Sen. Marco Rubio addresses Black Lives Matter movement

Presidential hopeful on protesters confronting candidates  on 'The Kelly File'


This is a rush transcript from "The Kelly File," August 13, 2015. This copy may not be in its final form and may be updated.

SHANNON BREAM, GUEST HOST: Breaking tonight, the Black Lives Matter movement confronts yet another presidential candidate. This time Republican Jeb Bush.

Welcome to "The Kelly File." I'm Shannon Bream in for Megyn Kelly.  Over the past few days, we have reported on a series of incidents in which Black Lives Matter activist crash campaign events. The latest in Nevada where last night Jeb Bush held a town hall. While this event largely went off without a hitch for Mr. Bush, there was a moment during a Q and A session on African-American issues that Mr. Bush was briefly interrupted.  Watch.


FMR. GOV. JEB BUSH, R-FLA., PRESIDENTIAL CANDIDATE: First and foremost, all leaders, whether they're presidents running for president, city council members, mayors, governors, everybody needs to be engaged in this to recognize that this is a serious problem. Perceptions become priority. And there is racism in America. No one should deny that.  Although there's been significant progress --  

UNIDENTIFIED MALE: What are you going to do about it?

UNIDENTIFIED FEMALE: How can you relate to it?

I'm sorry. I'll finish. I'm trying to --


UNIDENTIFIED FEMALE: I just want to know how you're going to relate to it? You came to our community, and I'm a single mom, my son who steps out every day, now he's going to stop back in because of racial tensions.  How do you relate to that?

BUSH: I relate to that by saying -- I relate to it as a president to try to create a climate where there is civilian understanding.


BREAM: And shortly after the town hall wrapped up, while Bush was shaking hands and talking with folks one on one, that now familiar chant began.


(Crowd): Black lives matter! Black lives matter! Black lives matter! Black lives matter!


BREAM: After that started, Mr. Bush stayed in the room for about two more minutes shaking hands, taking pictures before heading out the door.  Trace Gallagher has the rest of the story from our West Coast newsroom.  Hi, Trace.

TRACE GALLAGHER, FOX NEWS CORRESPONDENT: Hi Shannon, you know, before his town hall in Las Vegas, Jeb Bush met with the members of Black Lives Matter movement and during the town hall they mostly remained silent. But you saw at the end of the question and answer session, those chants began.  Listen again.


(Crowd): Black lives matter! Black lives matter! Black lives matter! Black lives matter! Black lives matter! Black lives matter!


GALLAGHER: One of those who was chanting then walked up to the former Florida governor to ask a question. Bush reached out to shake his hand.  The man paused and then they finally shook. Reports claiming the activist forced Bush off the stage are not accurate. The event was already over.  Not the same case last weekend when democratic presidential candidate Bernie Sanders was forced off the stage by the Black Lives Matter Movement.  Watch that.  


MARISSA JOHNSON, BLACK LIVES MATTER: You will join us now in holding Bernie Sanders accountable specifically for his actions.


GALLAGHER: And this week, Donald Trump said if he's challenged by Black Lives Matter activists, he would handle it a lot differently than Bernie Sanders. Listen to Trump.  


DONALD TRUMP, R-PRESIDENTIAL CANDIDATE: That will never happen with me. I don't know if I'll do the fighting myself or if other people will.  But that was a disgrace. The way they -- I felt badly for him. But it showed that he's weak.


GALLAGHER: And now the activists have responded to Donald Trump accusing him of threatening them. Then when asked if they would target his campaign, the founder of Black Lives Matter in Boston told CNN, quoting here, I can guarantee there will be more callouts across the country by folks in the network. In the meantime GOP presidential candidate Dr. Ben Carson was also asked about Black Lives Matter and he said instead of pointing fingers and creating strife, we need to solve the murder problem in the black communities -- Shannon.  

BREAM: So what exactly is Black Lives Matter looking to achieve with these confrontations. Marc Thiessen is our Fox News contributor and former chief presidential speech writer under President George W. Bush, Mark Hannah is a former Obama campaign aide and adjunct professor of Media Cities at the New School. Welcome to you both, Marks.


BREAM: Good to see you, tonight.

HANNAH: Good to see you.

MARC THIESSEN, FOX NEWS CONTRIBUTOR: Good to be with you, Shannon.

BREAM: All right. Thiessen, I'll start with you. Are they accomplishing their objective? Because we're talking about them. They're getting a lot of attention. And isn't that what they want to do, shine the spotlight on the issues they care most about?  

