This is a rush transcript from "The Kelly File," July 30, 2015. This copy may not be in its final form and may be updated.
MEGYN KELLY, HOST, "THE KELLY FILE": Breaking tonight, with just a week to go until the first GOP presidential debate, the battle between more than a dozen candidates is getting tougher than ever.
Welcome to 'The Kelly File,' everyone. I'm Megyn Kelly. The GOP field has now grown to some 17 candidates with the latest national polls confirming Donald Trump's position at the head of the pack with an edge of more than six points over his closest rival Scott Walker. But this debate could change everything. The candidates are getting ready with two big concerns, what do they want to say to the American people and what do they want to say about their various rivals?
This will be the very first chance for the voters to compare and contrast the candidates right next to each other. And if that were not enough pressure for the people taking the stage, there is one more factor that may make this debate unlike any the American people have ever seen before.
Charles Krauthammer is a FOX News contributor and author of "Things That Matter" now out in paperback with an added chapter on the "Age of Obama."
Charles, good to see you tonight. In that added factor is Donald Trump, and an aide to Governor John Kasich came out and said it is like a NASCAR driver mentally preparing for a race knowing one of the drivers will be drunk. You don't know what to expect.
CHARLES KRAUTHAMMER, FOX NEWS CONTRIBUTOR: Well, if you wanted to put it slightly more kindly, you could have said erratic and unpredictable but everybody knows that in the lead-up to this debate it's going to be all about Trump. That will be the story, no matter what happens, otherwise in the debate that will be the story that's going to be carried out by the media. That's going to be the sound bites. And the two questions are, will Trump act like a statesman or will he continue the anger and bluster show? And the second, will anybody take him on, and who will it be? On the first I know he's getting advice from the media that he should play the statesman and that would propel him. I'm not sure that he's capable of doing that but assuming he is, I'm not sure that would be successful.
He's had such incredible success with the bluster and the anger that he has tapped into that I suspect he'll continue on that. The question is, will anybody challenge him? You know, if you're a top tier candidate, there's not that much advantage in doing that particularly now early in the race.
You get into a mud fight, the others will benefit rather than you. I suspect it could be somebody who is in the middle of the pack, say a number nine, 10, or 11 today in the polls, in the bubble of the debate on the cost, who might want to take him out as a way to be the drag on slayer and perhaps the candidate for that would be Rick Perry who took him on the most strongly after his remarks -- Trump's remarks about John McCain.
KELLY: Uh-mm. And speaking of Rick Perry, should he make it into the debate? He has a lot to lose and a lot to prove, and it is an example for some of the other candidates in that terrible moment that they all want to avoid, who could forget this awful moment just four years ago when his candidacy began to implode due to one exchange on the debate stage. Watch.
(BEGIN VIDEO CLIP)
RICK PERRY, R, PRESIDENTIAL CANDIDATE: It's three agencies of the government when I get there that are gone. Commerce, education, and the -- what's the third one there? Let's see. The third agency of government I would do away with, education, the -- commerce and, let's see, I can't. The third one, I can't. Sorry. Oops.
(END VIDEO CLIP)
KELLY: Poor Governor Perry.
KRAUTHAMMER: Well, you know, there are these moments in American political history where one thing happens. Ed Muskie reportedly or supposedly crying in the snow in New Hampshire. He was the leader. He was the presumptive democratic nominee. He was done. Or Howard Dean who was leading, you remember, the famous rant, said everybody's afraid of that. Look, you and I who do live television know that you're always on the tightrope, you're always on a high wire and the candidates are slightly less experienced at that. But I think this is a chance for Perry if he makes, I don't know if he does the zinger that everybody replays that could be his moment.
KRAUTHAMMER: But, you know, it may not -- it's dangerous for any candidate to go after Trump in that sense because he zings back and you never know how that --
KELLY: How much does it play Charles, how much does it play that Trump is the front-runner, and notwithstanding, you know, all of the incendiary things he has said, he's still in the number one position. So the GOP voters right now seem to like him. So, how risky is it to the other candidates if they go after him hard?
KRAUTHAMMER: I think it is highly risky, the fact that he is in front is remarkable. You know, I haven't changed in my opinion his candidacy but I have changed my opinion on his durability. I mean, this is a guy who mocked the service of a prisoner of war, who was tortured for five-and-a- half years and refused early release and Trump got away with it. He not only got away with it, it wasn't even a speedbump in his rise in the polls.
So he clearly is tapping into something. He will not go away easily. And I think it is a risk. But Perry has wanted just to pick an example. He called for Trump to pull out of the race after that. So he's already out on a limb. And if he wants to define himself, remember, Trump is way out ahead. But it's a field of 16.
KRAUTHAMMER: He's way out ahead but it's still only a quarter of a vote.
KRAUTHAMMER: So, three-quarters of the Republicans out there are not set on Trump.
