This is a rush transcript from "The Kelly File," August 12, 2015. This copy may not be in its final form and may be updated.
MEGYN KELLY, HOST: Breaking tonight big news for the GOP presidential field as a new poll out of what's seen as one of the most critical states in this election suggests republican voters may have some new favorites.
Good evening and welcome to "The Kelly File," everyone. I'm Megyn Kelly. It is no secret that every candidate in this race is looking to win the coveted Hawkeye State of Iowa. Prior to Fox News first Republican debate, it was Wisconsin Governor Scott Walker enjoying the view from the driver seat, holding the first spot place in Iowa for months according to the Real Clear Politics average. But a new poll out today not only put Donald Trump at the top of the heap among likely Republican caucus goers, it also shows Dr. Ben Carson knocking Governor Walker down into third place. Look at these numbers. Putting the previous frontrunner into the single digits along with every other candidate besides the top two in this race.
Joining me now, Fox News digital politics editor Chris Stirewalt. Chris, good to see you. So, what does this tell us?
CHRIS STIREWALT, FOX NEWS DIGITAL POLITICS EDITOR: Well, it tells us people don't really like politicians that well since the two guys who were leading the pack in Iowa, neither of them have ever held elected office. Donald Trump has run for president before but certainly wasn't one. And the only -- it's the only commonality between the two. Because there is no way they could be anymore different. You have on the one hand a studious, kind-hearted, mild-mannered gentleman in Ben Carson. And then you have the polar opposite of that in Donald Trump. Who is brash, who likes being unrefined. He likes being unvarnished. They're totally different in those ways. But what they have in common is they ain't politicians.
KELLY: Uh-mm. And so they're looking for the outside Washington person. And you see that. I mean, even when you talk to voters and you hear them in this focus groups and so on, they're sick of Washington. They hate Washington. And yet, you know, I hear from a lot of people, oh, we love Ben Carson, but he can't win. Some people say the same thing about Trump. Because they haven't held elected office. And the theory is, why would they elect somebody who has never held elected office to the presidency as the first time? Is it possible?
STIREWALT: Well, anything is possible, I guess. But I would have to say this. This is August. And what people are doing now when they say who they're backing, part of it is to send a message. And a lot of Trump's support is about sending a message to the republican establishment. It is a weaponized voter preference. Trump is like an epithet that you can hurl at the republican establishment. That you can hurl at the party and say, oh, yes, well, Trump you! And you take that. And I hate you guys and what you do! Carson though is something different. If Ben Carson finds a way to -- people connect with him, they relate to him. He engenders real love among his supporters.
KELLY: And the evangelicals in Iowa love him. We saw that in poll. And they all loved that moment when he closed the debate.
STIREWALT: It was beautiful. And it was, you know, what? He may not have had as many exact seconds as Jeb Bush or somebody else in the debate. But everybody I've talked to and all the polling that reflects that he made the most of it. And that his answer in speaking from the heart and talking sincerely as a non-politician meant a lot to people. And I think you could see Ben Carson as a potential Iowa winner.
KELLY: He had that line of the debate where he talked about he is only one on stage who has taken out half a brain. Although if you go to Washington -- beat him too, it was so memorable.
STIREWALT: I just moved to.
KELLY: Another line from the debate that just comes to you like that. And, you know, the rules of privacy and recency. You know, people remembered what they heard first and last and they remembered Ben Carson. So, who are the people who are behind Donald Trump? Because we have seen - - let me put it on the board. This is the Real Clear Politics average of Trump's lead in Iowa. So, back on July 22nd, he was down at 8.5. Then August 2nd after the debate surging up to 20. Now it's down a little but not much. So, who are the folks who are in Trump's camp?
STIREWALT: Well, we need a little more time to figure it out. And no offense to the good people at CNN. I want more polling before I come to a full conclusion. But I can say this. Let's, roughly speaking, split them into half. There are half of the people who really believe in Donald Trump. Half of the people who say, this is the man. This is the answer of the future of America. Get the hat, make America great. Then there is the other half which, as I say, maybe are just more into crashing the Republican Party. They're more into sticking it to the man than they are for Donald Trump himself. The problem for Trump is, that first group may stay with you for a while. That second group, if they're making a protest as they back you, those people are harder to keep with. So, I want to see into next week how we're really looking in Iowa.
KELLY: So, interesting. And New Hampshire too. We're waiting a new polls there. We saw a bit of a fall for Trump and a couple of the others last night. Although he is still leading. And with a more few days, we should know more there as well.
Chris, great to see you.
STIREWALT: You bet.