THIESSEN: They are. They're getting a lot of attention. I don't think the people are persuaded by smash mark tactics and by people (INAUDIBLE) microphones and by disrupting events. I mean in Wisconsin, people wonder why Scott Walker won his recall election, it's because the over the top tactics of the left wing activists who went and interrupted all of his events. So, they're not convincing a lot of people. But on the other hand, I think, I hope they show up at a lot of the republican events.  It's a great opportunity for the Republicans to respond the way Jeb Bush did, just to respond with empathy and compassion and explain their stance on the issue. So, I don't think that it's necessarily a bad thing for the GOP.  

BREAM: Well, Hannah, I want to ask you.


BREAM: When these folks show up and there is a lot of shouting and even at the Bernie Sanders event, it was unclear exactly what they wanted to say or what they hope to accomplish other than stopping him from speaking. At some of these events, you know, do they risk hurting themselves as a movement by not being able to, once they do gain control, articulate exactly what it is that they want from these candidates?

HANNAH: Yes. I think there's a saying in politics Shannon, that you can sort of antagonize people and persuade them at the same time. So, the Black Lives Matter protesters need to be very careful. I will say that people criticize the younger generation for being politically disengaged.  No one can call these protesters that you're looking at right now in the screen apathetic. And I want to say something that Marc said about -- what Marc Thiessen said rather, about Jeb Bush handling this with empathy. The answer that Jeb Bush came up with when asked about racial injustice have to do with people don't trust institutions. They needed to thrust institutions again. That's a pretty milly milestone (ph) and sort of flat footed answer. It's not this stuff of great, you know, inspiration leadership about thrusting institution. So, I don't think he is really connecting with these protesters and somebody needs to whether it's a republican or a democrat. And speak to their specific issues and also the broader societal problems and connect it with mainstream public policy solutions.  

BREAM: Well, Mark Hannah, let me ask you though, do you give him any credit for the fact that apparently his campaign knew ahead of time that these folks would be there. And he reached out and tried to over them sometime to meet together to have some kind of discussion and he didn't leave the room when that started. If you watch the raw video, he was there for a couple of minutes. And somebody who approached him and appeared to be with this group, did reached out, you know, reached out to shake their hand. And apparently that happened, I mean, it's his willingness to at least stay there and hear them out, do you give him any points for that?

HANNAH: I do indeed. Yes, I give him great credit for that, and for meeting for these protesters. Hillary Clinton met with the Black Lives Matter protesters at the New Hampshire earlier this week and I think Jeb Bush sort of gave them the same courtesy. I don't think though -- I'll say again. I don't think he's connecting. And that's going to be a big problem at the end of the day.

BREAM: Well, as Thiessen, you mentioned that this could be a good opportunity for any candidate who can sort of have this conversation and show some compassion or at least have some policies, then maybe directed at the concerns of the specific individuals. So, is it a potential win for those, you know, if these folks show up?

THIESSEN: Well, I think it's a golden opportunity for a republican.  First of all, you know, Jeb Bush get reached out to them, met with them and answered his questions and they still tried to disrupt his event. So, I think that shows pretty bad form. But I think these are opportunities for Republicans. What Republicans need to do is to respond with empathy to turn the debate and to make the case that look, it's the democratic policies of the last seven years that have left the vulnerable citizens in our country in the worst state that they've been in a generation.

We have a 31 percent young black unemployment rate which has double the white unemployment rate. Stagnant mobility which is a republican issue, that's a civil rights issue. They should say it's unacceptable that African-Americans are stuck in communities, trapped in poverty and violence and that we will fight for them. As Ben Carson said last night, we'll fight for them whether they vote for us or not. And they may not vote for the Republicans. But the persuadables who are watching will look at that and say, those are the people who we want to give a chance to solve all these problems.  

HANNAH: I vote for Marc Thiessen in 2016.  

BREAM: Wow! I'm writing that on my calendar.  

HANNAH: Seriously though Marc is look --  


HANNAH: Honestly I don't think that argument convinces a lot of Americans as a problem. But I do think that look, people need to be -- the republican candidates need to be as articulate as Mark just was in making that case. I think Ben Carson made some inroads, you know, this past week up in Harlem. But look, I produced political events for three presidential campaigns. Political protests have a fact of life in the campaign world.  They're going to happen. So, instead of sort of pushing back on this, the candidates need to find a way to address these grievances, whether you agree with them or you think they're legitimate or not. Because this is democracy in action.  