KELLY: The other candidates are said to be preparing as you would expect murder boards and standing in front of their teams and doing it, you know, the way that you're expecting them to. Donald Trump is not preparing at all. He's over in Scotland and he is enjoying the sports and so on. He says, look, fine, my plan is to be nice to everybody. What they need is a moment. What these other guys need is a moment, Charles, and who could forget this one the last time around that helped Newt Gingrich win South Carolina? Watch.
(BEGIN VIDEO CLIP)
JOHN KING, CNN: She says you asked her, sir, to enter into an open marriage. Would you like to take some time to respond to that?
NEWT GINGRICH, R, FORMER PRESIDENTIAL CANDIDATE: No, but I will. I think a destructive, vicious, negative nature of much of the news media makes it harder to govern this country, harder to attract decent people to run for public office. And I am appalled that you would begin a presidential debate with a topic like that.
(END VIDEO CLIP)
KELLY: That was huge. And what are the odds that one of these candidates will try for a moment like that?
KRAUTHAMMER: Well, it's always easier to go after the press, the media.
That can always to be successful.
KELLY: Even this press? What?
KRAUTHAMMER: Well, of course. I would exclude temporarily FOX. But there are going to be other debates and they will be able to play off the media and, you know, Newt took off like an Atlas rockets after that. But it is, you know, it's a lot riskier to go after another candidate.
KELLY: We are having meetings every day on this now. And as I've said before Chris Wallace, Bret Baier and I are merciless with each other when it comes to the content of these questions. So, they will be just as tight and as strong as they can be when we go out there a week from tonight.
Charles, looking forward to seeing you right after that a week from now.
KRAUTHAMMER: It will be a pleasure, thank you.
KELLY: Well, we also have breaking news tonight on a new challenge for the GOP front-runner with reports suggesting that Donald Trump may be changing his position on immigration. Chris Stirewalt and Howard Kurtz joins us right after this break on whether that's true and what it could mean for the debate and the presidential race.
Plus, new outrage with one of America's top supermodels. I know, James, I'm sorry.
Brian Kilmeade is here on why Gisele is now being criticized by people around the globe. And we showed you last night the body cam video from a Cincinnati cop now charged with murder, but his lawyer says there is much more that we don't see, and he is here live in a ‘Kelly File’ must-see interview.
(BEGIN VIDEO CLIP)
RAY TENSING, UNIVERSITY OF CINCINNATI POLICE OFFICER: Well, I have to figure out if you have a license or not. Go ahead and take your seat belt off. Stop! Stop!
(END VIDEO CLIP)
KELLY: Breaking tonight, a new challenge for the GOP frontrunner over recent weeks. Donald Trump has climbed to the top of the republican polls in large part by talking tough and refusing to back down on the issue of illegal immigration. Even when he traveled to the border last week and was hit with blistering questions from some Spanish language media outlets.
But tonight a new column on one of the country's most influential conservative websites is questioning Trump's stand suggesting that he, quote, "may be going mushy on the immigration issue" and pointing to an interview yesterday as exhibit "A."
(BEGIN VIDEO CLIP)
DONALD TRUMP, R , PRESIDENTIAL CANDIDATE: We have to bring great people into this country. Okay? And I want to bring, I love the idea of immigration, but it has to be legal immigration. Now, a lot of these people are helping us whether it's the grapes or whether it's jobs, and sometimes it's jobs. In all fairness, I love our country, but sometimes it's jobs that a citizen of the United States doesn't want to do. I mean, there are jobs that a lot of people don't want to do. I want to move them out, we're going to move them back in and let them be legal. But they have to be here legally --
DANA BASH, CNN ANCHOR: Legally, like --
TRUMP: Excuse me. Otherwise you don't have a country. You don't have a country. If people can just pour into the country illegally you don't have a country. But I would expedite the system. We're going to do something.
I've been giving it so much though, you know, you have the humanitarian basis. You have a lot of deep thought going into this, believe me. I actually have a big heart, something that nobody know. I mean, a lot of people don't understand that. But the agreement -- it's a tough situation.
We're going to do something and one of the things we're going to do is expedite. When somebody is terrific, we want them back.
BASH: So, they have to be leave too?
TRUMP: But they have to be legally -- if they're with their parents, it depends. But look, it sounds cold and it sounds hard, we have a country.
Our country is going to hell. We have to have a system where people are legally in our country.
(END VIDEO CLIP)
KELLY: Joining me now, Chris Stirewalt, our FOX News digital politics editor and Howard Kurtz, who is the host of FOX News "MEDIA BUZZ." Guys, good to see you.
So, you know, I don't really understand exactly what I heard there Stirewalt but it was something along the lines of, you have to move them out and then you have to move them back in and you have to expedite it, at least you have to expedite the dreamers, but it requires some deep thought and he's giving it that deep thought and he wants to do something. With all due respect to Mr. Trump, it's not exactly clear and concise.
CHRIS STIREWALT, FOX NEWS DIGITAL POLITICS EDITOR: Well, look, he did say elsewhere in the interview, it's hard to get it all together, he did talk about mass deportation. Mass deportation would be necessary of some kind but then people would be expeditiously returned into the United States.