KELLY: Joining me now with more, Dana Perino, co-host of "The Five." And a former White House press secretary under President George W. Bush. Not to mention, author of "And The Good News Is." The good news in these polls is for whom?
DANA PERINO, CO-HOST, "THE FIVE": Well, I think Trump would say, obviously, I'm winning. I mean, he's like he only says I'm winning and the polls show it.
PERINO: I've been watching and I'm saying for a while that Ben Carson had stayed up like in the top three or four, in all of the polls, for months.
KELLY: Very consistent.
PERINO: And there's -- a lot of people would write him off and say, well, he could never win. But they said that about Barack Obama. Okay, so --
KELLY: But Barack Obama had held local office. U.S. senator.
PERINO: Sure. I think it's very difficult to run for your first office and for that to be the presidency and for him to win. I have expected those poll numbers to come down.
PERINO: But I also think that, for as much as some people might like the briskness of a Donald Trump, there are also other people who say, oh, I like the mellow, calm, common-sensical voice of a Dr. Ben Carson. It appeals to them.
KELLY: You couldn't find two men who seem more different. And yet, these are the two frontrunners in Iowa of all places. But it seems like the evangelicals are behind Carson. And --
PERINO: There is good reason for that. Remember, just a few weeks ago at the big evangelical convention there in Iowa. I mean, Donald Trump was there and he says, I've never asked God for forgiveness. I don't need to. And he's basically, in the face of all the Christians who were there. That's something you might have walked away from that and still liked him but they really like --
KELLY: But let me ask you this. What about Huckabee? What about Walker. What about Cruz?
PERINO: Well, okay. I think that Cruz deserved probably to do a little bit better in this poll because I think he had a pretty decent debate. And I know that he's been working very hard. He is on the road every day. He has a broad base of support in terms of people that are supporting him. Big donors and also small donors from all across the country. So, I think that his numbers could go up. Interesting thing about Iowa. I feel like that Huckabee and Santorum have -- basically, Iowans are saying, we like different, we like Trump, we like Carson, we like you too but we're going to turn our attention to somebody else. I think Walker will do better in Iowa in the future.
KELLY: He's not hurting Jeb Bush too because his numbers are way down.
PERINO: His numbers are down.
KELLY: The conventional wisdom after the debate was, he didn't have a great night. But he didn't have a bad night either. So, what's happening to him?
PERINO: I think part of this is that, you have to be there. You need to be in Iowa, you need to be shaking hands and talking with people eye to eye. I think that they're all trying to get as many places as they possibly can. I know like for example, Chris Christie spent a lot of time both in Iowa and New Hampshire. When he is there in the state, there is a lot of attention and he's very popular. As soon as you walk away, then that sorts of dissipates a little bit.
KELLY: You got to stay and you got to keep working. What about Fiorina?
PERINO: Well, she had -- I think that the best thing to happen to her last week was she was in the debate at 5:00 because she shined. And she's continued. She hasn't stopped. So, she basically took the ball and kept running. So, the follow-through is very important.
KELLY: But what's interesting is, she is taking aim at Trump. He is taking aim back at her.
PERINO: So, they both stay in the news.
KELLY: That's right. But should he be punching back at her given that he's so high in the polls and she is not? And is it, you know --
PERINO: I'm not for punching down. I'm not for punching down. But I mean, maybe my style wouldn't work. And I think that she is right to punch up. She is absolutely right to.
KELLY: Right. Because you get the reflective light.
PERINO: She has a very interesting following, especially among young Republicans. She talk about a person who will go to the event. She looks you in the eye. You're the only person in the room. She wants to know about you. She cares about you.
KELLY: You know what else? She has come up with a better answer for her firing at HP. Which, you know, she struggled to sort of explain in a quick way early on in this campaign. And now, she has it down. She came out today and said, you know, what, Walt Disney got fired. When I got fired Steve jobs called me that day and said, good people get fired. I got fired twice. And this is what happens when you're a mover --
PERINO: That could be a line that you come up with in the shower. Don't you think? I shouldn't have been saying that all along, it's a great point.
KELLY: You know, what, for everybody out there who has gotten fired, just take her. Walt Disney apparently got fired.
PERINO: Do you know who's been fired from every job he's ever had?
KELLY: O'Reilly. I don't know. Maybe.
PERINO: Is that true?
KELLY: I think so. He wears it as a badge of honor.
PERINO: Greg Gutfeld.
KELLY: See, there you go.
PERINO: Yes. He says it's always worked out for him.
He lives on the edge.
KELLY: Not Dana. Everybody wants Dana.
PERINO: I've never been fired. Well, yet.
KELLY: And the good news is, who wouldn't want Dana Perino in their employ? Great to see you.
