the FBI and the Department of Homeland Security in the wake of Friday's trio of terrorist attacks. In Tunisia, where a gunman opened fire at a beach resort, in Kuwait, where a suicide bomber blew up a mosque, and in France, where a radical behead ad worker in an American-owned factory. Today the Former CIA Deputy Director, Mike Morell could not have been blunter.
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: I wouldn't be surprised if we're sitting here a week from today talking about an attack over the weekend in the United States. That's how serious this is.
(END VIDEO CLIP)
KELLY: Catherine Herridge, live in Washington with the very latest. Catherine?
CATHERINE HERRIDGE, WASHINGTON DC: Well Megyn, tonight, Fox News confirming that the FBI will be setting up command posts across the country to facilitate intelligence sharing over the July 4th holiday weekend, with one source telling us, their focus is getting ISIS sympathizers off the streets, then building a case against them. Today the White House Spokesman seemed to dismiss the new warning as routine.
(BEGIN VIDEO CLIP)
JOSH EARNES, WHITE HOUSE PRESS SECRETARY: It is not uncommon for these kinds of joint bulletins to be issued in advance of the Fourth of July. I can also say that there is no specific credible intelligence to indicate any threats against celebrations over the Fourth of July weekend.
(END VIDEO CLIP)
HERRIDGE: But those briefed on the bulletin say otherwise. It warns of a heightened threat sighted in recent plots linked to ISIS, including this failed attack at the Muhammad Cartoon Drawing Contest in Garland, Texas, as well as the June 2nd confrontation with Osama Rahim, a knife- wielding ISIS supporter who was shot and killed outside a Boston CVS, after he lunged at federal investigators who wanted to question him. While administration officials say there is no connection between Friday's attacks in Kuwait, Tunisia, and the beheading in France, Canadian authorities tonight are confirming that the French suspect took a selfie with a severed head, and then sent to it a Canadian mobile number, suggesting some level of connectivity.
(BEGIN VIDEO CLIP)
REP. MIKE MCCAUL, R-TEXAS, HOUSE HOMELAND SECURITY CMTE CHAIR: In light of the three attacks in three hours on three continents overseas, it shows us that ISIS is not just regionalized like the administration says, only in Iraq and Syria, but rather it demonstrates a global threat.
(END VIDEO CLIP)
HERRIDGE: And Chairman McCaul who gets regular intelligence briefings, adding the July 4th is a target-rich environment with events at military bases as well as parades, Megyn.
KELLY: Catherine, thank you. Joining me now with more, New York Congressman Peter King, a Member of the House Homeland Security Committee. So you hear the Former Deputy Director of the CIA say, I wouldn't be surprised if we're talking about an attack that happened this time next week. He is not really known for his incendiary rhetoric. That scares a lot of people. Should people be scared?
REP. PETER KING, R-N.Y., HOUSE HOMELAND SECURITY CMTE MEMBER: People should be concerned. You're right. Mike Morell is usually very understated. In this case, I agree with him completely, Megyn. I've been hearing reports for the last two to three weeks now. And for instance, just in the last week alone, the last ten days, we've had five different arrests in New York of ISIS supporters. These are people the FBI believes are involved in potential terrorist activities. And to have five individuals arrested over such a brief period of time in one geographic area. That's just one further indication. And there are others out there of the potential of an attack. ISIS has called for attacks during Ramadan. This July 4th occurs during Ramadan, and I can just tell you, I would say since September 11th, this is the most concerned I've seen the FBI and Homeland Security and the local police. You talk to the NYPD, they are certainly on full alert. They are surveilling and watching and monitoring as is the FBI, and the Joint Terrorism Task Force. Behind the scenes, when you talk to people involved in this, they're extremely concerned. I agree also with every word that Catherine Herridge said.
KELLY: What does it tell you that people like yourself, people like Morrell are coming out being so public with this? What does that mean? They need the public's help?
KING: Several things. First of all, I've been aware of this the past two or three weeks. I didn't say anything until the Homeland Security Secretary, Jeh Johnson came out Friday, and mentioned the Fourth of July. Part of it now is, as we approach the Fourth of July, by letting them know what we know, that could cause them to stand down. Also, we have to start finding -- so people will know if they see actions being taken, that they should support the police, they should provide whatever information they would have. And I would say also as Secretary Johnson said in his statement, the American people, if they see something, say something. And I think that's especially true for people in the Muslim community, because that's where the threat is going to come from. So I'm really calling on them. If they know anything at all, out of the ordinary, let the police know, because we're talking about potential life and death here.
KELLY: Wow, Congressman Peter King. Thank you, we appreciate it.
KING: Megyn, thank you.
KELLY: Let's move on to something else. Legal experts pore through the Supreme Court ruling on marriage, they are raising new questions about the fallouts for churches, religious schools and faith groups across the country. One of those experts joins us live, next. Plus, Judge Napolitano is here to weigh in on the civil suit now getting national attention, because of what one patient inadvertently captured on his cell phone while he was sedated in the operating room. Listen to the anesthesiologist.
(BEGIN VIDEO CLIP)
UNIDENTIFIED FEMALE: After five minutes of talking to you in pre op, I wanted to punch you in the face, and man you up a little bit.