There would be like Olly Olly Oxen Free, everybody is out and then millions get to come back in or something. It was not exactly clear. And perhaps he or his campaign will provide greater clarity in the days to come. But the problem here isn't with the policy specifics. The problem here is, he sounds like a politician. He sounds like the stuff that Hillary Clinton says or that any of the politicians say, because immigration is this impossible issue and so politicians just chop up buckets of word salad to get out of talking about it.
KELLY: Word salad. Word salad. But this is, if that's -- I mean, I'm not exactly sure what I heard there, Howie. But obviously Ben Shapiro of Breitbart did not like what he heard. He thought there was a mushiness on the issue of immigration. But this is the problem, it's both the appeal of Donald Trump and the problem with Donald Trump is that, you know, the sweeping generalities with which he speaks are appealing, and he say, yes, he's a winner, right, okay. But then when he gets pressed on the specifics, it sort of, you know, it gets a little meandering at times.
HOWARD KURTZ, FOX NEWS HOST, "MEDIA BUZZ": But this is how Donald Trump breaks the rules and confounds the prognosticators. Because obviously, he tripped over his own words in that CNN interview. But the essence of his position is, get rid of the criminal illegal aliens and for the others give them a path to legal status but not citizenship.
KELLY: But the criminal illegal aliens then he says, they can all come back but on an expedited basis. I think. I'm not sure.
KURTZ: It didn't compute, as they used to say on an old TV show. But journalists are pouncing on that, he's in over his head, he doesn't know what he's talking about. The summer fling is over. He's going to implode.
But what the average voter hears is, pretty blunt talk on immigration and if he kind of went off the rails a little bit, well, it's because he's unscripted. They don't parse his words the way people in the media community do.
KELLY: Yes. The other thing is Chris, is that polls after polls shows that conventional wisdom about Donald Trump is wrong, wrong, wrong, and he had this exchange just today. He's over there in Scotland for the -- you know, I don't follow sports. Golf?
STIREWALT: Something with knickers.
KELLY: Something with the sports situation and women. That's good. In any event, he was pressed once again on his relationship with Hispanics and whether he would get hit in the polls. And listen to what he said, and by the way what he says about the polls is true, watch.
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: What section of America do you represent?
TRUMP: I think I represent a big question. I guess the polls today have me with 16 or 17 candidates had me at 25 percent, and the next person was at 12 percent. So, that's a big difference. So, we represent a very big section of the country.
UNIDENTIFIED MALE: Not the immigrant population though presumably?
TRUMP: Excuse me?
UNIDENTIFIED MALE: The immigrant population presumably?
TRUMP: Oh, no, I did well. In fact, the Hispanics, a poll came out two days ago where I'm number one with the Hispanics. I know you're surprised to hear that. But I'm number one with the Hispanics and I said that if I get the nomination I will win with the Hispanics.
(END VIDEO CLIP)
And you know what, Chris? He's right. You look at the public policy polling, the poll that just came out, he had the highest favorable rating of Hispanics of any of the GOP contenders with 34 percent.
STIREWALT: That is not a poll I look at. I avert my eyes from that poll.
That's a democratic firm, their partisan bolster and we're not --
KELLY: All the more reason -- if they are going to skew, aren't they going to skew something that's negative for him?
STIREWALT: I don't look at them when they're early, I don't look at them when they're late, I don't look at them when they skew right, when they skew left. I avert my eyes and suggest you avert yours similarly.
STIREWALT: But the truth is Donald, in nearly one in five Republicans, self-identified republican primary voters say, they like Donald Trump.
Nearly one in five. That's a lot. Now, look, they like him -- not because of who his wives were. They don't care about what his policies are particularly. I agree with Howie on that. I don't think they care particularly whether he is politic, in fact they like that he's not politics.
KELLY: That's right.
STIREWALT: They like it when he's brash and maybe a little crass. But, here's the big but. The big but is as he is there at the front. As he gets closer to the finish line and he starts putting the club a little bit, as he starts worrying about, gee, maybe I can be the front-runner, maybe I can be the guy, and we saw this with Gingrich, we saw this with Herman Cain, and we saw this with other frontrunners in the 2012 cycle, you get to the top, you want to stay there and you start changing your game.
KELLY: All right. I don't know. He is unlike any politician we have ever seen before. I think it's fair to say.
KURTZ: Correct me, Megyn, he goes to Scotland for a golfing tournament and he still gets 100 times more coverage than all the other Republicans back here in the states.
KELLY: That's right. I mean, and his mere celebrity causes people to want to see him and listen to him and follow him and report on him.
KURTZ: And when the --
KELLY: Go ahead, Howie.
KURTZ: And when the press attacks him, voters say, we don't like the press anyway. So, he must be doing something right.
KELLY: That's true. Speaking of crass, I'll forgive you for that big butt comment. Good to see you both.
Isn't it like 12:30? Also tonight, a rough 24 hours for the democratic front-runner just got a little worse with the release of some new polls and a new report that's raising serious questions now about her private e-mail server. It went from bad to worse today. Ed Henry and Mark Thiessen are here on that.
