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Kelly File

Race to make first GOP debate heating up; Should Mike Huckabee apologize for his Holocaust reference?

This is a rush transcript from "The Kelly File," July 27, 2015. This copy may not be in its final form and may be updated.

MEGYN KELLY, FOX HOST: Breaking tonight, polls are moving, the race is changing. And more than a dozen republican candidates are trying to make themselves heard with a little more than one week left to the debate that could change everything, and determine potentially who winds up in the oval office.

Welcome to THE KELLY FILE, everyone. I'm Megyn Kelly.

Just ten nights from right now at this very hour, ten republican candidates from a field of 16 will stand on a stage in Cleveland, Ohio. The debate will be under way at this moment beginning at 9:00 p.m. Eastern Time. They will take question from yours truly along with Bret Baier and Chris Wallace in a televised showdown that will change the 2016 race for the White House without question. Between now and then it will get very interesting.

A lot of folks assume Donald Trump would flame out by now. They have been proven wrong. Others thought we would never see a woman on that stage.
They could still be wrong. Still more predicted that Chris Christie, Rick Perry or Bobby Jindal did not stand a chance and still all the three find themselves potentially in play with six key player separated by less than two points in the polls. Some folks are suddenly spending big money to make an impression, and there could be signs of some last-minute surprises taking shape.

Joining me now, FOX News digital politics editor Chris Stirewalt who is intimately involved in the debate process, as I can attest firsthand working with you at length and already today, we had a lengthy meeting doing one of the most important things you can do in the presidential process which is to come up with questions for these guys and potentially gal, who will stand on this stage this time in ten days.

And Chris, let's just talk about how the polls are moving because it's going to be the top ten candidates in the GOP field who get to face off on that night in Cleveland. And the bottom numbers are starting to move. There's fluidity tonight.  

CHRIS STIREWALT, FOX NEWS DIGITAL POLITICS EDITOR: Oh, yes. Well, Donald Trump is human fluidity. He came into this race, and he has upended everybody's applecart. And especially for, there's a magic line, there's a magic divide. You have about eight candidates who are at five points or better statistically on average in the Real Clear politics average polls.
Now, that's not the average we're going to use, but it's not a bad benchmark at this point for who's going to be in and who's going to be out. It is something to work with. So, you have the --

KELLY: Do you look at this right now? Leave this on the board. You get Trump, Bush, Walker, Rubio, Huckabee, Carson, Cruz, Paul. They're all looking good, according to the Real Clear Politics average, which again is not what FOX News uses, but if we did, all eight of those would look good.
Then it gets dicey on the last two.  

STIREWALT: Right. And those last two spots, you have got essentially another eight or nine candidates who are all vying for those two spots, and it gets tough. So that's why, when you have entropy, when you have Donald Trump, who you would say he's still there. Yes, he's still there, but the numbers are far from solid. And you have all of the --  

KELLY: He would have had a colossal fall, right? I mean, he's atop the field right now, according to several polls that just came out.  

STIREWALT: There's -- I have no expectation that that's not going to happen. I have every expectation that he will stay in the top ten. What I mean is that when the chaos that he creates has an effect on other candidates. So, for example, if Donald Trump got stronger, Ted Cruz might get weaker still. If Donald Trump collapsed one of one of these down ballot candidates like Carly Fiorina might see a rise. If Donald Trump drop five points, those five points would go somewhere. It's a Mickey Mouse balloon. You squeeze one ear, the other ear is going to get bigger.  

KELLY: Who has the most to gain out on that debate stage? And who has the most to lose? Would it be Donald Trump has the most to lose?

STIREWALT: I mean, at this point for him, he can't really do worse or do more wrong, he just goes out there and he goes throw hand grenades, and horseshoes and kitchen sink and whatever else he can think of to throw.

KELLY: I'm wearing a flak jacket.  

STIREWALT: Right. Exactly. Now, on the other hand, Rick Perry for example, you want to talk about the stakes in this election. Rick Perry is right there. He is either number ten or number nine. Right there in the bubble. There's a guy that needs a good debate performance to demonstrate to republican voters that he's for real this time. And if he's not on stage, he can't do that.  

KELLY: Last time around he didn't do so well in the debates. I remember this distinctly. We all thought that Rick Perry was going to come out guns blazing, you know, he's a beloved governor down in Texas, people are waiting for him to get into the race. He did. He had that debate and it was --

STIREWALT: Poof. And so, what about Jeb Bush? What about Scott Walker? What about Marco Rubio? What about the punitive frontrunners? What about those guys?

KELLY: What's their goal? When they get up there, is it, you know, do no harm? Or is it I've got to land some blows? I've got to make my case. I've got to stand out in this field of ten.  

STIREWALT: If your Jeb exclamation point. Your job is to point to the rest of --

KELLY: Jazz hands.  