BREAM: Yes. When you have these public events, unless they're extremely controlled, and I won't mention any names, these things are going to happen. So, you do need to be prepared to have an answer for them. I want to play a little bit of Martin O'Malley, a former governor of Maryland, of course running as a democrat, part of what he sad to say when confronted with this conversation.  


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


BREAM: Yes. He was getting booed there and he later on apologized for kind of the way that that came out and, you know, been criticized for saying that he shouldn't have said all lives matter, every life matters or white lives matter. That he should have stayed strictly on only the black lives matter message. And that by diluting it, he was somehow Thiessen disrespecting them.  

THIESSEN: Yes. But he's a poster child of why this is such an opportunity for the Republican Party. I mean, the city of Baltimore which we all saw in flames just a few months ago is the laboratory of liberal social policy in the inner-city. Democrats have been in charge of Baltimore for 50 years and the result is what we saw in Baltimore. And Martin O'Malley presided other that along with the other democrat in Maryland. And the Republicans need to say, look, the Democrats declared a war on poverty 50 years ago and they reduced poverty from 14 points (INAUDIBLE) and we've got people living in inner cities without job, there's 31 percent black youth unemployment rate. Their policies are not working and Republicans have better alternatives to address the problems of poverty and for the lack of mobility in this country. So I think every republican who has a Black Lives Matter protest needs to turn this into an opportunity to take on the liberal welfare state and the failure of the war on poverty and say this is a result of democratic policy.  

HANNAH: Shannon, can I get in --

BREAM: Yes. I would like to give the final quick word to the Marc Thiessen 2016 campaign, director and advisor Professor Hannah.  

HANNAH: Chief strategist. Thank you. Look, it's ridiculous, it's ludicrous to think that these protests are the plight of a lot of the black community as a result of liberal policies. This isn't liberal, or conservative, democratic or republican. What it is, it's a product of a criminal justice system that institutionally discriminates against black people. And frankly a lot of the big thinking that's happened here has come out of the Republican Party. The push for criminal justice reform is happening in certain wings of the Republican Party. It's not just going to come to the floor unfortunately because it doesn't stoke the base. It doesn't appeal to the extremist elements of the Republican Party that you need to do unfortunately in a primary campaign. So if Mark's message about, you know, and not just sort of scapegoating or pointing the finger at liberals, if you pivot that to an actual affirmative, positive message of criminal justice reform, I think Republicans could make some headway on this matter.  

BREAM: All right. Well, every candidate out there, republican and democrat need to be prepared. Because you know who's coming. There's no excuse now. All right. Mark and Marc, thank you both.  

HANNAH: Thanks, Shannon.  

THIESSEN: Thanks, Shannon.

BREAM: And coming up, republican presidential candidate Marco Rubio weighs in on the Black Lives Movement and it's impact on 2016.

Plus, the letter he just wrote to Secretary of State John Kerry on the secretary's controversial trip to Cuba tomorrow.  

Then new questions after the FBI finally gets its hand on Hillary Clinton's private e-mail server. Senator Chuck Grassley was briefed by the intelligence community on the top secret contents of that hardware. He is here live on what investigators are looking for now.  

Plus, new details into the investigation to the woman at the center of the IRS targeting scandal. What we've learned about her and how it impacted the way the agency did business. James Rosen reports.  


LOIS LERNER, FORMER IRS OFFICIAL: On the advice of my council, I respectfully exercise my Fifth Amendment right and decline to answer that question.


BREAM: Breaking tonight, new reaction to the Black Lives Matter.  Protesters confronting presidential candidates as we just saw with former Governor Jeb Bush. Many of the folks running for the White House, they are weighing in on the movement already.


MEGYN KELLY, FOX NEWS HOST: What do you make of, you know, some of these democratic candidates are getting hit with the question, do black lives matter or do all lives matter. You want to take a shot at that?

CARLY FIORINA, R-PRESIDENTIAL CANDIDATE: First of all, of course all lives matter. Secondly black lives have been diminished under democratic policies. I mean, that's just true.  

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. There is a way to go that will lead to upward mobility as opposed to dependency. And let's talk about it that way and let's not be satisfied to be patted on the head and kept like a pet.


BREAM: Senator Marco Rubio of Florida is a republican candidate for president. Welcome, Senator. Good to see you tonight.