Plus, new evidence late today suggesting search teams may have found Flight
370 missing for more than a year now, that Malaysia Airlines flight. We'll show you what's now turned up, just ahead.
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: It would not surprise me if more debris would be washing up in that part of the region in the coming weeks.
(END VIDEO CLIP)
KELLY: Developing tonight, a string of troubling headlines for the democratic frontrunner Hillary Clinton today. Opponents are gaining ground or even passing her now in the polls while voter opinion hits a new low.
Quinnipiac University finding more than half now have an unfavorable opinion of Mrs. Clinton. Look at that. And it comes as new reports suggest that classified e-mails from her private server contained information from five different intelligence agencies. A development experts suggest at best shows why she never should have used her own personal e-mail system and at worst may be a crime.
We'll speak with Marc Thiessen in a moment. But we begin with Ed Henry in Washington. Ed?
ED HENRY, FOX NEWS CHIEF WHITE HOUSE CORRESPONDENT: Megyn, more revelations may come Friday as the State Department releases some of the
30,000 official e-mails Hillary Clinton turned over. Though, remember, she also deleted around 30,000 e-mails which she claimed were personal. We may never see. Two inspectors general have now said there is, in fact, classified information on her server though they have acknowledge there were no classification markings allowing Clinton to maintain she did not know it was classified. Today McClatchy reported that among the classified e-mails in her server, there's information from five different intelligence agencies including material from the Benghazi terror attacks as Clinton today used in a news conference to point a finger at the State Department for the slow pace of the e-mails' release.
(BEGIN VIDEO CLIP)
HILLARY CLINTON, D, PRESIDENTIAL CANDIDATE: This is really a question for the State Department. They're the ones that are bearing the responsibility to, you know, sort through these thousands and thousands of e-mails.
(END VIDEO CLIP)
HENRY: Clinton on defense there. So, I'm thinking up new information tonight, that her camp is getting nervous about Vice President Joe Biden getting in. Sources tell me, I browse a raise of her campaign, when they learned that Biden's chief-of-staff met with Louis Susman, a big democratic fundraiser. Susman confirmed to me that there was a breakfast but insisted it was a personal meeting and he's not planning to help Biden. Well, Biden's office told me, in the wake of his son's death, the vice president and his family are going through a tough time. Any speculation by this political future they say is premature -- Megyn.
KELLY: Ed Henry, thank you. So what does this mean for Hillary Clinton?
Marc Thiessen is a FOX News contributor and former chief presidential speechwriter for President George W. Bush. Marc, good to see you. So, let's just start with this.
MARC THIESSEN, FOX NEWS CONTRIBUTOR: Good to see you, Megyn.
KELLY: They found five e-mails with classified information about it. We knew that yesterday. Now we find out they come from five different intelligence agencies, and there the big ones like the CIA and the DIA and the NSA, and the list goes on. The DNI and the list goes on. And now her critics are saying this may be a crime and it maybe one worse than General Petraeus was prosecuted for because in his situation, our own Catherine Herridge is reporting this earlier. The FBI raided his home I think it was in part because classified information was not being properly stored there in a way that would protect it. And yet, her classified information was set on her server in Chappaqua and so far I have not heard about an FBI raid.
THIESSEN: Yes. And she's not in office anymore. You're not allowed to retain classified information once you've left office. And look, those five e-mails were from a sample of only 40 e-mails that the office of inspector general was allowed to look. So, five emails out of 40 emails, that is about one in eight. If you extrapolate, that's 30,000 e-mails you're talking hundreds, probably thousands of classified emails if it continues at that rate. That is a very, very serious issue and it is, quite frankly, it is a crime, it is a crime to remove and retain classified information from its secure government facility.
KELLY: And the Clintons know that because they've been in a similar position before.
THIESSEN: No, that's exactly right. So, in 2003, Bill Clinton's national security adviser Sandy Berger was actually investigated. He removed five classified documents from a secure facility at the national archives and he had to plead guilty to a misdemeanor, removal and retention of classified information, he was fined $50,000. He was sentenced to two years of probation, 100 hours of community service and had his security clearance withdrawn for three years and later, actually gave up his law license to avoid disbarment. So, that's how serious that was. That was five documents. We've already according to the inspector general reached the threshold of five documents with Hillary Clinton based on just 40, a sample of 40. If you go through those 30,000 e-mails, there could be hundreds or thousands of documents that she has unlawfully capped on her server in Chappaqua.
KELLY: And she's a lawyer too. She claims she did not know anything on that was classified at the time. But that won't necessarily save her. In the meantime, the polls, Mark, she is now underwater by 11 points with just40 percent approving of her. Fifty one disapproving and her unfavorables, honest and trustworthy, only 57 percent of the people believe that -- 57 percent of the people believe she is not honest or trustworthy.
THIESSEN: Yes. That's really bad news. And the really bad news is when Quinnipiac asked people what is the number one issue you're looking for in a president candidate, they said, honest and trustworthy was the number one issue. Fifty seven percent say she is not honest and trustworthy. Her numbers on honest and trustworthy have dropped 16 points in the last year.