STIREWALT: -- and say, these guys, really? Okay. That's what he wants to do is let Trump suck up all the oxygen and let him be the dignified statesman. If you're Walker, you have got a lot to prove, that you can handle it on a national stage. You did a good job in Wisconsin, Republicans like you. Are you ready for the presidency? Because remember, there's a sniff test here. There's something that goes beyond can they answer the specifics, and the question -- when you look at these people, you will for the first time see them in a setting where you've seen presidents before. Can they comport themselves in a way with the responses, with the surety that makes people comfortable and said --  

KELLY: Right. Because --

STIREWALT: -- you know what?

KELLY: Because you hear the substantive answer, but then you also just get a feel, you just get a feel for the candidate. Like, could this guy do it or could he not do it?

STIREWALT: Um-hmm.  

KELLY: You know, and can he handle these questions? Or does he dodge and weave? He can't even handle a little old question from little old Megyn Kelly. If he can't handle that -- what?

STIREWALT: I heard some of your questions and I can say this, if I was running for president, I would be thankful by getting and go the other way from Cleveland, I'd be in Pittsburg that day instead of taking your
questions.  

KELLY: It's actually funny. You have to love these calls, you've got to hear like -- (mumbling)

(LAUGHTER)

Because it's great, I mean, these guys, they deserve to face tough questioning. As Chris says and I agree, they want George Washington's job, and they better earn it. They better show the American people that they are worthy of it. And we are the gateway. We the questioners are the gateways, we at FOX and CNN and everybody else who gets a chance to actually moderate a president and I'm sure will debate with these guys.

Now, wait, two things on Donald Trump. There is news breaking on him right now on "The Daily Beast" and I want to get that. I want to get to that, but first I want to show you what he said this weekend and we're going to
talk about this. Watch.  

(BEGIN VIDEO CLIP)

DONALD TRUMP, REPUBLICAN PRESIDENTIAL CANDIDATE: We had so many people standing outside. I just want to thank you, and actually "The Des Moines Register" is standing outside, too.

(CHEERS AND APPLAUSE)

It was sort of funny. You know, it's a super-liberal rag, not respected around here, but they come out with an editorial, Mr. Trump, I'm rated number one now in every poll, because you know what? People are tired of what's -- not because of me. They're tired.

(CHEERS AND APPLAUSE)

And they said, so you're number one in every poll, and they say, you should drop your candidacy. I say, excuse me? I mean, you know, why? I went to Laredo, and my wife came home and she was crying, and I said to myself, why are you crying? You made it home. You made it safely from the border.
She was crying. Tears were coming down her face, because she thought it was so dangerous. It's really dangerous. It's really, really dangerous.
It's the border. It's the border. Remember I made the statement about Mexico are sending, and people thought, what a horrible thing. Now, I have been -- I have journalists calling me up, I have people calling me up saying, we apologize. I was right.

(CHEERS AND APPLAUSE)

And here's the beauty of me -- I couldn't care less. I know these guys.

(CHEERS AND APPLAUSE)

No, I mean, I know them. I know the lobbyists. I have them when I need something. Sometimes if I don't know -- when I was a businessman I get a lot of criticism. Oh, you gave to the Democrats. Who cares? I was a businessman. I give to everybody. A U.S. senator calls me -- I would like to be totally idealistic, and I largely am, but the system we have is broken. Because a guy like Bush, a guy like Walker, all of these people are controlled by the people who give them their money. It's true.

(END VIDEO CLIP)

KELLY: So we learned a bit in that little bit. First of all, huge crowds as they're continued to be for Donald Trump. The other candidates would love to have the crowds that he gets at his events, talking about the third-party candidacy. What did you glean?

STIREWALT: I gleaned that Donald Trump says a lot of stuff. I gleaned that Donald Trump when he talks about the border, when he talks about all the stuff. When they get on that debate stage, it's going to be very hard.
You can't fact check it, you can't do it in real time.

KELLY: Uh-mm.

STIREWALT: Because he makes these claims, like I have journalists call me and say that they're sorry and that they were wrong. Which journalists?
Who? When? Where? Who is this?

KELLY: Uh-mm.

STIREWALT: And he just keeps moving through. He rolls like a free train. And the question is, for him, in a debate, in a one-minute increment of time, with you pressing him, with Bret pressing him, with Chris pressing him, is he going to be able to just bulldoze through or is he going to have to fill in the blanks?

KELLY: My own impression is, if you dodge and weave enough, the viewers will hold it against you. The anchors -- the viewers need to understand the debate we have far less opportunity than, say, here on THE KELLY FILE to interrupt the candidate and make them answer the questions we ask, but there are rules that govern this debate. But we're going to try. And if you continue to dodge, they know, they know when you dodge. So, my advice to these candidates is, don't make me hurt you.

(LAUGHTER)

STIREWALT: Oh, man.  