BREAM: All right. Thus far I haven't seen this turn up at any of your events but I would suspect that all candidates are just waiting.  

RUBIO: Look, this is a legitimate issue. And irrespective of somehow you may feel about how people behave. They have a first amendment right to talk about this. But there isn't a legitimate issue here. And I talked about it in the past. In fact, I did work on it as speaker of the floor of the House. It is a fact in the African-American community around this country there has been for a number of years now, a growing resentment towards the way law enforcement and its criminal justice system interacts with their community. It is particularly endemic among African-American males. That in some communities in this country have a much higher chance of interacting with the criminal justice than higher education.

We do need to face this. It is a serious problem in this country.  There are a lot of different reasons for it. Not all of them have governmental answers. But it is something we need to confront. Because you have a significant percentage of our population that feels that they are locked out of the promise of this country and the result is the anxiety and the frustration that you're now seeing expressed. Look, I personally know people who are professionals, who are African-American males, I have one friend in particular that's been stopped in the last 18 months, eight to nine different times. Never got a ticket for being stopped. Just stopped. If that happened to me after eight or nine times, you know, I would be wondering what's going on here. I would be upset about it. So with anybody else. I've seen it, not just in that instance but even growing up. It has to be confronted, but it may not necessarily have a federal bill that we can pass that can fix all this. This is a problem our nation has to confront because it is real.  

BREAM: But do you understand -- I don't have a full understanding of what these particular protesters want other than capturing the spotlight.  I'm not sure what they're asking --  

RUBIO: Well, I don't think they have a detailed policy plan they want us to carry out. And as I've said, some of it doesn't have governmental solutions. Look, if you're arrested, if you're a 19-year-old young minority male, African or Hispanics, you're arrested, you're probably going to get -- if you don't have any money, you're going to get public defenders and they're going to push you towards a plea deal because they're handling a thousand cases. You now have a record which means you are stigmatized in the eyes of the employers, in the eyes of your future, et cetera. So, I do think that one of the things that we have to do at the state level and potentially at the federal level is look for ways to divert people earlier on in first offenses, obviously not a violent crime.

So that you don't get people stigmatized early in life with a criminal record that basically begins to lock them out. And once you incarcerate someone, their chances of repeating offenses in the future begin to climb because you now basically housing them with criminal that they're learning the tools of the trade, et cetera. We do need to address it. And it is particularly troubling among young African-American males. So, I think there's a lot of different factors and I've done some work on it. You know, here in New York, the Harlem children's zone for example has an incredible record in a geographic area of improving outcomes. That is one aspect of a much broader set of things we need to do. I don't know if this group has a detailed policy agenda but it is a legitimate issue.   

BREAM: Okay. So, let's pivot to foreign policy. That's what we're going to be talking about here in New York tomorrow. I know that you're going to hit on Iran and Cuba to very controversial hot spots right now.

RUBIO: Yes. And for me they're controversial because of how this administration has handled it. You have tyrannies, one in Iran, one in Cuba, both receiving significant concessions from this president. The most powerful and important country in the world, in exchange in the case of Iran, for insufficient promises. Basically an agreement that guarantee that will possess a nuclear weapon in the next ten years. And the ability to strike the very city we're in tonight, New York City or the continental United States. In the case of Cuba, the Cubans have basically pocketed all of these concessions that the President has made but they have been very frank. Nothing is going the change in Cuba. This weekend alone they rounded up and arrested upwards of 90 or so dissidents. They beat people up on Sunday of this week. The Cubans has step flat out, not only is nothing going to change but according to Fidel Castro, he says we owe him money.

BREAM: Uh-mm. What you make of that saying that the U.S. should pay reparations to --

RUBIO: Obviously, it's ridiculous talk. But this is the kind of thing that they're doing it. It's a subliminal method they're sending to their people. Because that was published in the official government newspaper in Cuba. That wasn't a message to Americans, that was a message to the Cubans. And the message is, I know you're going to have an American flag at this new embassy, I know you're going to see more Americans travelers coming here. But we're still anti-American. Don't get your hopes up. Nothing is going to change in Cuba. Basically creating a condition before there's any change in the relationship, creating a condition they know will not be met as a new pretext for why Cuba is not opening up and so forth. The Cubans has been very frank, nothing is going to change in Cuba, they've said that. And so, Cuba is not going to change until Cuba changes.  