So, it's a direct result of this e-mail controversy and it's not going away.
KELLY: But is it that or is it all the GOP-ers out there bashing her every day?
THIESSEN: Well, I don't think that any GOP-er has shown her to be honest, not honest and trustworthy. She's done that by saying, I didn't have any classified information on my servers and now we're finding out she did.
And this is going to be continued to drip out because the State Department is releasing this in trenches. So there's going to be a bunch of e-mails released tomorrow and then a few weeks later, there's going to be more. I mean, the inspector general is going to look at those emails, and he's going to start doing the same thing he did to those 40 emails and the other emails. And seeing how many agencies' information was on that. And we're going to get to the point where this could be a criminal investigation.
KELLY: We're talking about the intelligence community inspector general who went through and said there may have been potentially hundreds of classified e-mails on her private server. Marc, we'll continue to follow it. Thank you.
THIESSEN: Thanks, Megyn.
KELLY: Well, tonight, we have new video from a traffic stop that ended with a Cincinnati cop charged with murder. But his lawyer says, there's more than what we see on this video. He is here next in a must-see interview.
Plus, Mark and Arthur will follow up.
Also, new outrage with one of America's top supermodels. Yes, I know. It has nothing to do with what she's wearing in this picture. But Brian Kilmeade wanted us to put that up. He is here to talk about it. And also talk about how this guy missed the memo. Remember Tom Hanks' memo?
There's no crying in baseball! There's no crying, sir.
(BEGIN VIDEO CLIP)
TERRY COLLINS: So I went down and said, listen, I don't know what's going on. We have a game to play. Let's go play baseball. You know, this is part of the business.
(END VIDEO CLIP)
MEGYN KELLY, THE KELLY FILE SHOW HOST: Breaking tonight, a Cincinnati cop charged with murder is out on bond in case that he reignited a simmering national debate over race and policing in America. It involved now, Former University of Cincinnati Police Officer Ray Tensing and 43-year-old Samuel DuBose. Mr. DuBose was killed instantly, by a single gunshot to the head during a routine traffic stop that went horribly wrong, and was captured on the officer's body camera. Here is part of that.
(BEGIN VIDEO CLIP)
RAY TENSING, FORMER UNIVERSITY OF CINCINNATI POLICE OFFICER: Well, until I can figure out if you have license or not, go ahead and take your seatbelt off for me.
SAMUEL DUBOSE, SHOT BY A POLICE OFFICER: I didn't do nothing.
TENSING: Go ahead and take your seatbelt off. Stop! Stop!
(END VIDEO CLIP)
KELLY: Today, Ray Tensing appeared in court, pleading not guilty to charges of murder and manslaughter. When the judge set a high bail, the victim's friends cheered the decision and the judge was not having it.
(BEGIN VIDEO CLIP)
JUDGE MEGAN SHANAHAN, HAMILTON COUNTY COURT OF COMMON PLEAS: The defendant is faced with the possibility of life in prison. It's the court's duty to ensure his appearance; the bond is to be $1 million any way.
(UNIDENTIFIED MALE): Yes.
SHANAHAN: Ladies and gentlemen, this is a courtroom. You will conduct yourself at all times appropriately.
(END VIDEO CLIP)
KELLY: A million dollar bond. Attorney Stew Matthews is representing Officer Tensing. Thank you for being here tonight, Stew. So the DA.
STEW MATTHEWS, ATTORNEY REPRESENTING RAY TENSING: Thank you for having me.
KELLY: Came out today and made a forceful statement, one day after he made the first forceful statement against your client saying, this was a no- brainer, that cops had come up to him from the department saying this is outrageous. I just want the viewers what he said this morning to our own Bill Hemmer on America's Newsroom about why they didn't release the tape at first. Listen.
(BEGIN VIDEO CLIP)
JOE DETERS, HAMILTON COUNTY, OHIO PROSECUTOR: We wanted him to keep talking, so we didn't want him to couch his testimony around what he saw on television. And he was not dragged. I mean, he intentionally shot this man in the head and anyone who has any common sense know the foreseeable result of shooting one in the head is to kill them. That's why he's facing a murder charge.
(END VIDEO CLIP)
KELLY: Your reaction to that?
MATTHEWS: Well, I like to try my cases in the courtroom. But the reason I am here tonight and have appeared in other places is because of statements like that. This case has been -- Ray Tensing has been run over by a bus or a train since the day of the shooting by officials here in Hamilton County, Ohio, to the point where it's going to be very difficult for him to get a fair trial, in my opinion. And especially, when the prosecuting attorney of the county is making statements like that, just all the time, non-stop (ph).
KELLY: It's extraordinary to hear. We saw this in the Baltimore case with Mosby. It's extraordinary to hear a DA going on TV like this, to outline the details of the case and really condemned the defendant.
