Black Lives Matter movement takes on Hillary Clinton

Daily Mail: Clinton server running out of bathroom closet on 'The Kelly File'


This is a rush transcript from "The Kelly File," August 18, 2015. This copy may not be in its final form and may be updated.

MARTHA MACCALLUM, GUEST HOST: Breaking tonight, the Black Lives Matter movement takes on Hillary Clinton. As brand new video reveals tense moments between activists and the top Democrat. It ends with them accusing her of, quote, "blaming the victim."

Good evening, everybody. Welcome to "The Kelly File." I'm Martha MacCallum in for Megyn Kelly. So, last week, Hillary Clinton took to the battleground state of New Hampshire. And at that forum, leaders from Black Lives Matter planned to confront her about her husband's role in the war on drugs, something the group blames for mass incarcerations of African- Americans. But instead of confronting her publicly at that forum, they did manage to get a private audience with Clinton afterwards. Now the group has released videos of sometimes tense exchanges in which Clinton suggests that the activists need to come up with some concrete demands if they hope to accomplish anything. But at times her advice seems to backfire. Watch this.


UNIDENTIFIED MALE: If you don't tell black people what we need to do then we won't tell you all what you need to do.

HILLARY CLINTON, D-PRESIDENTIAL CANDIDATE: Well, I'm not tell you.  I'm just telling you to tell me.

UNIDENTIFIED MALE: What I mean to say is that this has and always been a problem of violence. There's not much that we can do to stop the violence against us.

CLINTON: Okay. I understand. I understand what you are saying.  Well, respectfully if that is your position then I will talk only to white people about how we are going to deal with a very real problem.

UNIDENTIFIED MALE: That's not what I mean. That's not what I mean.  But like what I'm saying is you -- what you just said (INAUDIBLE) -- what the Black Lives Matter movement needs to do to change --

CLINTON: Look, I don't believe you change hearts. I believe you change laws, you change allocation of resources, you change the way systems operate.


MACCALLUM: All right. There are so many levels to look at this exchange on. Let's start.

Marc Thiessen is Fox News contributor and former chief presidential speechwriter for President George W. Bush. Robert Zimmerman is a Clinton supporter and DNC committee member from New York. Gentlemen, welcome to both of you.


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

MACCALLUM: Marc, let's go to you first. What is your take away from this exchange, Marc?

THIESSEN: Yes. If Democrats are looking at this video, they ought to be worried because it is further evidence of the fact that Hillary Clinton is no Bill Clinton. I mean, can you imagine what her husband would have done with that opportunity? He would have bit his lower lip, he would have convinced them that he felt their pain, he would have connected with them on an emotional level and he would have laid out specifically what he would do as president to address their concerns. She did none of that. She starts talking there in the clip you had there. She starts talking about changing the way systems operate, allocation of resources, accuses them of not having an agenda and telling them, they have to come up with something that she can sell.

MACCALLUM: I don't know how she could have -- I don't know how, you think Bill Clinton could have finessed this moment better, perhaps. You know, Sanders has backed down to this group. O'Malley has backed down to this group and Hillary Clinton, you know, basically got sort of pushed back by this group a while ago. Let's skip forward and play the Hillary Clinton from a year ago when she said this and she perhaps has been paying for it until this day.


CLINTON: I asked her what kept you going. Her answer was very simple, kindness along the way from someone who believed she mattered. All lives matter. And for her --



MACCALLUM: All lives matter according to this group is a form of violent hate speech, Robert, to say that all lives matter. So she is in a tricky spot with this group. But Marc says that Bill Clinton could have played it much, much better.

ZIMMERMAN: Well, you know, I appreciate Marc's objective and analysis of how Democrats should feel. But let's look at the fact and let's look at this very unscripted very candid moment because it makes me as a democrat very proud and I think all Americans should be proud when we see candidates running for president actually sit and meet sometimes it was tense but it was a respectful exchange where Hillary Clinton spoke with them about being involved in our political process and engaging in our democracy, in our political system to seek achievements and to seek their goals. And very frankly, it would do the republican presidential candidates a world of good if they had the character and courage to sit down with groups like Black Lives Matter and learn what their agenda is. Sit down with the lesbian and gay community instead of advocating legislation to discriminate against them and limit their civil rights.