BREAM: We know you have a lot more detail that you'll lay out tomorrow morning in New York City. We'll be watching.

RUBIO: Thank you.  

BREAM: Senator, thank you.

RUBIO: Thank you.

BREAM: Well, new details on the investigation into the IRS targeting of conservatives. What new e-mails from the women woman at the heart of the scandal tell us how she viewed conservatives? James Rosen joins us live on that.  

Plus, actress Kelly Rutherford opens up about her international fight to win custody case of her children after New York judge sends them to live with their father overseas.  


ROBERT MICHAELS, LAWYER FOR DANIEL GIERSCH: The children were here since July 3rd. This was a mother refusing to abide by a court order. And forcing the father to do something that he was moved to do.          



BREAM: New developments in the investigation into the IRS targeting of conservative groups. Newly released e-mails from Lois Lerner show the former IRS official at the hearts of the scandal calling republican lawmakers evil and dishonest. Now a bipartisan review also suggests that Lerner's politics and those of the administration had a direct impact on the way the agency was doing business.

Chief Washington correspondent James Rosen is live with more. Hi, James.

JAMES ROSEN, FOX NEWS CHIEF WASHINGTON CORRESPONDENT: Shannon, good evening. These latest revelations from the inexhaustible archive of Lois Lerner's e-mails go mostly to motive, not to deed. But they're stark documents. They're author revealed unmistakably as a person of strong opinions and self-evidently strong dislike of conservatives. Lerner was the director of the division of IRS that reviews different organizations applications for tax exempt status. She has said she first became aware of the extra scrutiny that was being applied to conservative and Tea Party groups making such applications in June of 2011.

But the Senate Finance Committee in its recent report on the IRS handling of this applications concluded Lerner first heard about the Tea Party applications in early 2010. In the latest emails, we find one dated March of last year in which Lerner told a friend quote, "They called me back to testify on the IRS quote-unquote scandal and I took the fifth again because they had been so evil and dishonest in my lawyer's that dealings with them," unquote.

Lerner also called by far the worst thing that's ever happened to this country, not the civil war or 9/11. But the Supreme Court ruling in Citizens United versus FEC, a free speech and election spending case, its outcome was widely hailed by conservatives. The Senate Finance Committee's report split along party lines with the republican and democratic stuffs differing over whether the review process was tainted by political motivations. But the report acknowledged that more conservative groups than liberal ones wound up receiving unjust treatment at the hands of IRS.  Now, the Justice Department has declined to prosecute Lerner for contempt of Congress, despite the House having approved that criminal contempt citation last year, however, Shannon, the DOJ is still probing the processing of all of those applications.  

BREAM: All right. Great to see you, James. Thank you.

ROSEN: Likewise, thank you.

BREAM: Just ahead, the FBI finally gets its hands on Hillary Clinton's private e-mail server. But are we any closer to learning the truth about what was on it? Senator Chuck Grassley was briefed by the intelligence community on the top secret contents of that hardware and joins us live.


HILLARY CLINTON, D-PRESIDENTIAL CANDIDATE: The server contains personal communications from my husband and me. And I believe I've meet all of my responsibilities. And the server will remain private.



BREAM: Breaking tonight, new questions after the FBI seizes the private email server that Hillary Clinton used as Secretary of State, investigators taking possession of the server from a New Jersey data center. A lawyer for the company that managed the computer hardware says it is blank. Trace Gallagher is live in our west coast newsroom with more on that, Trace.

GALLAGHER: The inspector general for the intelligence community says at least four emails that passed through Hillary Clinton's private serve were classified. Of those, two were top secret and all of them were properly marked either top secret or sensitive compartmented information. But because Hillary Clinton maintained she never received or sent emails marked classified, the concern is that someone might have stripped the classifications before they were sent to Clinton's private server. Today the State Department was asked this.


UNIDENTIFIED MALE: The State Department would be able to determine whether any classification markings may have been stripped from any of these documents from anyone within the State Department

UNIDENTIFIED FEMALE: We have no indications that there were any -- that there was at all any stripping of classification marking on these.


GALLAGHER: And at least one of the emails contained satellite imagery and signals intelligence that could have only have come from the intel community, not the State Department, leading to accusations that someone in Clinton's inner circle stripped the classifications, which is a felony. Of course it's also against the law to knowingly store classified information at an unauthorized location. And marked or not, a former assistant FBI director said this to Chief Congressional Correspondent Mike Emanuel, listen.