PERINO: Thank you.
KELLY: Well, there was also a remarkable moment today in the republican race for the White House. As Dr. Ben Carson took his brand of Black Lives Matter message right to the streets of Harlem.
(BEGIN VIDEO CLIP)
DR. BEN CARSON, R-PRESIDENTIAL CANDIDATE: Well, of course Black Lives Matter. But what I feel is that, instead of people pointing fingers at each other and just creating strife, what we need to be talking about is how do we solve the problem in the black community of murder.
(END VIDEO CLIP)
KELLY: Dr. Carson joins us next live to talk about the reaction to his remarks.
Plus, Planned Parenthood and women's health suddenly hot topics for the GOP field as both Donald Trump and Carly Fiorina attack rivals over remarks on the issues. We'll take you inside that fight.
Also, breaking tonight, just moments before we came to air, dramatic developments in the Hillary Clinton email scandal. You've not heard about this yet. We just -- I mean, it was 8:58 -- got reports that these were not ordinary secrets found on Mrs. Clinton's private server that you heard but some of the most classified material the U.S. government has gotten. And someone may have tried to hide just how sensitive the documents really were. Not only that, but now it appears there has been dissension in the ranks and some finger pointing between state and the Clinton team has just emerged.
Judge Andrew Napolitano is reviewing the new information. He will join us live shortly. Don't go away.
(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: Breaking tonight, a remarkable moment in the republican race for the White House today. As Dr. Ben Carson decided to tackle head-on the issue of race and opportunity. He travelled to New York City, and he brought his message of self-reliance to the streets of Harlem. Take a listen to what he had to say to the people and the press.
(BEGIN VIDEO CLIP)
CARSON: Well, of course Black Lives Matter. But what I feel is that, instead of people pointing fingers at each other and just creating strife, what we need to be talking about is how do we solve the problem in the black community of murder. Essentially. You know, for a young black male, in the inner city, homicide is the most likely cause of death. That is ridiculous. And most of those occur at the hands of other young black males. We need to be talking about why is that occurring. We need to be talking about how do we instill values into people again so that they do in fact believe that their brother's life matters. And that's going to be a matter of getting back to the values and principles that got black people through slavery and through segregation and Jim Crowe-ism. And those are family and faith.
Those are the things that got us through it. And as we throw those things away, you're seeing terrible carnage occurring in our communities. Also recognizing that, you know, 73 percent of black babies born out of wedlock. That woman's education stops generally with that first baby. And that baby is at least four times as likely to grow up in poverty. And is likely to end up in the penal system or the welfare system. That is destructive to the community but the PC, the police and the progressive community have gotten people to believe that that's okay, you're not supposed to talk about that. If anybody talks about that they're an Uncle Tom and they're against you when in fact those are the very people that trying to save the situation.
UNIDENTIFIED MALE: Traditionally Democrats have gotten most of the African-American vote. Why is that and what can you do to change that?
CARSON: Well, I think it's because the Democratic Party has ascribed to the Lyndon Johnson philosophy. I don't know if you know Lyndon Johnson said, if we give those n-words such and such, they'll vote for us for the next 200 years. What the Republican Party needs to do is come out and discuss more the kinds of relationships and the programs that will actually bring people out of poverty, that will give them the ability to use their God-given talents to rise rather than to simply be satisfied in a dependent position in our society. The key thing is, whether I get the votes or not, I want people to start listening to what I am saying and understanding that, you know, there is a way to go that will lead to upward mobility as opposed to dependency. And let's talk about that way. And let's not be satisfied to be patted on the head and kept like a pet.
(END VIDEO CLIP)
KELLY: Wow! Joining me now from Queens, New York, presidential candidate Dr. Ben Carson. Dr. Carson, great to see you. What did you mean by that last comment, and not be kept like a pet?
CARSON: People who don't truly respect you, don't really see you as an equal, but just take care of you in order that you can take care of them.
KELLY: You made a point today, because there aren't many people who are talking about this, about what is actually happening in the African- American community that can contribute to these figures we've seen in terms of the, you know, fatherless families and inner city poverty and lack of education and lack of opportunity. And you say this is a reason people don't want to talk about it. You said today it's because you'll be dubbed an Uncle Tom if you do.
CARSON: Yes. You know, the whole value system, the values and principles that created, you know, strong families and gave people, you know, the kind of foundation that they needed to be able to resist, you know, the influences on the street, those are not there anymore. So, you know, people are easily taken with the first wind that blows by. And that's a major problem. You know, you look at these young men, you know, a quarter of them are involved in the penal system. You know, by the time they're 20 years old. That's ridiculous! And they're not bad people. They're good people. But unfortunately, you know, they're not getting any of the right kinds of influences. So that's going to happen to anybody. I don't care what color they are, if you put them in that situation.