MACCALLUM: Robert, this group was saying to her, this group was saying to her, look, you played a role essentially in your husband's administration. His drugs program is what put us in this position where we have too many African-Americans incarcerated. No matter what she said, they said back to her, no, no, no, you have to take the blame. You have to take the blame.

ZIMMERMAN: Martha, that's a mistaken analysis.

MACCALLUM: She said, look, let's sit down, let's try to talk about this and they said, oh now, you are being condescending.

ZIMMERMAN: Excuse me, Martha.


ZIMMERMAN: Let's understand this issue of mass incarceration is not a democrat or republican issue. You see organizations like the Koch Brothers from the right wing, and the Heritage Foundation stand up and address this issue.

MACCALLUM: I'm simply saying that that is what they were saying. But let's remember another moment here. Let's talk about political courage, okay?


MACCALLUM: And let's look at another moment here. Because many people look back at the Sister Souljah moment which I know you remember well.

ZIMMERMAN: Of course.

MACCALLUM: When Bill Clinton took a somewhat similar moment and used it to turn around to members of his base and say, wait a minute. And that is how it works. Let's play it.


BILL CLINTON, FORMER U.S. PRESIDENT: Last year she said you can't call me or any black person anywhere in the world a racist. We don't have the power to do to white people what white people have done to us and even if we did, we don't have that low down dirty nature. If there are any good white people I haven't met them. Where are they? Right here in this room.


That's where they are. I know she is a young person but she has a big influence on a lot of people. And when people say that, if you took the words white and black and you reversed them, you might think David Duke was giving that speech.



THIESSEN: Yes. The difference between then and now is that in 1992 Bill Clinton was running as a centrist new democrat who was trying to convince the mainstream America that he wasn't too left wing to be president of the United States. Today, Hillary Clinton is running in a democratic primary trying to convince the democratic base that she is left wing enough to be their nominee. She is running against Bernie Sanders who is a self-proclaimed socialist who apparently isn't left wing enough for the Black Lives Matter movement. So, she's looking at this confrontation where these people are coming up to her and they literally said to her, you and your husband are personally responsible for turning black bodies into profit and she doesn't push back at all. And the reason is --


THIESSEN: No, it's not.

ZIMMERMAN: Let's understand what was going on in this video.

THIESSEN: Read the transcripts.

ZIMMERMAN: I did read the transcript. And I suggest you read that and not the talking points.

MACCALLUM: Go ahead. Robert.

ZIMMERMAN: The reality is she stood up and spoke with this group candidly unscriptedly and gave she gave them I think her real passionate belief about being involved in the system and the issues they raised are issues that are being raised from the right wing of our country.

MACCALLUM: Robert, let me ask you a question. Does this group in your mind, in your opinion deserve to be stood up to and pushed back a bit?  Let me read you what they said. They say Black Lives Matter is the most violent statement of love that you can do to say all lives matter. They say that is a violent statement to say that all lives matter. Yes. We understand it is true but in this country for the longest time United States acts like black lives don't matter. Do you believe that any candidate should push back against that notion?

ZIMMERMAN: I think, look, let's cut through the spin here. And let's understand these people and many African-Americans truly very deeply feel that they are not being respected and they're not being included and not being considered in terms of many aspects of our lives in the same way many other segments of our society do. Hillary Clinton had the character to meet with them and talk with them and none of the republican candidates do.

THIESSEN: So did Jeb Bush?

ZIMMERMAN: As a matter of fact, according to the "Huffington Post" --

THIESSEN: So, did Jeb Bush.

ZIMMERMAN: According to the "Huffington Post," he didn't and you can't name one other republican --  

THIESSEN: Oh, please.

ZIMMERMAN: By the way, how about meeting with the Hispanic community to counter the deportation strategies the Republicans are putting out there? How about talking to the gay and lesbian community? How about standing up together with the black community against voter discrimination laws.

MACCALLUM: All right.

ZIMMERMAN: The reality here is, what Hillary Clinton did and is very important is bringing people together and we see that happening -- society not just among Republicans running for president.

MACCALLUM: All right. Gentlemen, we have to go.

THIESSEN: She didn't bring anybody to get there. She fumbled.

MACCALLUM: Robert and Marc, good to see you both as always.

THIESSEN: Thank you.

ZIMMERMAN: Thank you.

MACCALLUM: Thank you, gentlemen.

Also breaking tonight, Fox's Ed Henry confronts Hillary Clinton regarding brand new information from the FBI concerning her private e-mail server.