UNIDENTIFIED MALE: Marked or not should a secretary or somebody at a senior level have known this was sensitive information?

RON HOSKO, FMR ASSISTANT FBI DIRECTOR: Unquestionably. Particularly the more sensitive, the more guarded that everyone has to be with respect to the proper handling.


GALLAGHER: Of course, the FBI is now analyzing Hillary Clinton's private server. It's unknown if they can retrieve any of the deleted emails. But they may also be looking to see if the server was ever hacked.  The inspector general says -- for intel says in the 30,000 work related emails that Hillary Clinton turned over to the government, hundreds of them might be classified, Shannon.

BREAM: All right. Trace, thank you very much.

Here now, Republican Senator Chuck Grassley who was briefed by the intelligence community's inspector general on the top secret information found on Clinton's server. He is the Chairman of the Senate Judiciary Committee. Mr. Chairman, thank you for joining us tonight, sir.


BREAM: Ok. You know more than we do, and certainly more than you can tell us publicly, but how concerned are you based on the briefing you got?

GRASSLEY: Well, first of all, the briefing we got has more questions to be asked and answered than we got in the briefing. Basically the briefing was just an acknowledgment on the part of the intelligence community that top secret communications were in the email files and weren't properly protected. And so that gets us back to the questions that I've raised in eight different letters to the FBI and to the State Department, is our national security being protected. Who besides Secretary Clinton had access to this information and to the FBI, the extent to which they're investigating it? And the extent to which national security classified information is being properly protected. And we don't have answers to our questions. And the briefing that you asked me about raised more questions than it has answered.

BREAM: Well, do you think you or any of the rest of us is going to get answers? Because we're told that the server that has been turned over to the FBI is "Blank."

GRASSLEY: Yeah. Well let me tell you, it's always difficult in any administration, including this one to get answers to a lot of oversight that we do as congressmen. Those eight letters that I've written, we've had acknowledgment of those letters but no information yet. So what I've done is I've put a hold on 21 State Department appointees to hold them up in the United States Senate until they answer my letters at this point.  I'm expecting to get answers, we're told that we would get answers but as of now no answers.

BREAM: All right. Well, average folks I've talked to -- I'm sure you may hear the same thing when they hear about these, trickle of new information that keeps coming regarding these emails and the server say at the end of the day, they don't think there's going to be any accountability any way, so why waste the time?

GRASSLEY: Well, why waste the time is because when the law isn't being followed, those of us on the Judiciary Committee have the responsibility to raise the issues that the law has been violated. We have oversight over the FBI. We expect the FBI to do their job. And if laws have been violated, don't you expect prosecution? Of course you do.  That's an executive branch privilege but we would expect that to be carried out. And we would expect to set an example. So like things in the future don't happen. And it ought to be -- in fact the laws have been violated in the sense that private email is being used for top secret information. And this is just a real threat to our national security, and we in Congress can't let that go by without bringing attention to it and hopeful that it ends, that it ends once and for all.

BREAM: Mr. Chairman, we know your committee is very busy. Thanks for making time for us tonight.

GRASSLEY: Thank you very much.

BREAM: Well up next, the bitter custody dispute spanning two continents. Actress Kelly Rutherford is here to explain what happened.  Why her children have been sent to Monaco and what is next in her fight.


UNIDENTIFIED FEMALE: They just think it's not fair. To them it's more like, mommy, what's up. What's going on?


BREAM: First on "The Kelly File tonight," actress Kelly Rutherford who was just dealt a serious blow in a custody dispute that's made international headlines, spanning two continents and six years. It all started in December 2008, when a then pregnant Rutherford and German businessman Daniel Giersch split up. The two went to a Los Angeles court, each seeking primary custody of their children. Her son is now is now eight and daughter is now six. In 2012 with the custody case still unresolved, Giersch business visa was revoked. The reason hasn't been made public. But that same year, a California judge ordered the children to temporarily live with their father in Monaco and spend summers with their mother. Rutherford has been fighting that temporary order ever since.  Recently the California and New York court system said they have no jurisdiction over the case. Just days ago after she failed to send them back overseas, a New York judge ordered Rutherford to return her two children to their father. Joining us now live, Kelly Rutherford and her attorney, Wendy Murphy, thank you both ladies for being with us tonight.  Kelly, I understand for you this is a very confusing process. You've gone to California, you've gone to New York, the two places where you've live here in the states with your children. Both those courts say they can't help you. What are you left with?