MATTHEWS: Well, I agree and that's why we're trying to mount some type of response to it because the DA is -- the Hamilton County Prosecuting Attorney, along with the city manager, the president of the University of Cincinnati and others have -- and the police chief of Cincinnati, they've all -- the city manager, they've all said how terrible this tape is, some without having seen it made that pronouncement. And now the entire country, and especially here in Hamilton County where we are going to attempt to pick a jury, believe that Ray Tensing murdered Sam DuBose without having seen any or -- any other evidence.
KELLY: Well, but let me ask you this because we.
MATTHEWS: Or heard the complete story.
KELLY: We do see the tape, and what it appears, you know, what it appears to show is that the officer shot this man because he decided to speed away and he decided to stop him or maybe he was fearful. I don't know. But all the man did was tried to speed away and he shot him in the head. And my apologies -- hold on. You know our guest has lost his ear piece. So I'm going to stand you by because we do have our lawyers – Mark, Arthur they're here.
KELLY: Mark Eiglarsh, criminal defense attorney, and Arthur Aidala, Fox News legal analyst, New York trial attorney. Guys, thank you. We'll get back to the other lawyer if we can. The problem is that the tape does not support what the officer said repeatedly, after the shooting. And let me just play to the audience what the officer said after the shooting. Here he is defending his single gunshot to the head of this man.
(BEGIN VIDEO CLIP)
TENSING: He was just dragging me.
PHILLIP KIDD, UNIVERSITY OF CINCINNATI POLICE OFFICER: Yeah, I saw that.
TENSING: I thought I was going to be run over. I was trying to stop him.
(END VIDEO CLIP)
KELLY: "He was dragging me. He was dragging me. I thought I was gonna get run over." The tape -- I don't see it, Mark. I don't think it supports it.
MARK EIGLARSH, CRIMINAL DEFENSE ATTORNEY: Well, Megyn, I disagree. I think the defense has a great chance to win this case if they can get David Copperfield onboard to make this tape disappear. Short of that, they've got a really difficult challenge ahead. The tape does not appear to support what the shooter is alleging.
ARTHUR AIDALA, FOX NEWS LEGAL ANALYST: But.
KELLY: Arthur, when you watch that tape what do you see? Because I just want to show it down for the viewers because they're going to argue that DuBose started the car and started to leave, and that the officer was in fear for his life. He thought he was going to get run over and that's why he shot him.
AIDALA: And I think we need to understand, this is not a regular police officer. This -- I mean, he is, but he's not a Cincinnati local police officer. He's a university police officer and that's something that the district attorney made clear in his statement yesterday, that they -- the university should do what they do best in educating people, I think he tell that to Bill Hemmer, and not being involved in law enforcement. They should let the NY -- the police departments handle that. So you have an inexperienced cop with a gun who reacted to a certain situation in its horribly tragic way.
KELLY: Stew is back with us now, I think. Stew, let me ask you. How are you gonna argue that his statements, he was dragging me, he was dragging me, are factual. When we see no dragging on the tape, we see the car turn on and he shoots the guy in the head.
MATTHEWS: Megyn, I have received calls from across the country since that tape has been released. From law enforcement officers, from university professors and from citizens who have spent time going over that tape over and over. And they have pointed out and e-mailed to me various things they have seen in that tape that confirm that Ray Tensing, somehow, ended up some 20 to 25 feet beyond the point where he was talking to Sam DuBose at his car door, picking him up -- himself up off the high street.
KELLY: Even if that's true, he shoots him before that. Even if he ultimately gets dragged, he appeared -- you tell me, he appeared to shoot him before any dragging might take place.
MATTHEWS: I'm not gonna -- I can't sit here and banter back and forth about what the tape does or does not show. Everybody has their own opinion, own interpretation of it. Hopefully, at some point, after we get a little further into this, we will be able to retain the services of an expert.
KELLY: Let me.
MATTHEWS: To break the tape down.
KELLY: Let me ask you a quick question, before I get back to the other guys. Which is, the DA came out and said something yesterday that caught my eye which is, there was something in this officer's history that led him to believe he never should have been allowed to be a cop. That this is gonna come out, but he found something in Tensing's background that support -- would support the belief he never should have been a police officer.
MATTHEWS: He hasn't shared that with me. Which is part of the problem with this entire case is that the prosecutor and various other people have shared a whole lot of things that -- I don't know whether they have evidence to support that or back it up or not. They've tried this case in the press, and part of it, I think is because of the fear that there may be a repeat Ferguson, Missouri, or Baltimore, Maryland, here in Cincinnati, Ohio, and they're attempting to keep a lid on it by throwing my client under the bus.
KELLY: Stew, thank you, back to Mark and Arthur now.
MATTHEWS: Thank you.
KELLY: What do you make of it that, Arthur? That charged that this is -- it's being overcharged and the DA is being overly vocal?
AIDALA: Well -- I mean.
KELLY: Because of what we've seen.
AIDALA: I'm so glad you ask me that question, Megyn because I've -- we need to be consistent. If we are going to come down on Mosby, District Attorney Mosby in Baltimore for her comments, I would put this district attorney in the exact same category. That is.
KELLY: She's been saying more than she said.