ED HENRY, FOX NEWS SENIOR WHITE HOUSE CORRESPONDENT: NBC is saying that the FBI believes that you tried to wipe the entire server. Did you tried to wipe the entire server so that there would be no e-mail, no personal, no official, wipe the whole thing?  


MACCALLUM: Her answer to that question making some headlines tonight.  Ed will join us live with that story.

Plus, serious new questions about the security of that server amid a new report about the company that was overseeing it.

And as Donald Trump makes the campaign trail rounds, what some call his surprising views on the Obama administration's Iran deal that are just coming to light. Israel's ambassador to the United States Ron Dermer here on that.

And are the words mommy and daddy divisive? Wait until you hear this new form of political correctness, next.


MACCALLUM: Breaking tonight. Hillary Clinton pushing back against new questions about her private e-mail server as a new report surfaces that the FBI is optimistic that they can recover some of the data from the device after it was wiped clean. Listen to this heated exchange between Clinton and our own Ed Henry earlier today.


HENRY: The facts also are that two inspectors general say that there are hundreds, they believe of emails of classified emails.

CLINTON: But Ed, you are not listening to me. If it were -- Ed, if it were --

HENRY: These are independent inspectors.

CLINTON: Well, if it were a government account they would be saying the same thing.


CLINTON: Well, look --  

HENRY: Classified information got out.

CLINTON: This -- first of all that is not in any way agreed upon.  State Department disagrees. That happens all the time in these efforts to say what can go out and what can't go out. That is a part of the ordinary process. Everybody is acting like this is the first time it ever happened, it happens all the time.


MACCALLUM: Ed Henry, you are not listening to me live from Vegas with the latest. Good evening, Ed.

HENRY: Martha, good to see you. You heard her saying was basically this is routine. It happens all the time. And that is basically just a process matter. It tells agencies fighting over what is classified and what is not. Obviously anyone looking at this independently, objectively realizes this is not routine. This is not common and that there is a real great debate going on right now within the intelligence community and elsewhere about the possibility that Hillary Clinton basically leaked out classified information. That was a specific thing I asked her in the middle that stopped her and she said, "Well, that hasn't been determined yet."

Remember what she said in March at her news conference at the U.N.  She said, "Flatly, there is no classified information in the server." Now you have two inspectors general saying there may be hundreds of e-mails in there. Her defense of course is, it was not marked classified all of this now being investigated by the FBI. What the FBI is also looking at is that server. They had possession of it. I pressed her, as well, on these reports that someone wiped the server or at least tried to wipe the server clean. But now the FBI believes they can recover some of this data.  Listen.


HENRY: NBC is saying that the FBI believes that you tried to wipe the entire server. Did you tried to wipe the entire server so that there would be no e-mail, no personal, no official, wipe the whole thing?

CLINTON: My personal e-mails are my personal business.

HENRY: Right.

CLINTON: Right? So we went through a painstaking process and turned over 55,000 pages of anything we thought could be work related under the law that decision is made by the official. So, that's all I can say.

HENRY: So, did you try to wipe the whole server? You didn't answer the question.

CLINTON: You know, I don't -- I have no idea. That's why we turned it over --

HENRY: But you said, you were in charge of it. You were the official in charge. Did you wipe the server?

CLINTON: Like with a cloth or something?

HENRY: I don't know. You know how it works digitally. Did you try to wipe the whole server?

CLINTON: I don't know how it works digitally at all.


HENRY: What with a cloth or something? She said, you heard there at one point, she never directly answered though whether or not she wiped the server or whether she tried, whether she asked someone else to do it. For example, this company in Colorado Platte River Networks, they are the I.T. Company involved here that was overseeing her personal account. Very interesting exclusive today in the Daily Mail newspaper. The Daily Mail saying that this company has run out of a loft apartment in Denver and that their servers, not the Clinton server but their servers, where the e-mail run through eventually was actually kept in a bathroom closet, did not sound very secure -- Martha.

MACCALLUM: No. It certainly doesn't. Thank you, Ed. And I just mentioned, tonight we are learning more about the details of the company that managed the server before it was handed over to the FBI last week.  The Daily Mail broke that story today saying that the company contracted to manage that server, ran their servers out of a bathroom closet.

Joining me now, Daily Mail political editor David Martosko. Thank you very much, David. Good to have you hear tonight.