KELLY: We've got to get to this. Because this is just breaking on "The Daily Beast." The headline is ex-wife, Donald Trump made me feel violated during sex. The next line is, Ivana Trump once accused the real estate tycoon of, quote, "rape." Although she later clarified not in the criminal sense. And the essence of this piece, I'm just reading this literally as we are on the air is that during their divorce proceeding, which was ugly, she accused him of a, quote, "violent assault pulling back her arms, pulling back fistfuls of her hair" and then, quote, "raping her in a vicious manner."

Donald Trump has previously, this is back in 1989 this allegedly happened. He has denied it previously, years and years ago saying it is obviously false, and going after the guy who wrote it as a vindictive and jealous man. Somebody who speaks for Donald Trump has come out and denied it as well. And added that legally he says, you cannot rape your spouse -- although I'm not sure about that as a legal matter.

STIREWALT: Yes.

KELLY: I'll leave that for another day. But what does this tell us now? What does this tell us? It's getting ugly for one thing.

STIREWALT: Well, it's getting ugly for one thing. Number two, this is
old.  

KELLY: Very.

STIREWALT: But in the case of Donald Trump, we have these decades reaching back to the 1980s of a public life and the colorful one of that.  

KELLY: But this is how they get around that, Chris. They start the article, alright? They start the article by saying Donald Trump introduced his presidential campaign to the world with a slur against Mexican immigrants accusing them of being rapist. And then they say this was an unfortunate turn of phrase for him, and then they get into this matter from1989 in a divorce proceeding where the audience needs to understand often both sides say very ugly things that may or may not be true.  

STIREWALT: But his lawyer ought not to have said what he said, for a guy running for president.

KELLY: You can't rape your spouse? That's not going to fly.  

STIREWALT: Don't say that. Say, this is asked and answered long ago address and your prurientdisgusting interest in this case reflects your bias divide. Click. Not, you can't rape your spouse. You got to be better than that.

KELLY: And you know, he's -- I don't know what his relationship is like with his ex-wife. I know he has a wonderful relationship with his children, who she is their mother, and he hasn't been given the opportunity to respond to this piece that's just breaking up. But we see this happen a lot. You run for president, they will go after everything. Not making a judgment on it, just saying it happens. Chris, good to see you.  

STIREWALT: You bet.

KELLY: We'll have another debate meeting on Wednesday. More questions.
It's very exciting.  

Well, our political coverage will continue with Mike Huckabee's heated comments over the Iranian nuke deal, to which President Obama responded directly today. Why would he do that? And how helpful is that to Governor Huckabee? Marc Thiessen and Mark Hannah weigh in on a word that Governor
Huckabee is refusing to walk back.  

KELLY: And then, as the Black Lives Matter movement gets bigger and louder, how significant are the groups that are now posing new threats to
the GOP? Kevin Jackson is here on that.  

Plus, THE KELLY FILE has just learned that the service members killed and injured in the Chattanooga attack may not be in line for Purple Hearts. Guess why? Guess why? Give me your thoughts on Twitter at Megyn Kelly. Colonel Tony Shaffer is here.

(BEGIN VIDEO CLIP)

MAJOR GEN. PAUL W. BRIER, U.S. MARINE CORPS: Rapidly going from room to room, they got their fellow marines to safety. Once they had gotten to safety, some willingly ran back into the fight. >

(END VIDEO CLIP)

(COMMERCIAL BREAK)

MIKE HUCKABEE, 2016 GOP PRESIDENTIAL CANDIDATE: This President's foreign policy is the most feckless in American history. He's so naive he would trust the Iranians, and he would take the Israelis and basically march them to the door of the oven.

(END VIDEO CLIP)

KELLY: Uh-mm. That was former Governor of Arkansas Mike Huckabee on Saturday. Commenting on the Iranian nuclear deal. Governor Huckabee has refused to back down from the comment, and today President Obama responded.

(BEGIN VIDEO CLIP)

BARACK OBAMA, PRESIDENT OF THE UNITED STATES: The particular comments of Mr. Huckabee are I think part of just a general pattern that we have seen that is -- would be considered ridiculous if it weren't so sad.

(END VIDEO CLIP)

KELLY: Joining me now, former chief presidential speechwriter for George W. Bush and FOX News contributor Marc Thiessen, and Mark Hannah who was a campaign aide for both the Obama and Kerry, presidential campaigns. It's good to see you both.

MARC THIESSEN, FORMER CHIEF PRESIDENTIAL SPEECHWRITER: Good to see you, Megyn.

MARK HANNAH, FOX NEWS CONTRIBUTOR: Good to see you, Megyn.

KELLY: Marc Thiessen, let me start with you. So, you know the President comes out saying, it's sad, really, it's sad this tone and I guess the substance as well that are used by a presidential candidate. Your thoughts?

THIESSEN: Well, in terms of the tone, this is coming from the same president who has been going out and saying every day that whoever opposes this deal wants to have war with Iran. So spare me the outrage about the state of our political discourse.

But in terms of the substance, look, I wouldn't have chosen the words that Governor Huckabee did, but he is right, it is a fact that if Iran gets a nuclear weapon it will have the capability to literally annihilate the state of Israel. Prime Minister Netanyahu has said that this deal will pave the way to an Iranian nuclear bomb. A poll on Friday showed that 71 percent of Israelis agree with him. So, if you agree with that, then what Governor Huckabee said is inarguably true.