KELLY: We have some of the other candidates on the GOP side saying, well, the answer to that is to decriminalize certain drug crimes and so on. And to get rid of some mandatory sentences. You, as far as I know, I could be wrong, are the only one talking about, let's take a hard look at what's happening in the communities themselves and try to get at the heart of that. Although, what a herculean lift, right, Dr. Carson? I mean, how do you even start that process of changing that social structure?
CARSON: Well, it's going to be difficult. But the first thing we have to do is start talking about it. You know, stop being afraid to actually address the issue. Stop being afraid to tell that young woman that she is valuable and that she shouldn't be giving herself away and then having a baby and then having the father abandon her and then having the government support her. You know, the whole system is upside down. That doesn't work. And what we need to recognize as a country -- and this is crucial -- we only have 330 million people. We're competing against China and India. They have over a billion people. We can't afford to be throwing away a good portion of our people. We need to develop all of them to the maximum. It's going to help us as a nation and strengthen the fabric of our country.
KELLY: Do you think you can be heard on this front? I mean, there is a critical piece in the "Washington Post" on you talking about how Republicans may love your views on race but most voters of color do not and that they feel, really, you need institutional help, you need government aid in these communities to pull people out of poverty.
CARSON: Well, there's always going to be a critical piece in the "Washington Post" about me. That's nothing new. But the important thing is that, yes, I do think people are starting to listen. You know, many people on the street today in Harlem came up to me and said, man, we love you. We're supporting you. I was in the airport yesterday on my way here. A woman comes up to me and she says, I am a life-long democrat. I love you! And, you know, the stuff that I'm talking about has nothing to do with Republicans or Democrats. It has to do with America and what kind of nation are we going to have? What are we going to pass on to our children and our grandchildren?
KELLY: Dr. Carson, always a pleasure. Thanks for being here, sir.
CARSON: Thank you, Megyn.
KELLY: Breaking tonight. We're learning more about the breaking news on Hillary Clinton as a State Department official suggests to Fox News that some very, very secret information found its way onto her private server. Remember yesterday, we learned that it was top secret. Now we're learning something more, something much more concerning. And we're also learning that someone in Hillary Clinton's inner circle is now being accused of removing the top-secret markings from the documents, which would be a felony. The State Department pointing fingers at the Clinton campaign? Judge Napolitano is here on that.
And then Donald Trump is going hard after Jeb Bush about remarks that he says could cost Jeb the chance to be the president. Dana Loesch joins us next on that.
(BEGIN VIDEO CLIP)
TRUMP: I think Jeb's statement on women's health from a few days ago will go down as his 47 percent. I don't think you can recover from the statement. He then goes back and he says he misspoke. Well, it was pretty late.
(END VIDEO CLIP)
KELLY: Developing tonight women's issues now front and center in the race for the White House with the number of republican rivals attacking one another over their respective positions. Donald Trump knocking both Hillary Clinton and then Jeb Bush for questioning whether the government spends too much on women's health. That was Mr. Bush. And it is a comment that Jeb Bush later attempted to clarify. Listen to Mr. Trump.
(BEGIN VIDEO CLIP)
TRUMP: Well, I think I'll do more for women. I cherish women. I think I'll do for more women than Hillary can ever do. I think that I will take care, you know, I thought Jeb Bush made a horrible mistake when he blew the whole situation on women's health. You know, the women's health issue. A week ago what he said was just unbelievable. Essentially he's saying I'm not going to fund it. And I think that will go down as Jeb Bush's 47 percent. The 47 percent to Romney where probably cost him the election when he said that.
(END VIDEO CLIP)
KELLY: And then there is Carly Fiorina hitting Donald Trump for his suggestion that Planned Parenthood does some good for women. Watch.
(BEGIN VIDEO CLIP)
CARLY FIORINA, R-PRESIDENTIAL CANDIDATE: Unfortunately I think Mr. Trump is taking the democrat party's talking points on Planned Parenthood. There are many other organizations that exist to help women with their health issues, pap smears, mammograms, et cetera. In fact, Planned Parenthood does very few mammograms as one example. But what they do is a whole lot of abortions.
(END VIDEO CLIP)
KELLY: Dana Loesch is the host of "Dana" on The Blaze TV. Dana, good to see you.
DANA LOESCH, HOST OF DANA ON THE BLAZE TV: Good to see you.