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KELLY: New reaction tonight to the sweeping same-sex marriage decision that came down last Friday. That divided the Supreme Court by a vote of five o four. Celebrations ran throughout the day and over the weekend for some. But the joy heralded by some has been tempered by the warning Justice Scalia sounded in his dissent. Writing "I write separately to call attention to this court's threat to American democracy, until the courts put a stop to it, public debate over same sex-marriage displayed American democracy at its best." Today, critics of the ruling say, churches and faith group's maybe the first to feel the threat. Joining me now, Shannen Coffin, Former DOJ Civil Division Assistant Deputy Attorney General, and Former Counsel to Vice President Dick Cheney, Shannon, good to see you.
SHANNEN COFFIN, FORMER COUNSEL TO VP CHENEY: Hi Megyn.
KELLY: What exactly do you think is under threat? What institutions?
COFFIN: I think all religious institutions that disagree as matter of sort of fundamental faith tenets.
KELLY: Not churches themselves.
COFFIN: No, I think churches -- I don't think we're going to be seeing this overnight. I think there will be incrementalism here. But I think schools, churches, charities, all of those are probably under threat, and it is an alarm that was sounded by the Chief Justice and Justice Alito in the dissent in these cases.
KELLY: Well they asked the solicitor general about it during our oral argument. The administration's lawyer and he conceded that those others -- not churches themselves but religious institutions might very well be gravely affected by this.
COFFIN: He answered very candidly and said it is going to be an issue. The question, the questions, there are a number of them. The questions that are going to be front and center are the tax exempt status of religious institutions, universities, churches themselves, charities, there will be questions about accreditation of colleges, and there will be questions about the ability of governments to contract with these organizations. You've already seen a lot of these questions where the catholic charities have been booted out of the business of adoption in a lot of states.
KELLY: When you talk about the accreditation of colleges, because that's one area in which -- there are a lot of schools in this country that are catholic schools, and they affirmatively teach that marriage is between a man and a woman. So who enforces that, the Department of Education?
COFFIN: No. It is actually delegated to these private accreditation boards. And these private accreditation boards which are made of university faculty and administrators, and they are setting the standards. They set the standards. If you look at the example of Gordon College in Massachusetts, they are coming down hard on Christian universities that teach counter to what the Supreme Court has dictated.
KELLY: What is a catholic university or catholic school now to do? They can no longer teach that marriage is between a man and a woman? They may not utter those words unless they risk their tax-exempt status?
COFFIN: Look, that's the fundamental conflict here. And the conflict is between religious identity of these organizations, and their ability to work within our federal system of education, and our tax system. And there is a real issue here. I want to take you back ten years ago when Justice Kennedy said that the homosexual sodomy case had nothing to do with gay marriage. And Justice Scalia said don't believe it for a minute. That's exactly what is going on here. Justice Kennedy again gave lip service to the notion of religious rights. But there is every reason to doubt it.
KELLY: Understood, Shannon, good to see you.
COFFIN: Good to see you too, Megyn.
KELLY: My next guest is getting a lot of attention, both for a potential 2016 presidential run, and for saying over the weekend that the court has ruled on same-sex marriage and it is time to move on. Joining me now, Ohio Governor, John Kasich, in an exclusive interview, Governor, great to see you. First of all, I understand you've made an announcement about an announcement. Is there something you would like to tell us?
GOV. JOHN KASICH, R-OHIO: Well, Megyn only in politics do you make an announcement about an announcement. That's what everybody says you have to do. Look, people have been badgering me, when are you going to decide? So I have got an answer for you. I will announce what I've decided on the 21st of July. So now everybody doesn't have to ask me, when are you going to decide? I'm telling you. I will have an announcement for everyone on the 21st of July.
KELLY: Are people who want to see you run going to be happy or sad?
KASICH: Well, that's a good question. Let me tell you this, we've had a lot of interest so far. People are like we want to come to this announcement. So hopefully we'll have a lot of people there. And I don't expect I'll be announcing that I'll be playing in the senior golf open or anything. It should be something that's related to this political endeavor of mine.
KELLY: Good because that might be a little boring. Let's talk about this same-sex ruling, because Ohio is one of the states in the union that had ruled gay marriage unlawful. It wasn't a judge imposed thing. The people of Ohio had their say. And you say it is time to move. But you hear people like Shannon and other lawyers who studied this including the dissension in the Supreme Court saying this raises a bunch of issues for institutions that people may not have forced to seeing, your take on it.
KASICH: Well, things are happening very fast, Megyn. And look you know, I'm not a lawyer, I'm not the solicitor, and I'm not any of those people. I just happen to be the Governor. What we do is -- when we look at anything that's fast moving and changing, we sit down and try to figure out what could it mean. And I don't think we ought to get into speculation. One thing I will tell you, is when we look at the evangelical community by and large, they basically have been very restraint in what they've had to say about this. I know there are some that are in the evangelical community that don't feel that way. But I watched some people over the weekend. They said, look, we're about love. We're about prayer, we're about lots of things. And for me, I've always said that traditional marriage is between a man and a woman. But when the court decides it is the law of the land. I was a kid, I learned about the Supreme Court. I respect the Supreme Court. I don't have to agree with them.