KELLY: What was it, Mark Hannah? Was it the actual words, which, you know, are shocking to hear? Or was it the tone in which he said it?

HANNAH: I think the fact that anytime somebody brings up Nazis or the holocaust or Hitler to make inflammatory remarks to try to denounce your political opponent, we have to take a step back and realize what we're talking about here.  

KELLY: Let me just ask you, I'm going to let you finish with. Let me just ask you because the distinction here is people do use that Nazi rhetoric.

HANNAH: Right.

KELLY: But the distinction here is he is actually talking about the annihilation of the Jews by their enemies. It's not like, oh, you're talking about these protesters are like Nazis. You know, it's something -- he's saying, this deal is going to lead to their mass annihilation.

HANNAH: Right. Well, I think that's tremendously offensive to the majority of American Jews who frankly want Congress to support the President's deal with Iran. And that is a poll by the Jewish journal, so either Mike Huckabee thinks that those people want to be led to the door of the oven, or he thinks they're imbeciles or insane somehow.

I mean, the thing that's really frustrating is that there's a time for civility, and civility is not a luxury. There's a rabbi who actually is opposed to this deal with Iran writing in "Time," magazine who basically said, look, it's a free country we're free to compare our elected leaders to Hitler in the Nazis if we want. But it's disgraceful to do so. Which is why Jeb Bush has come out frankly and denounced it. It's frankly why Governor Pataki has come out and denounce it.  

KELLY: What do you think, Marc? Was that a comparison by Governor Huckabee of our President Barack Obama to Adolf Hitler?

THIESSEN: No, it was a comparison of Iran to the Nazis.  

HANNAH: No, he said the President would walk them to the door.

THIESSEN: This deal is walking them to the door of the oven is what he's saying. And look, the reality is the difference between the Nazi regime and Iran is that Iran does not yet have the capability to kill on the scale of its hatred. A nuclear weapon would give Iran that capability. We made clear his desire to annihilate the Jews, the Iranian regime has done the exact same thing.

HANNAH: Right.

THIESSEN: They said, Israel has no cure but to be annihilated. The Zionist regime is a cancerous tumor and will be removed. This regime, if you believe this agreement is going to pave the way as Prime Minister Netanyahu said, to an Iranian nuclear weapon, then the conclusion is
inescapable.  

KELLY: Go ahead, Mark.

HANNAH: Governor Huckabee has every right to denounce the inflammatory comments made by Iranian politicians to stir up the extremist elements of the Iranian public. But he does not have the right to use inflammatory comments to stir up the extremists elements of his base in doing so. He's basically becoming what he despised. Let's pray that two sets of politically ambitious hotheads in Iran and the United States don't lead us to war. Nobody wants Iran --

KELLY: But now, are you comparing Governor Huckabee to the lunatics in Iran who live to kill Israel? Because now you're doing it. Right? Because it's like Governor Huckabee often uses colorful language.

THIESSEN: Right.

KELLY: Maybe not as much as colorful as some of the female anchors on, you know? You know, I'm just saying, he uses colorful language in a different way. Is this him trying to make an important point in a way that will get him attention, Marc Thiessen? Or is this a man who want to be on the presidential debate stage next Thursday and is doing something to make headlines?

THIESSEN: I think it's probably both. I think he's making an important point and he's trying to get attention, but he's also trying to counter what Mark just did, which is dismiss this idea that the Iranians when they say these things are just trying to rile up their hardliners. They believe it, Mark. We believe these words. We dismissed Adolf Hitler's words in the 1930s --

HANNAH: It's not the same thing.  

THIESSEN: And we paid a terrible price for it. It is. When people make their intentions clear, you cannot dismiss them or you pay a terrible price.

KELLY: Great to see you both. Thank you.

THIESSEN: Thanks, Megyn.

KELLY: Well, Republicans also came under attack this weekend from the Black Lives Matter group, as those folks try to draw new political attention to their cause. Kevin Jackson is next with the latest twist in this debate and how it relates to the presidential debate coming up.  

Plus, the "New York Times" broke a big story on Friday, reporting on new evidence that Hillary Clinton broke the law with her e-mail server. Then they had to walk that back, and man did they get eviscerated by their own public editor. So what is the truth here?

Judge Napolitano on that in a moment.  

(BEGIN VIDEO CLIP)

HILLARY CLINTON, D, PRESIDENTIAL CANDIDATE: I am confident that I never sent nor received any information that was classified at the time it was sent and received.

(END VIDEO CLIP)

KELLY: Developing tonight, new questions about race. In the 2016 campaign as the head of the Black Lives Matter protest group threatens to disrupt the GOP convention and possibly the debate. The group made a lot of political news last week when protesters showed up at a big meeting for liberal Democrats and disrupted speeches by both Bernie Sanders and Martin O'Malley. Governor O'Malley then created more controversy, by suggesting to the hecklers -- wait for it -- wait for it -- that in fact all lives matter.