KELLY: And so, Mr. Trump seems to be saying that Planned Parenthood does some good work for women. We have had this discussion on our show as well, but that he doesn't want to provide funding as long as they're providing abortions. I mean, I think that's where he's landed. Do you think that's right?
LOESCH: It seems to be kind of accurate. But the problem with that statement, though, is really, actually, more of a problem with how Planned Parenthood is set up. And I would actually correct Carly Fiorina, who I think has done a very good job of addressing the Planned Parenthood issue. Planned Parenthood doesn't provide any mammograms, zero. And referrals are what they consider service in that area. But to the point of Planned Parenthood and its structure, they don't have two different entities. It's all one big, giant entity. And they like to say Megyn that only three percent of their business actually comes from abortion, but even the "Washington Post" fact checked them. Susan B. Anthony's list says, it's more around 94 percent and this comes from their own financials which is available on pdf on their website.
KELLY: Ninety four percent, what? Ninety four percent, what?
LOESCH: Of their business. Of their business.
LOESCH: They make bank on abortions.
KELLY: Well, Susan B. Anthony is a pro-life organization.
LOESCH: It's a pro-life organization. But Washington Post did include it when they fact checked. And they had a problem themselves with Planned Parenthood's own three percent statistic. They were saying, that doesn't really fly. So I think you have to separate the both of them for Trump's statement to kind of work.
KELLY: But it seems like Mr. Trump is concerned about alienating that section of republican women who he cites who may, you know, maybe they have fond memories of Planned Parenthood, where a lot of young women go before they have health insurance coverage for birth control, for you know, your GYN exam and so on. And this is what he told Sean Hannity about it last night. Take a listen.
LOESCH: You have it as an abortion clinic. Now, that's actually a fairly small part of what they do, but it's a brutal part. And I'm totally against it. Maybe unless they stop with the abortions we don't do the funding for the stuff that we want. There are many ways you can do that, Sean. Because I'm totally against the abortion aspect of Planned Parenthood. But I have had many women -- I've had many republican conservative women come up and say Planned Parenthood serves a good function other than the one aspect.
KELLY: Go ahead.
LOESCH: I have never met any republican conservative women that have said that. Two quick things with this. In terms of women's served. Planned Parenthood says they serve about 2.7 million women. You've had community health centers and we've covered this before. They serve over 21 million men and women. Actually, three things. I lied. So, that's the first thing. The second thing is why are we even having this conversation about Planned Parenthood when in ObamaCare there were millions of dollars Megyn marked for women's health care. ObamaCare were supposed to give women all the pap smears, the mammogram --
KELLY: So, you didn't have to go to Planned Parenthood anymore -- because ObamaCare was going to pay for it for you.
LOESCH: Exactly. But the last thing Megyn is, in terms of big business with Planned Parenthood, we shouldn't be funding them for the simple reason that they are using public money, Megyn, to fund democrat campaigns. That's not constitutional.
KELLY: What about -- what about Jeb Bush's comment? Because Donald Trump believes, and you heard Fiorina hit Trump. But Trump is hitting Bush saying his comment about, I don't think we need to spend half a billion dollars on women's health care is going to be like Romney's 47 percent, that Jeb Bush is done with women because of that comment which Bush later sought to clarify.
LOESCH: Well, I think if they wanted to make swift business of having a 47 percent remark from Jeb Bush they would look at his past statements on common core and his current statements on common core. They don't need any misspeaking from him about Planned Parenthood or funding women's health. But it does push the question of, why are we talking about continuing to fund when again, in ObamaCare, there were billions of dollars already earmarked for it.
KELLY: That's what Dr. Carson has been saying. I thought ObamaCare was supposed to solve this problem and yet here we are, Dana, great to see you.
LOESCH: Thanks, Megyn.
KELLY: Well, there is also new outrage among veterans tonight, as a symbol of their sacrifice comes under fire, with suggestions now that the POW flag is racist. We'll investigate.
And we'll have the full breaking news report right after this break on Hillary Clinton, the top secret information they found on her server, and new suggestions now from state that someone on her team appears to have committed a felony. This raises this whole conflict to a new level. We are in un-chartered waters here, folks. Judge Napolitano is next on what he says is starting, in his view, to look like a criminal conspiracy. Three minutes away.
KELLY: Breaking tonight, big news in the Hillary Clinton email scandal. Just before we came to air tonight, an unnamed State Department official telling Fox News that some of the nation's most sensitive, top secret information was communicated on Mrs. Clinton's server, it was highly classified at the time. Contradicting one of the key arguments in team Clinton's defense. Also, another big development, this State Department source suggesting to Fox that a Clinton insider must have been the one to actively strip the classification markings off of the information before sending it, which is a felony, potentially punishable by serious prison time. Judge Andrew Napolitano is our Fox News Senior Judicial Analyst. And Judge, I just want to clear it up for the viewers. So this State Department official is saying we now know at least one email was top, top, top secret.