KELLY RUTHERFORD, FIGHTING FOR CUSTODY OF HER CHILDREN: That's my question, is what am I left with. What do you do as a mother when, you know -- we got married in California, my children were born in California.  I'm from California. The order was made from California saying it was temporary. We all agreed it was temporary. And now when it's time for the kids to come home, California is saying they have no jurisdiction. So I went into the New York court and asked them because I now reside in New York. And to take jurisdiction they said we can't take jurisdiction. So what do you do? You know, what is the right thing to do.

BREAM: How hard was it for you in that courtroom a few s ago to say good bye to them and send them again overseas without you?

RUTHERFORD: It's -- you know, I handed over my children and their passports and I didn't even get an answer from the judge as to when they were supposed to ever come back. And it's a very -- it's been a very surreal strange experience to go through as a parent and as a mother from the United States who had children here. I mean, their dad knew they were marrying -- he was marrying an American and having children here. There was no -- and he made that choice. I believe in equal parenting. I believe that children do need both parents, you know. And certainly children want to be with both parents. It's a natural thing. So -- but I'm -- my children are in a foreign country. So I don't think its equal parenting.

BREAM: And I know the fight is far from over for you. Wendy, I want to bring you in here. I'm going to read something from the father's attorney here. He said the judge correctly followed the law set forth in Hague Convention and the Uniform Child Custody and Jurisdiction Act, and enforced the terms of the Monaco judgment that mirrored the California judgment regarding custody and access. Ms. Rutherford stated during her appearances in the Monaco court and California court that she would return the children to their father on August 7th. Judge Gesmer, that's the New York Judge, reviewed the documents and transcripts and rendered the appropriate ruling in directing the return of the children to their father.  Wendy, where do you go from here?

WENDY MURPHY, ATTORNEY FOR KELLY RUTHERFORD: How about we get the truth instead of the statement you just read which is irrational, wrong, unconstitutional, and incorrect. I don't know how many words I can use.  First of all, the judge in New York had absolutely no authority to do what she did. Why? Because an American court can't just enforce willy-nilly, some foreign country's order, I mean what if the father sent some lawyers into court and said, you know, I would like my children to be shipped like luggage to live in Saudi Arabia. Thank you very much. Here are the plane tickets. What you need first, and this is what the UCC, JEA and the Hague Convention requires, is some kind of acknowledgment by an American court that there is a Monaco order, that the Monaco order has been validated and registered by that foreign country first. You've got to do that. And you're supposed to ask the State Department to become involved. None of that happened. This was an ambush. And you know, even worse than that is that we're talking about American citizen children. You notice how that statement you just read says absolutely nothing about the fact that in this country -- I don't know what it's like in a lot of other countries. But in this country when you're an American citizen, man, woman, or child, the Supreme Court of this country says nobody, nobody who is a citizen can be forced to leave their own country. These are not dual citizen kids.  They're just Americans. No judge, no judge, much less a judge from a low level court in New York, has the capacity, the authority to ship an American citizen to live in a foreign country, end of discussion. Now kids -- you know, kids are a little bit different. If parents agree that children should live someplace else, it's called expatriation and the parents want kids to do that. They could take them. Kelly and her husband could have agreed at the time to live in a foreign country. But they agreed to this. They agreed to the children remaining U.S. citizens. They agreed to the children never ever getting residency in a foreign country ever. The judge went along with that agreement, issued an order. So you tell me. What is a New York judge doing shipping American citizen children out of their own country? It's unconstitutional. California said it couldn't happen. The father agreed to it. What is going on here?

BREAM: Yeah. And Kelly, when people hear some of those facts and the fact that your two children are solely U.S. citizens, they find this very hard to understand as I'm sure you do too. What do you tell the children about what you're doing or where you go from here?

RUTHERFORD: I just -- what do I tell my children? That I love them and they know I love them. And no matter what, you know, their well-being has been my priority. I speak to them positively about their father, about the situation in a way that, you know, I want them to come through this and assume something wrong happened. And they can read about it later. I think it's important for me to honor them through this process. They are my priority. I've flown over there a million times and done what everyone has asked me to do. And it's just really -- it just seems to lack any common sense what's going on, from a parent's perspective.

BREAM: Well, we've continued to follow this story. We'll continue to follow it. We know this is far from over. They're very young so it's important for both parents to have that access and time with them. Kelly, Wendy, thank you both for coming and sharing your story tonight. Keep us updated.