(BEGIN VIDEO CLIP)

GOV. MARTIN O'MALLEY, 2016 PRESIDENTIAL CANDIDATE: Every life matters, and that is why this issue is so important. Black lives matter, white lives matter, all lives matter.

(END VIDEO CLIP)

KELLY: Think again, Governor. Governor O'Malley under pressure from the group later apologized for saying that, touching off a new round of debate about why someone would have to apologize for suggesting that all lives matter. This is how stupid our political discourse is.

Now we are seeing Democrats are out trying to dig out of this hole by pushing arguments like this one, which played out over the weekend --

(BEGIN VIDEO CLIP)

S.E. CUPP: I think a lot of people recoil at the idea that when a Democrat says all lives matter, and this starts a fight inside the Party.
--

NEERA TANDEN, CENTER FOR AMERICAN PROGRESS: We don't need to say all lives matter, because white citizens are dying at the hands of police. And that's why it's interesting to me that people think there's something wrong with actually saying. We need so say black lives matter, because we live
in this context where African-Americans are dying.  

(END VIDEO CLIP)

KELLY: Joining us now, Kevin Jackson, the executive director for The Black Sphere and author of the book "Race Pimping." Kevin, Neera tells us that no whites are being killed, by police officers and that's why you have to say just Black Lives Matter, not all.

KEVIN JACKSON, THEBLACKSPHERE.NET EXECUTIVE DIRECTOR: It reminds me of the old country song how can you leave me if you won't go away? Look, all lives do matter. The fact of the matter is, statistics are completely skewed. I happened to have misspent my youth part of it Megyn getting a math degree, and believe it or not whites get killed by cops 30 to 70 percent more than blacks. Now, the Black Lives Matter movement doesn't want to report that. The other irony of this is while the Black Lives movement is talking about this; they're not reminding people that it's black people who are in charge of all this. They're in charge of the police; they're in-charge of the mayor's offices. They're in-charge of the
--

KELLY: The police force in Baltimore.  

JACKSON: Yes, that's my point. Everywhere that this is occurring, it's a democrat or in most cases it's black leadership that's -- that this is involved in. So the idea that Black Lives Matter is, quite frankly incredulous. And the next point is this. They're going to always bring up-- they trot out the same few -- two or three people. It's Dialo, it's Bell, and so on as if it's an epidemic. If you go back to 1999 and look at the number of blacks who have been killed by cops erroneously, you can count them on both your hands. So, this idea that it's an epidemic is yet another crazy part of this whole movement.  

KELLY: So, the immediate choose is to highlight these cases, like Darren Wilson in Ferguson, they tell everybody that this is a racist cop who killed an unarmed black man, who was saying, hands up, don't shoot. And then when that gets proven false, they say never mind, that was not true --

JACKSON: Yes.

KELLY: -- so it gets far left coverage. However, however, on the stats, Kevin, on the states, now she doesn't know what she's talking about. Plenty of white people get killed by cops. Twenty more than get killed by
--

JACKSON: Yes.

KELLY: Then black people get killed by cops. However, if you look at the rate by population, it is higher in the black community, 0.34 percent than it is in the white community, .17 percent.  

JACKSON: Yes. It is higher, but what they're not factoring in is the amount of crime being committed by blacks versus white. So, when you factor in all of the fact, all of the things that are pertinent to the discussions, as I said, whites are more likely to be killed by cops. And the other side of it is this -- now cops have a complete reason to take pause and putting themselves at risk, quite frankly in high-crime areas, because they don't want to shoot, you know, shoot at blacks that may very well be shooting at them.  

KELLY: But now, let me ask you this. Because this thing -- this is becoming like a thing. Do you believe black lives matter, or do you believe all lives matter?

JACKSON: All right.

KELLY: To the point where Jeb Bush was asked about it. This is what he said and already he's getting hit. He's getting hit hard for saying this.
Watch.

JACKSON: Sure.

(BEGIN VIDEO CLIP)

JEB BUSH, PRESIDENTIAL CANDIDATE: The political context, it's a slogan, I guess, and should he apologize? No. He believes that white lives matter, which I hope he does. He shouldn't apologize to a group that seemed to disagree with him.

(END VIDEO CLIP)

And that's what led the head of the movement to say any opportunity we have to shut down a Republican convention, we will, and went on to say -- he and others who take that position, are going to hear about it.

JACKSON: Well, I hope she shuts down the Democrat convention, because they're allowing illegal immigration, and Jameel Shaw's son got killed by an illegal immigrant. Apparently he happens to be black, apparently black lives don't matter when they're killed by illegals, and that happened certainly a lot more than it does with blacks. You're not going to find on the black lives matter website anything that -- anyway reflects that. So look, if they want to go talk to the Republicans, I think the Republicans should stay strong and say very succinctly all lives matter. We're going to address the situation with police, not from a racial perspective, but from a good quality human being perspective and not worry about one group over another. This idea that blacks are being discriminated unfairly is just not the case.