AIDALA: Correct. That was not the way I was raised as a prosecutor. You know the prosecutor has one press conference where he gives the facts impassionately, not this is the most horrible thing I've ever seen, but these are the facts and this is what we're going to pursue and these are the counts we're going to pursue. We'll see you in the courtroom, thank you and we walk away. And that's not what is happening here, so I criticize him the same way I criticize District Attorney Mosby.
KELLY: And the question is, Mark, in that same vein, and I don't -- I'm not defending this police officer, I admit that this tape looks terrible.
KELLY: But, many are asking how he gets a murder charge here as opposed to a manslaughter charge.
EIGLARSH: Because in that state, all it takes is a purposeful shooting.
There's no first, there's no second, if it was deliberate. The only thing that would counter that would be his argument, "Well, I had my finger near the trigger and it just happened to go off and I didn't intend to do it,"
but that's not what he's arguing. And -- so it's purposeful, and so if -- unless he's got the defense which is.
KELLY: And they don't appear like mistaken.
EIGLARSH: And it doesn't appear based on the video.
KELLY: Self defense would be a better defense here, Arthur. Where he could say, I thought he was gonna run me over. I believed -- but.
KELLY: He was not dragging.
EIGLARSH: He does not gonna do it, Megyn.
KELLY: When that guy went off.
AIDALA: Obviously, in the situation, we can't say that the cover-up is worse than the crime. It's horrible. But it is -- I mean, his statements afterward, in my opinion from the little that we know so far, are horrible.
And the other two officers say, yes the -- oh, yeah, I saw him too. Yeah, we both saw him getting dragged by the car, where it just not accurate. And the reason why, since Megyn, they charged the higher count is to give defense attorney the ability to plea-bargain. To give themselves, OK, he's charged with a murder, high murder will plea of doubt to the manslaughter, instead of a life, we'll give him 20 years and the case disappears.
EIGLARSH: And Megyn.
EIGLARSH: His lawyer talked about experts. You'll gonna have jurors who aren't robots, who are gonna looked at the video and make their own determination as to whether he was being dragged at the time that he shot this victim and.
KELLY: That's right.
EIGLARSH: It doesn't look good for the defense.
KELLY: Two other officers are in the paid administrative leave right now.
One of them is the guy who said, "I saw it too." And so we'll see what happens of all three of these guys. Good to see you both. Thank you.
AIDALA: Thanks, Megyn.
EIGLARSH: Thanks, Megyn.
KELLY: Well, new evidence turned up late today that may be tied to flight 370. That missing Malaysia Airline, missing for more than a year. We'll show what investigators are now looking at tonight. Plus, next, Brian Kilmeade is here to weigh in on how one of the world's top supermodels managed to anger a lot of folks today. Along with new reports that a young and attractive nanny? Could be between Jennifer Garner and Ben Affleck are the reason -- I don't know, but it's sad, very sad -- uh oh.
KELLY: So Tom Brady has been in the headlines all week, but now it is his wife creating controversy. As the supermodel Gisele Bundchen is the target of global anger. Why? She reportedly donned the traditional Islamic burqa.
In an attempt to sneak into a plastic surgeon's office unnoticed. Brian Kilmeade heard there was a story about Gisele and he volunteered to report on it.
BRIAN KILMEADE, FOX AND FRIENDS SHOW CO-HOST: That is not true.
KELLY: He is the co-host of Fox and Friends and if the -- so she was going in for plastic surgery?
KILMEADE: She retired, you know.
KILMEADE: As supermodel.
KELLY: Apparently, she still wants the maintenance.
KILMEADE: Yeah, she goes to her friends. And because she wasn't happy that she is -- this is according to a source. Her breasts were sagging and her eyes were sagging.
KELLY: Oh gee.
KILMEADE: And if you look at her at.
KELLY: It's like, because you know at 35.
KELLY: You guys.
KILMEADE: Because if you don't act quickly.
KELLY: I mean the breasts, she's had kids.
KILMEADE: And she sees imperfections, we're all screwed. But having said that, she decides to go in a burqa, not glasses, not a hat, a burqa. The problem is that insults many Muslims, especially in the time of Ramadan.
KELLY: They say this is a religious garment. It is not for hiding when you're going in for a doctor's appointment for plastic surgery.
KILMEADE: But there's a problem with Gisele's plan, much like her husband's. She.
KILMEADE: She brought.
KELLY: This is her on the left.
KILMEADE: Thank you.
KELLY: Going into the same clinic.
KELLY: Weeks earlier.
KILMEADE: Right. And by the way, her sister went with her. The problem is everybody.
KELLY: The chauffeur.
KILMEADE: Everybody -- evidently, in the paparazzi world knows the chauffeur, who is not wearing a burqa. So as soon as the chauffeur turned up, people say, why is she here, why is he there? And a people who know the Muslim religion, Islamic scholars say it, you're wearing an open-toed shoe, you clearly are not -- you know you might be a Brazilian supermodel that develops Muslim.
KELLY: That's the one thing you are allowed to show, I doubt it. You're not allowed to show the open toes. And the other thing is the sister had the same back pack that was seen on one of the women leaving the same clinic on July 15th.