JUDGE ANDREW NAPOLITANO, FOX NEWS SENIOR JUDICIAL ANALYST: Right.
KELLY: That the State Department doesn't have the capability to mark a document that way. To -- so it had to come to state from someplace else in the intelligence community.
NAPOLITANO: If I may, the email that we now know about, a State Department source speaking to Fox News indicated that it contained satellite imagery and signal intelligence. Now, the State Department is not capable of producing its own satellite imagery or its own signal intelligence. Everybody knows what a satellite is. Consider signal intelligence basically surveillance.
KELLY: So the document had to come from someplace in the intelligence community into state.
NAPOLITANO: Correct. And no one in the intelligence community would send this document without marking it top secret because they would expose themselves to a felony.
KELLY: So the source goes on to say, therefore, somewhere between the points these documents -- because we believe there were two, came into the building and the time they reached Hillary Clinton's server, someone would have had to strip the classification markings from the information before it was transmitted to her email, Hillary's email. That would constitute...
NAPOLITANO: A felony. Absolutely, it would constitute two felonies. The first felony would be altering a top secret document, and the second felony would be placing a top secret document in an insecure place, which is Mrs. Clinton's server, a place not controlled by the government.
KELLY: Why are they so sure that happened? Why couldn't it be someone in the intelligence community who screwed up and didn't mark the documents classified?
NAPOLITANO: Possible but extremely unlikely. The reason it is unlikely is because the intelligence community knows their members can go to jail for simple negligence by exposing a top secret document.
KELLY: This is what they do. This is their business.
NAPOLITANO: Correct. And the Justice Department is extremely harsh and intentionally so, on members of the intelligence community who drop the ball by failing to protect these things.
KELLY: What motive would a top staffer of Hillary Clinton's or anybody else near Hillary Clinton, in her inner circle has to remove a classified marking from a couple of documents?
NAPOLITANO: Ok. We may know the answer, because the FBI now has the server. So they can look at this email and see if when Mrs. Clinton received it top secret was removed.
KELLY: Even though she has already done all these deletions -- presumably not of this document.
NAPOLITANO: Our colleagues in the intelligence community have told me with certainty, if it was on the server it can be extracted.
KELLY: She'll be able to tell how she received it and how it was marked.
NAPOLITANO: Unless she took a blowtorch or a sledgehammer to the server, yes they'll be able to do it. So if top secret was on there, then we know she lied, and she committed a felony by possessing and storing top secret information on an insecure server. If top secret was not there, we will know that someone removed it. They can trace this back and see who sent it to them and if when it was sent to the State Department, it top secret on it but if when it was sent to Mrs. Clinton top secret was removed.
KELLY: This raises it to a whole new level. What we were discussing last night was the fact that she said all along there was never any classified information, ever, no classified information period.
NAPOLITANO: She can't say that anymore.
KELLY: Now we know that there was. Not just classified but top secret.
KELLY: So what we're learning now is that not only was there top secret information on the server but that -- at least this source at state believes it was marked and someone deleted the markings.
NAPOLITANO: If this someone who deleted the markings did it as part of a plan to insulate Mrs. Clinton from the obligation of complying with federal law so that, again, she could keep her emails.
KELLY: Or she wanted to send it to somebody.
NAPOLITANO: Correct. Or she wanted to send it to someone like a colleague of hers who is not in the State Department and advise -- a friend of hers, also to keep this information from the President and from everybody else in the State Department, if that was a part of a plan or a plot, that's a criminal conspiracy. And under the criminal conspiracy laws, anybody in the conspiracy, anybody benefiting from that conspiracy, anybody aware of that conspiracy is liable for the acts of everybody else.
KELLY: How -- how -- I mean, it sounds sensational when you look at this. And by the way, this is not just Fox News. Earlier today the Daily Beast reported that it appears increasingly likely that someone on her staff violated federal laws regarding the handling of classified materials. This was before the breaking news we just reported.
NAPOLITANO: The FBI knows how to deal with this. They know that if they pursue, challenge, and indict somebody on the team, that person is going to squeal about other members on the team and those people will squeal about the head of the team Mrs. Clinton. That's the classic...
KELLY: If there is anything to squeal about. She is not a target right now.
NAPOLITANO: Right. Right now she is not a target, at least not public target. She hasn't received a target letter. But she is certainly in the class of people whose behavior will be examined for a failure to secure top secret information by knowingly introducing it into a venue that the government doesn't control.