KELLY: Well, I mean there have been charges brought against cops in certain jurisdictions, but in many others it's turned out to be a false narrative, Kevin, good to see you.

JACKSON: You too.

KELLY: When the New York Times reported Friday that Hillary Clinton broke the law with her emails, you can bet it got serious attention. Then the Times had to correct its reporting, a lot, Chief White House Correspondent, Ed Henry will fact-check the Times next.

And Judge Andrew Napolitano will tell us what this means for Mrs. Clinton.

Plus, Whitney Houston's daughter has now died and the case is being investigated as a homicide, the new twist in the drama just ahead.

(COMMERCIAL BREAK)

UNIDENTIFIED MALE: From the World Headquarters of Fox News, it's The Kelly File, with Megyn Kelly.

KELLY: Well, breaking tonight, big new developments in the controversy over Hillary Clinton's use of a private email server during her time as Secretary of State. Two independent federal watchdogs alerting the FBI to a possible breach of national security information, after determining that classified material was shared over Clinton's personal system. The New York Times was first to print the new revelations, but then had to walk some of them back. The Clinton campaign claimed that as a big victory, but was it? Judge Andrew Napolitano is here on the legal follow up, but first, we go to Chief White House Correspondent Ed Henry, Ed?

ED HENRY, FOX CHIEF WHITE HOUSE CORRESPONDENT: Megyn, good evening. Breaking tonight as well, Republican Tray Gowdy has just confirmed to us he's cut a deal with the State Department to get several thousands of pages of emails on Benghazi from Hillary Clinton's top aides, documents we'll see for the first time in the next 24 to 36 hours. That comes as -- tonight I spoke to an adviser of Hillary Clinton who confirmed your point. They think they won by forcing the New York Times to correct a story that went too far by claiming there was a criminal investigation on the email issue.

So let's stick to the facts, number one, there's no criminal investigation tonight, but those two inspectors general did conclude there's classified information currently in Hillary Clinton's personal server, despite what she said at that news conference in March.

Second fact, not a criminal probe today, but once the Justice Department looks as it, the FBI, it could become criminal.

Third fact is the beyond the legal question, the Intelligence Community said in a statement Friday, to have classified information on a server was poor judgment by Clinton. However, the weekend stuck to a very legalistic answer, while even some Democrats like Doug Schoen today told Fox Business her explanations are simply not adding up.

(BEGIN VIDEO CLIP)

HILLARY CLINTON, 2016 PRESIDENTIAL CANDIDATE: I am confident that I never sent nor received any information that was classified at the time it was sent and received.

DOUG SCHOEN, DEMOCRATIC STRATEGIST: The revelations about the emails, the two inspector generals, Stuart, it raises for the first time in my mind a question -- still a slight question, but a question nonetheless.

(END VIDEO CLIP)

HENRY: Now we're also hearing the State Department on Friday is likely to raise a whole new batch of Clinton emails from the State Department. The Intelligence Community may be pushing back on the raising on some of that, concerned that classified information is coming out. So it could be a whole new showdown by the end of week, Megyn.

KELLY: Do we know how the FBI found this out, Ed?

HENRY: They found it out, because two different inspectors general, one from the State Department, one from the Intelligence Community said we reviewed this from a security standpoint, not a criminal standpoint, that's where the Times were tripped up, but from a security standpoint, they are deeply concerned. And they looked at a sample of 40 emails. Remember there's tens of thousands of emails. They looked at 40, and found 4 classified ones. That led these inspectors general to say there's probably hundreds, maybe thousands of classified emails in there, Megyn.

KELLY: Wow. Thank you.

Joining us with more, Fox News Senior Judicial Analyst, Judge Andrew Napolitano, and to your credit, this was the first concern you raised when we talked about the Hillary Clinton email scandal months ago. Is there classified information on these emails, a kin to what happened with General Petraeus?

JUDGE ANDREW NAPOLITANO, FOX NEWS SENIOR JUDICIAL ANALYST: That's what made me think of it, candidly. The Obama Administration was willing to prosecute, persecute, destroy the reputation of a very highly regarded general, whom the President has made the head of the CIA over documents he kept in a desk drawer in his home, because it was not an officially approved government venue. That's far less than what the inspectors general have suggested they saw that Mrs. Clinton did. They felt that whatever they read -- and we haven't even these four emails that Ed spoke about, that with such grave material on there, that under the lawyer they were required to report it to the FBI.

KELLY: Good gracious.

NAPOLITANO: Now the FBI does not investigate civil wrongdoing and it does not investigate ethical lapses. It investigates violation of federal criminal law or serious exposures for national security. The FBI will decide after investigating, is there enough evidence to prosecute someone, or should it be addressed through a non-prosecutorial route.