All right, just ahead, our legal panel on where this international custody battle will have to go next.


BREAM: All right. Right before the break, we heard Kelly Rutherford's emotional accounts of the international fight over her children. But does the law stand on this complex custody battle? For that, we turn to Former Federal Prosecutor and Fox News Legal Analyst Lis Wiehl, and Criminal Defense Attorney Robert Bianchi. Thank you both for coming in.


BREAM: Good to see you. I recently covered a case within the last three or four years in the Supreme Court involving a U.S. parent, a foreign parent, and it was so complicated and this issue of habitual residence.  Where does the kid spend the most time? In this case it would be different if the kids hadn't gone to Monaco and stayed there all the time. But then it becomes their habitual residence, Bob.

BIANCHI: Yeah. And this is going to be a problem. The order that allowed the kids to come over here in the first place was from Monaco.  They've been there for years. They have their doctors there, their schooling, and everything. So this is going to the issue that they're going to be dealing with on September 3rd. And it will be interesting to see how it turns out because there is very complex jurisdictional issue here.


LIS WIEHL, FOX NEWS LEGAL ANALYST: Yes, it is very complex.  Jurisdictional issues from California to New York to Monaco. But these kids are U.S. citizens, all right? This parent, the father, the ex- husband, the only reason he got that is that Monaco -- to begin with was because he didn't have his papers lined up, his visa work papers to be here. So Kelly, to her credit, really I think was trying -- going with this divorce, trying to be amicable, knowing that these kids have gone through enough already. Trying to make it less difficult for all around so let it go to Monaco assuming of course the kids would come back. They're U.S. kids. And I'm sorry, I'm a mom of two kids myself, been divorced and looking at that, I cannot but put my parental hat on and say that's just wrong on all sorts of different levels.


WIEHL: This is their country.

BREAM: Well, there was a situation set up where he would provide for airfare, for travel when she would go there. There would be a home she could use, cars that she could use. Some people's reaction -- I hear form them is why doesn't she take the dad up on all the stuff and simply move to France?

BIANCHI: She doesn't have to do that. The issue here is the courts have to make a decision is to where the jurisdiction is, and the problem is that possession is 9-10 of the law. And she consented to go to Monaco.  She is a beautiful person, she's a mother fighting for her child. I get this. But there is confusion in California because they no longer say that they have jurisdiction. The kids are habitually residents now of Monaco.  And the Monaco court is going to be making the decision and she has remedies in the United States. She should take an appeal and try to square away this jurisdiction...


WIEHL: -- legal standard here -- best interests of the child. That's always what it's going to be. So if these two kids want to be with their mother -- and by the way, there has never been anything found against Kelly that she has been a bad mom.


BIANCHI: Or him.

WIEHL: Either way. You can't be pinning that kind of up. Isn't there some kind of middle ground? So getting back to the law here, California has punted it. Now it is in New York, New York has now punted it to Monaco. Monaco is now taking jurisdiction but it really shouldn't enhance, because it is not the country where these kids have their actual citizenship.

BIANCHI: I respectfully disagree with that for a couple of reasons.  Both state courts have denied jurisdiction. The federal court will not get involved. The State Department won't get involved. All the things are consistent here that this is not an issue for these courts here right now at this stage without an appeal to be handling. It is to be handled in Monaco first, and then you can make a decision as to whether...


BIANCHI: But what you don't do is just keep the kids beyond the court order from Monaco.


BREAM: We have to go, just a one word answer. If you were going on appeal in the U.S. would you appeal California or New York?

WIEHL: New York.

BIANCHI: I would go to federal court because there are multiple jurisdictions.

WIEHL: You have to start in New York and then to go federal court.

BREAM: All right. Thank you. On that note, we'll be right back.  Stick around "The Kelly File."


BREAM: You have been very chatty on Twitter tonight. Your top three things, you wanted to hear more from Marco Rubio, you wanted to hear more about Lois Lerner, and you love James Rosen so he was reporting on that.  But what is blowing up my Twitter feed right now is feedback on Kelly Rutherford. And many of you have you have questions about with her two children being U.S. citizens and why she's having such a difficult time -- just getting a court to take jurisdiction, not necessarily rule in her favor. We'll stay on the story. Tune in tomorrow night or set your DVR.  Governor Scott Walker, Howie Kurtz, and Chris Stirewalt all here, go to, and tell us what you think.

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