KELLY: I have to ask you quickly, how does this compare to the General Petraeus scandal where he was prosecuted for having classified information at his home?
NAPOLITANO: He kept it locked in a drawer. She put it in an insecure email that could have easily been hacked. This morning I was asked on Fox & Friends and Mornings with Maria at 6:00 a.m., how serious is Mrs. Clinton's legal problems, and I said they were grave. Now 16 hours later, I don't know what word to use, but they are worse than grave.
KELLY: Judge, thank you.
NAPOLITANO: You're welcome.
KELLY: More on this as we get it.
Well, the shooting of an unarmed black teen in Texas has become the latest rallying point for the black lives matter movement. A cop has already been fired and he may now face criminal charges. We'll have the Kelly File investigation next. Plus, Mark Eiglarsh and Mercedes Colwin are here on where this case is likely to go. Stay tuned.
KELLY: Developing tonight, a Texas cop has been fired for shooting and killing a college football player. Now the officer may face criminal charges. It started over the weekend when Officer Brad Miller shot Christian Taylor, an unarmed teen. Taylor had allegedly crashed into a car dealership at almost 1:00 in the morning in what police believed was a burglary and things went south from there. Trace Gallagher has the details. Trace.
TRACE GALLAGHER, LOS ANGELES: Megyn, rookie Police Officer, Brad Miller has now been fired for what the police chief calls inappropriate judgment in his handling of the situation. Miller was among five police officers who responded late Friday night, early Saturday morning, to an Arlington car dealership for reports of a man vandalizing vehicles. Surveillance tape captured 19-year-old Christian Taylor, a football player at Angelo State University, jumping on the cars and busting wind shields. Then video shows Taylor driving his own car through a glass window into the dealership showroom. The police chief said the suspect then held up a set of car keys and told police he was going to steal a car. The suspect was ordered to the ground but apparently did not comply. We're told a senior officer pulled his Taser. Officer Miller pulled his gun. Miller claims the suspect started to rush them and he fired several shots, killing the man. Here is the chief explaining why Officer Miller used poor judgment.
(BEGIN VIDEO CLIP)
CHIEF WILL D. JOHNSON ARLINGTON POLICE: This unilateral decision to enter the building and to continue the pursuit deeper into the building upon making contact with Mr. Taylor, along with failing to communicate with fellow officers or develop an arrest plan, created an environment of cascading consequences that produced an unrecoverable outcome.
(END VIDEO CLIP)
GALLAGHER: Miller's attorney believes his client was unjustly fired, calling it a knee-jerk reaction by the police department. The family of 19-year-old Christian Taylor says deadly force was not necessary. Taylor's brother, Former NFL player Adrian Taylor says he believes the shooting was not justified but is not trying to turn this into a black and white thing, but rather a lesson for people of all races on how to act when confronted by police, Megyn.
KELLY: Trace, thank you.
Joining me now me for more, Mercedes Colwin who is a Fox News Legal and Criminal Defense Attorney, and Mark Eiglarsh who is a Criminal Defense Attorney and Former Prosecutor, good to see you both. So Mercedes, to see this covered elsewhere they say it's open and shut, that this cop ought to be charged with murder for shooting this teen, who is unarmed.
MERCEDES COLWIN, CRIMINAL DEFENSE ATTORNEY: Completely unavoidable, totally abusive by this law officer. Now why do I say that? There are six officers there. The rookie trainee storms the building, doesn't talk to the other officers, doesn't coordinate, and by the way, the senior, more experienced officer pulls out his Taser. Did the teen go forward towards these officers with a gun in his hand, absolutely not. Did he make threatening gestures? We have no evidence of that. All he was doing was rushing these officers. We already know that there was another experienced officer there who pulled his Taser, didn't pull his gun, didn't use deadly force, and didn't think and then suspect that this teen -- it was not imperiling his life or that of Officer Miller.
EIGLARSH: I disagree with Mercedes. I don't think that this officer will be indicted. First let's start with the fact that we're in Texas, and a Texas grand jury is very different. It's going to be changing September 1st. But right now they have a system in Texas which hasn't been used in the federal system in decades. A judge appoints commissioners who then decides who should be on the grand jury, as opposed to randomly having them on there. The grand jury in Texas has been impaneled since July. So most likely this officer will be heard by an old system grand jury. And I'll tell you this. He is going to say that he reasonably feared as this guy was charging him. He saw what he had done. And I think this grand jury is going to let him walk like so many other officers in Texas.