KELLY: This is what she says, the second sound bite that we played before the segment. This is what she says about -- she basically denied, listen.

(BEGIN VIDEO CLIP)

CLINTON: I did not email any classified material to anyone on my email. There is no classified material, so I'm certainly well aware of the classification requirements and did not send classified material.

(END VIDEO CLIP)

KELLY: So she says I didn't send any, but says explicitly there is no classified material.

NAPOLITANO: Here's what I think she's going to argue, she's going to argue that because the emails don't have word classified on them, they're not classified emails, but the inspectors general refute that argument, because they say it is the gravity of the information. It is whether that information, if revealed, could jeopardize national security that makes them classified, whether there's magic words in the line as well. Look, I haven't seen what the inspectors general sent, but I have seen the emails that are in the public domain.

I saw an email in which she talks about French jets approaching Libyan airspace. I saw an email in which she talks about the borders for the no- fly zone over at Libya. I saw an email in which she talks about the travels of Ambassador Stevens from one part of Libya to another, who as we know was assassinated. If she didn't think she had to protect that, if she didn't think those materials were sensitive, serious, confidential and classified, she had no business being the Secretary of State.

KELLY: We've had the former head of the DIA on the program many times, General Michael Flynn who said, I guarantee you that there has been hacking. I guarantee you that other forces, China among them hacked in and has read those emails, and probably did at the time, it's just too tempting and it's so easy for someone like that when it's not on secure server, even when it is they can do it, never mind when it's on a server in Chappaqua.

NAPOLITANO: The question remains, why did she do this? So she could obscure the server, so she could erase what was on there. What she would never be able to do...

KELLY: She said she didn't want -- James Carville said she didn't want Congress looking at the emails.

NAPOLITANO: Carville's probably right.

KELLY: Too bad, that's not how it works. Judge, great to see you, welcome back from vacation.

Well, the Kelly File now learning that the service members killed and injured in the Chattanooga attack may not be in line for a Purple Hearts. Why? Why not? Colonel Tony Shaffer is here next with an answer.

(COMMERCIAL BREAK)

KELLY: New questions about what looked a lot like a terror attack in Chattanooga earlier this month. Despite the confirmation that some of these marines actually ran back into the fire fight after saving countless comrades, there are serious questions about whether they will receive the Purple Heart for their bravery. As this incident reminds some of the controversy we saw following the shooting at Fort Hood. Trace Gallagher live in our West Coast Newsroom with the story, Trace?

TRACE GALLAGHER, FOX NEWS CORRESPONDENT: Megyn, the Marine Corps has confirmed that Purple Heart award packages have been prepared for the marines killed in the attacks in Chattanooga but there is a huge difference between prepared and submitted, and those packages won't be submitted until the FBI has completed its investigation. So far the feds have only called Mohammad Abdul-Aziz, a "home-grown violent extremist." The FBI says for military members, to qualify for the Purple Heart, Abdul-Aziz would need to have been in communication with or inspired and motivated by a foreign terrorist organization.

The FBI has found evidence that Abdul-Aziz did research on committing violence as militant Islamist, wrote about suicidal thoughts and becoming a martyr, and as recently as 2013, was following Anwar al-Awlaki. Al-Awlaki of course was the American-Yemeni citizen who recruited talent and planned attacks for Al Qaeda. He is also the terrorist that Fort Hood shooter Nadal Hassan was in contact with before he killed 13 and wounded more than 30. It took six years of pressure, including extensive reporting by Fox News before the army changed its policy and awarded Purple Hearts to the victims of Fort Hood. Experts point out that once you award the Purple Heart, you admit it was a terrorist attack, something the administration has continually resisted.

But the Purple Heart does more than acknowledge great sacrifice for the country; it also includes eligibility for certainly medical, educational and financial benefits. Senator John McCain says if new legislation is required to make sure the Chattanooga victims are eligible, then so be it, Megyn?

KELLY: Trace thank you.

Joining me now for more, Retired Colonel Tony Shaffer, who is a CIA-trained Intel Operative, now with the London Center for Policy Research, good to see you tonight, sir.

TONY SHAFFER, CIA-TRAINED INTEL OPERATIVE: Thanks for having me.

KELLY: So here we go again.

SHAFFER: Here we go again

KELLY: For six years, the Fox News Channel stayed on the story of why they were denying benefits to those who were hurt and killed in the Fort Hood terror attack.

SHAFFER: Right.

KELLY: Which they still don't call it terror attack. And here we go again. How much more do they need?

SHAFFER: Trace just laid out the factual basis for this being a terrorist attack, and the common denominator here, Megyn, is Anwar al-Awlaki. Catherine Herridge and I were speaking about this earlier this evening. There's no doubt, there's absolutely no doubt that this terrorist, he was not motivated because someone pulled Barney the Dinosaur from PBS. He did not attack those marines and sailors because they were grocery clerks at a store. They were representatives of the U.S. Government, and his target was based on his radicalization, and for goodness sake, it's already been reported that he was considering Jihad martyrdom as long ago as 2013.