KELLY: They didn't cover their tracks. So basically, she got plastic surgery and she insulted Islam on.
KELLY: One (inaudible).
KILMEADE: I just loved the way The Kelly File looks at it as the (inaudible) film. We've got no revenge.
KILMEADE: That because it's --unless, this is the way you're breaking this down.
KELLY: I don't understand why you can't understand that any bad news about Gisele or Tom Brady is welcome because we are jealous of them.
KILMEADE: We are, absolutely.
KELLY: We want their lives.
KELLY: And their beauty and their money, their fame and they seem like nice people, right?
KELLY: To top of all of it.
KILMEADE: Yeah, they have everything.
KELLY: Including great breasts and great eyes now.
KILMEADE: Right. And I was just going to say, now that you're retired, Gisele, fix yourself up.
KILMEADE: I mean, please.
KELLY: 35, a little too early.
KILMEADE: Yes, right.
KELLY: OK. We have to talk about this guy who cried. He cried -- oh, we only have one minute. I'm gonna -- hold on, are we gonna -- no. Take that down. We're gonna do this after the break. Forget him. Right now, we're gonna talk about Ben Affleck. He is dating his former nanny? Did she split them up, Brian? She split up Jennifer Garner?
KILMEADE: Us magazine and People Magazine said a friend of the nanny, she's 28-years-old who say that they had something going on. These are two sources. How Ben Affleck denies it and the woman says that she should not -
- she should not have been terminated because evidently, Jennifer Garner acted and fired her right away.
KELLY: She is -- but now they are claiming that this nanny actually tipped off the paparazzi that she and Ben Affleck in a certain times that a photos of her will be taking with at the right time. If she just a media person, she wants PR.
KILMEADE: Yes. She was also Neil Patrick Harris's nanny, where there is much less danger in that.
KELLY: Because he is being a gay man.
KILMEADE: Yes, absolutely. Robin Williams have the same issue. So as Joe Piscopo.
KELLY: I'm -- listen, I'm happy to say, I actually had an incredibly beautiful nanny. And I have no fearful because she is a good woman, and Doug is a good man. We'll be right back.
(BEGIN VIDEO CLIP)
TOM HANKS, ACTOR: And that's when my parent's drove all the way down to Michigan to see me play the game. And did I cry?
BITTY SCHRAM, ACTRESS: No, no, no.
HANKS: Yeah! No. And do you know why?
HANKS: Because there is no crying in baseball. There is no crying in baseball!
(END VIDEO CLIP)
KELLY: Oh, that was one of the best clips ever. That movie is great. So, apparently there is crying in baseball. Tell us who did it?
KILMEADE: What happened is shortstop Wilmer Flores, of a 23-years-old with the New York Mets found out, to beginning through social media, not through proper channels that he was traded in the seventh inning.
KELLY: How? He has his iPhones out there?
KILMEADE: Evidently, they got to my phones the fans are talking about it.
He's been with the team since he was 16 years from Venezuela.
KILMEADE: Yes, since 16. And all of a sudden he gets a word he's traded to the Milwaukee Brewers. He comes back. Terry Collins, his manager, has seen his back. He said he was not traded. Why are you crying? Because if you are traded, stop crying. I need to you play the next inning. So they send him out there and he's crying even worse the next inning.
KELLY: He's sad.
KILMEADE: But see what I like about this? This shows -- it's not just a game. It is somebody you feel passion for. I like that he cried.
KELLY: I just too.
KILMEADE: That he cares so much.
KELLY: But they were so mean. The announcers are like, he's crying, he's crying --
KILMEADE: Right, they were.
KELLY: They're terrible.
KILMEADE: And what they would tell you to.
KELLY: He is not a kid.
KELLY: Sort of.
KILMEADE: But, that is how when you get traded, they pull you off -- after they pulled you off the field. And when you get traded, you usually cry in your own. Cry in your locker room, you cry to yourself, you cry in the car.
KILMEADE: This guy was forced to cry on the field because it is social media. Again, we should forget about the internet, forget about social media, and this is what happened. By the way, the trade blew up. It didn't work. He is still on the Mets.
KELLY: Oh, it's wonderful.
KILMEADE: He got a beautiful ovation tonight for crying. Because usually cry because they're on the Mets, not when they're leaving the Mets.
KILMEADE: So this is a big moment for Mets fans.
KILMEADE: So we're all happy that someone is crying that they were sent away, but he has got to stay now.
KELLY: I'm on his side.
KILMEADE: Yeah, Wilmer Flores, right?
KELLY: Yeah, bye Wil.
KILMEADE: All right. OK, good.
KELLY: I mean, welcome. I mean, congratulations, I don't know.
KILMEADE: And by you're staying.
KELLY: We'll be right back.
KELLY: Breaking tonight, that piece of the airplane wing found yesterday off the coast of Africa, will now be flown to France to see if it's actually from Malaysian flight 370, missing for a year. Investigators also found battered luggage today that washed up in the same area, thousands of miles from the original path of this plane. Final note:
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