KELLY: But wait, Ted Cruz is saying that now that they should be subjected to pretension elections Supreme Court justices, every eight years. Do you agree with that?
KASICH: No. I don't think so. I think the system is fine. If I were to run and get elected President, I certainly would want the have power to appoint them, Megyn bottom line. I appoint judges now. I appointed a woman on the Supreme Court, here in Ohio. I just want to make sure we have concertos that abide by the constitution. But in terms of electing the Supreme Court, no I'm not for that. Because then we have to have political elections to elect the Supreme Court. Look, I think we all have to see how this develops. I believe fundamentally that religious institutions have to be given protection. I have friends that are gay. I don't hear them say that you're wrong, I don't hear that at all. Hopefully, this is going to go smoothly. If not, and if problems arise, and the people feel as though they're not being respected, we'll have to deal with it. But let's not get carried away. Let's just wait to see what happens here.
KELLY: Governor, we'll see you in July.
KASICH: Ok, Megyn it's going to be great. We'll see what it is.
KELLY: Good to see you. I understand you're not working on the golf game so that should tell us something. See you soon.
KASICH: All right. Thanks.
KELLY: Coming up next, one doctor getting a hard lesson in bedside manners after a patient leaves his cell phone recording during an operation and Judge Napolitano with the terrible thing that happened, next.
KELLY: Well, a Virginia man in for a colonoscopy, inadvertently records some sounds during his operations. It's embarrassing stuff. Not for him, but for his medical staff.
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UNIDENTIFIED FEMALE: After five minutes of talking to you, I wanted to punch you in the face and man you up a little bit. Make sure you're down. Accidentally rub up against it. There's some syphilis on your arm or something.
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KELLY: I wish we had more time. It gets worse. And now that man has won half a million bucks in a big lawsuit, but will it stand? Judge Andrew Napolitano is our Fox News Senior Judicial Analyst.
ANDREW NAPOLITANO, FOX NEWS SENIOR JUDICIAL ANALYST: Thank you for this great story. In a word no, it won't stand.
NAPOLITANO: The presumption is freedom of speech. The exception is defamation. Defamation is language that harms you financially. Not emotionally.
KELLY: Who got pinched in the lawsuit? Does the anesthesiologist is the worst one.
NAPOLITANO: Right. The anesthesiologist, a female and the gastroenterologist is actually a male, who's performing the procedure.
KELLY: As if that weren't insult enough.
NAPOLITANO: Having a raunchy conversation about the plaintiff, who is asleep, they think, is asleep, and he's asleep. But he rolls over and his iPhone hits record, the iPhone was somewhere in his body and recorded the whole thing. He goes home a couple of hours later, and he hears them really assaulting his personality. And he sues for defamation. This is not defamation. At best it's intention of infliction of emotional distress. Defamation...
KELLY: It's hard to argue that when you're asleep.
NAPOLITANO: Correct. Defamation is when someone publishes a false hood to the world.
KELLY: It's not a frivol suit. You think the jury was inflamed like the colon.
NAPOLITANO: No pun intended. I understand them being inflamed. That's why we have pallet courts to tamp the jury down. This should be a zero.
KELLY: Who -- what should happen to this? Apparently the anesthesiologist, she and her practice have to pay.
NAPOLITANO: This is a case for professional discipline, because her words were inappropriate. Her treatment of his body was appropriate. Her professional skills were appropriate. But they were...
KELLY: No actions are listed against the doctor or the Virginia on the board...
NAPOLITANO: Because instead of filing a complaint with the Board of Medical Examiners in Virginia, this guy filed a complaint with the trial court of general jurisdiction or jury would have him half a million dollars.
KELLY: This is -- isn't everybody's worst nightmare. It's bad enough to have to worry when you're under sedation that you're going to say something crazy, never mind your doctor saying you're -- talking about the body. I'm having a colonoscopy. I'm already having a really crappy day.
NAPOLITANO: Ms. Kelly if you were on the table you would not be saying about you what they said about this guy.
KELLY: It's not the same for everybody, Judge.
NAPOLITANO: This is what happens in defamation cases, the trial publicizes the defamatory words more than the original...
KELLY: That shows his courage.
NAPOLITANO: That just shows he's crazy.
KELLY: Let me tell you, the sounds that go on in a colonoscopy are embarrassing enough. I wonder if he bleeped out some of the tape.
NAPOLITANO: Did you choose this story for me?
KELLY: I'm just saying, I like Katie Couric have been there and you do not need this insult.
NAPOLITANO: I would've thrown this case out of my courtroom.
KELLY: I would have appealed to somebody more reasonable. Great to see you, Judge.
NAPOLITANO: Love you.
KELLY: You too, bye. We'll be right back.
KELLY: I was reading Twitter and the reactions to our last segment. Jeff says we need to have a redo on our last segment with Judge Nap, when Brian Kilmeade comes on this week. Because they said he's always the butt of so many jokes. Let me know your thoughts on Facebook and Twitter. See you tomorrow at 9:00.
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