KELLY: And that he was following Anwar al-Awlaki, and that he did online research for militant Islamist guidance on committing violence.

SHAFFER: Right.

KELLY: It's like they need to see the direct email with Anwar al-Awlaki before they'll call it oh, wait, no that too happened in Fort Hood, and they still called it workplace violence. Still. There was direct emailing.

SHAFFER: Right. I know, it's totally insane, and this is where Fox and everybody have to prevent basically the disconnecting of the dots, which the FBI and the administration is trying to do here. There's absolutely no doubt by any thinking person, anyone who's rational, Megyn, that this was a terror attack. If you don't find a direct link between ISIS and Al Qaeda, it doesn't matter. It meets the criteria. Unfortunately, Congress actually tried to change the law last year and make it easier for this sort of thing, for the Purple Hearts to be awarded in this circumstance, and they said, hey, the people investigating the FBI in this case, can make the determination. Well, in this case again it's being politicized for purposes of trying to not admit that first off, the Obama policy against this sort of thing is failing. Secondly, this individual was on U.S. soil, was in the heartland of America, a terrorist conducting a terrorist act against unarmed marines and a sailor who died in process.

KELLY: These families, these grieving families stand to suffer real losses if this isn't classified as terror.

SHAFFER: That's correct.

KELLY: And they don't get these Purple Heart benefits, correct?

SHAFFER: Correct.

KELLY: It isn't just an honor. It's actual, you know, substantive loss to them.

SHAFFER: Megyn, these families -- these folks were enlisted, they don't make a lot of money already. When you have this loss, you not only lose the service member, you lose the benefits. And this is not a lot of money, we're talking maybe between $500 to $600 a month regarding the financial benefit. But that sometimes -- that's a make or break pay. It's a lot to them

KELLY: Back pay, additional benefits, and lots of military families who don't make a lot of due.

SHAFFER: This administration just like the Iran deal, set aside the four hostages are doing the same thing here, I have never seen in my lifetime an administration so callus to the needs of individuals. This is totally insane.

KELLY: What's it going to take?

SHAFFER: It goes against factual evidence and it's just the wrong thing, period.

KELLY: Until they get the scroll from Al Baghdadi exactly, this is exactly what I want you to do and a little check at the bottom saying ok, I'm on it. These cases aren't made like that. They're made like this where you find and research and find the commitment, Colonel, good to see you.

SHAFFER: Thanks for having me.

KELLY: We'll stay on it. We will be staying on it.

Up next, new developments in the death of Bobbi Kristina, what the initial autopsy results released today reveal in what is now being called a homicide investigation, next.

(COMMERCIAL BREAK)

KELLY: Breaking tonight, new questions surrounding the death of Bobbi Kristina Brown. She was the only daughter of singers Bobby Brown and the late Whitney Houston. And she died this weekend. Police are investigating this now as a homicide months after she was found unresponsive in a bathtub. Bobbi Kristina's death sadly mirrors the death of her own mother who died three years ago. The emergency calls are eerily similar. Listen.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Twenty one year old female in the bath tub face down. P.D. is en route.

UNIDENTIFIED FEMALE: I need paramedics, apparently I have got a 46-year- old female found in the bathroom. That's all I've got right now, but they're requesting paramedics.

(END VIDEO CLIP)

KELLY: Trace Gallagher live with the story, Trace?

GALLAGHER: Megyn, in Bobbi Kristina's final moments, Entertainment Tonight is reporting that she was surrounded by her family who read Psalms 23, ‘the Lord is my shepherd and then held hands and repeated alleluia,’ as she took her final breath. One family member saying it was it's as if her mother was calling to her from the other side. Whitney Houston of course drowned in a bathtub in 2012. One person not allowed at Bobbi Kristina's bedside was her long-time boyfriend, Nick Gordon. Gordon has been estranged from the Brown-Houston families following the mysterious circumstances surrounding the death. It was Gordon and a friend who found Bobbi Kristina face down in a bath tub in her home in Roswell Georgia. Gordon is now being sued for allegedly causing life threatening bodily harm to Bobbi Kristina, as well as fraud and stealing money from her account.
Investigators say Bobbi Kristina's death remains a homicide investigation though the initial autopsy report shows there were no significant injuries or medical conditions that caused her death. Additional testing is underway. The M.E. says it could be months until they found out exactly what could the cause of death. We should mention Bobby Brown also spoke out today calling his daughter an angel, saying that her loss is "unimaginable," Megyn.

KELLY: She's with her mother now. Trace, thanks, we'll be right back.

(COMMERCIAL BREAK)

KELLY: So tune in tomorrow night or set your DVR for a big Kelly File line up. We've got Brit Hume, Howie Kurtz, Richard Fowler and our legal panel, Mark Eiglarsh and Arthur Aidala. Everybody's back from vacation. Get to work. See you then, facebook.com/thekellyfile with your thoughts now. See you. Thanks for watching.

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