KELLY: What about it, Mercedes? Because that's what they're going to claim, they're going to say that -- this is their story -- the cop's story. The officer retreated from the physical contact with Taylor while he was giving commands to Taylor. That the officer fired one shot but Taylor continued advancing. That the officer then fired three more shots for a total of four shots and Taylor was hit multiple times. They're going to say that, even though he was unarmed, police say his wallet and phone and I am quoting here, created a bulge in his shorts that could have been perceived as a weapon.
COLWIN: The lynch pin to the prosecution is going to be that the experienced officer didn't perceive the same threat. He took out his Taser, didn't take out his gun.
KELLY: That's a subjective thing.
COLWIN: It is subjective.
COLWIN: But that's going to be something that the prosecution is going to say.
KELLY: That doesn't turn it into murder, right? That turns it into a mistake.
COLWIN: Manslaughter. He's going to be charged with murder but the default would be manslaughter where he recklessly murdered this child.
KELLY: Go ahead, Mark.
EIGLARSH: Mercedes is ignoring decades of what's happened in Texas, where it is virtually impossible to indict an officer under these circumstances. And almost even more challenging, almost impossible...
COLWIN: Mark, I'm not ignoring anything.
KELLY: There is this second cop who didn't shoot, the second cop who had just a Taser. His testimony is going to make all the difference, right?
KELLY: You tell me, Mark, if that guy goes before the grand jury and says this guy was not advancing on Officer Miller. This guy was not given commands to stop. This guy was not a deadly threat. That's it. That's the ball game. He is going to get indicted.
EIGLARSH: Well -- Megyn, that's a softball question. That's an easy one. That would be murder. But that's not his testimony. And he was going to say that he was advancing towards him, he reasonably feared that this guy was going to disarm him.
COLWIN: The second cop did not say that, Mark. He is the one. He is the one with experience. The rookie cop, who is still in training, had a knee-jerk reaction. That's why he is terminated, that's why the charges are going to be raised against him. But frankly -- the more experienced cop did not assess the situation similarly.
KELLY: Well, you can already hear the cop's attorney is calling this a knee-jerk reaction by the police department. They think these other cases have influenced grand jury -- the overcharging of police officers. We'll find out. We shall find out. It's great to see you both.
COLWIN: Great to see you. Thanks, Megyn.
KELLY: Coming up next, outrage in the military community after new suggestions that the POW flag was a political trick with racist roots.
KELLY: After a national debate on the Confederate Flag, another flag is now coming under fire. This time it's the POW flag, which one journalist is claiming has racist origins. Trace Gallagher live in our West Coast newsroom with the story. Trace.
GALLAGHER: Megyn, hundreds of Americans are still missing and unaccounted for in Vietnam, which is why the POW MIA flag still flies from federal buildings. But according to Rick Pearlstein, a Correspondent for the left-leaning Washington Spectator, who wrote the article, published in Newsweek, the flag is a political trick invented by the Nixon administration, saying that in 1971 after years of playing down the existence of American prisoners in Vietnam, the President decided to play them up. Quoting here, "Richard Nixon invented the cult of the POW/MIA in order to justify the carnage in Vietnam in a way that rendered the United States as its sole victim." Pearlstein goes on to call the flag racist and that it should be treated with the same hostility as the Confederate Flag, though he does not say exactly why. Critics counter by saying it's a flag of remembrance and that Rick Pearlstein is angry because people don't remember the Vietnam War the way he wants them to. Today on Outnumbered, Former Soldier Pete Hegseth said this about the flag.
(BEGIN VIDEO CLIP)
PETE HEGSETH, CONCERNED VETERANS FOR AMERICA CEO: It's a constant reminder for me every day of what these men and women have done for us. That's what the flag is. I want people to look at that flag and say what is that, what's that all about? Because my kids are going to ask me that someday and I'm going to tell them.
(END VIDEO CLIP)
GALLAGHER: Others believe the flag is a symbol of POW's and MIA's from all wars, not just Vietnam. Pearlstein goes on to argue the flag hurt relations with Vietnam after the war. Experts say not true and that the Vietnamese are still helping the U.S. recover the remains of those still missing from the war, Megyn.
KELLY: Trace, thank you. We'll be right back.
KELLY: It's been an interesting week. A long six months, without a vacation for yours truly, do you know that? It's been six months since I've had a vacation. Just ask my assistant. So I'll be taking the next week and a half off, spending some time with my husband and my kids, trying to relax. The big challenge is trying to put down the Electronica and unplug it. Can you do it? When you go on vacation, I am going to try to look at my little one's faces and go for bike rides and play at the beach and not look at you. And when I see you back here on the 24th, we'll pick it all up again. Have a great week. See you soon.
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