MACCALLUM: All right. Explain to us your reporting from your paper, from the Daily Mail. What are they saying about this bathroom server and how is it connected to Hillary Clinton's server and why would these people in Denver have access, you know, be the people who are in charge of this?

MARTOSKO: Well, that's really the big question, why these folks? Why not one of the dozens or maybe hundreds of larger more reputable companies that are among other things authorized to handle classified materials.  Platte River Networks is a mom and pop organization. It was as Ed mentioned a few moments ago, run out of somebody's loft apartment and the server closet was in the bathroom until just a few months ago when -- larger quarters. But as far as we can tell they have no authorization to possess or process or get anywhere near classified material. All signs right now point to this being a political connection in that Platte River Networks had some connections to John Hickenlooper, the governor of Colorado. And may very well even had some connections to Joe Biden around the time of the 2008 Democratic National Convention.


MARTOSKO: So, we really don't know why they were chosen but it clearly wasn't because of their level of expertise or qualifications. You know, I have a lot of respect for Ed. I got to tell you. Ed hit it out of the park today. There really should be more reporters with guts like that to put it right to Hillary Clinton and ask her about the server. But the bigger question now is, where is the data? Platte River Network says, it is very likely that a backup was made of that at some point. They're not saying whose got it or where it is, but if I'm Hillary Clinton and her aides right now, I have to be very, very concerned that all of these progressively wider and wider denials are going to be shown to be false.  This is a very, very big problem and there's a lot of very serious Democrats out there who think she is not going to last to New Hampshire.

MACCALLUM: I mean, I had a couple of different channels on in my office after she made this statement. And I was aghast actually to watch some of the reaction of people who watched it saying, you know, why is she being bothered with these questions? This is not what it is about. This is a silly matter. But when you look at this, you know, Platte River Networks or whatever, just raises the question and the bathroom server and all that, you know, that may have been backing up Hillary Clinton's server from her home, it just raises the question of sloppiness, you know, if you are dealing with potentially classified documents why on earth would you be relegating that responsibility to this small, as you put it, mom and pop company to be having control over that? And one of the big questions here, she said very clearly today again, she keeps saying, none of the things that I received or sent were marked classified. And that word marked has entered the lexicon in this debate since her original comments when she said nothing classified. Now she's saying it wasn't marked classified.  So, we may be talking about cutting and pasting by aides of e-mails into other e-mails. And that is illegal if that is what happened, right?

MARTOSKO: Well, not only is it illegal but frankly it doesn't pass the sniff test. Look, in December of 2009, President Barack Obama designated 20 people in his administration as having the authority to determine on their own if something is top secret classified. Hillary Clinton was one of those 20 people. She should know by sight if her gut tells her that something ought to be classified top secret. She doesn't have to look for a stamp or a mark from some inspector general in the intelligence community. She should be able to look and the president of the United States says, she should be able to make that determination all in her very lonesome. So, it really doesn't make a lot of sense for her now to say, well, I'm in the clear because nothing was marked classified.  When you're secretary of state, I don't think you get to fall back on that frankly.

MACCALLUM: Well, this investigation underway. She says it is all just bureaucratic mumbo jumbo and that the State Department and Intelligence Agencies often disagree on what is qualified and what is not.  So, we'll see in the end. David, thank you very much. Good to have you here tonight.

MARTOSKO: Anytime, thank you.

MACCALLUM: You bet. So to parents they are really the sweetest words that you'll ever here. The first time you hear your child say mommy or daddy. But to the PC police there are reason to think that they may be offensive and now there is a move to have them nixed from the important paper works. Why Tony Perkins says this is just a beginning of the move to redefine parenthood in this country. He'll talk about that with us, next.

Plus, one city's decision to allow illegal immigrants to serve on city commissions gets push back from a kind of unlikely source.


UNIDENTIFIED MALE: I would have -- there is a difference between immigrant --



MACCALLUM: Well, children in Tennessee no longer allowed to have a mommy and a daddy, well, at least on some official documents. Tennessee State's office of the court has revised their paperwork, they have replaced the words mother and father with the gender neutral labels of parent one and parent two.

Tony Perkins is the president of the Family Research Council and Tony, I'm guessing you are not too happy about this move.

TONY PERKINS, PRESIDENT, FAMILY RESEARCH COUNCIL: Well, Martha, look, brace yourself for more of this politically correct foolishness in the wake of the court redefining marriage, there are those who feel they have to redefine parenthood to shore up this decision. But denying and defying the basic facts of biology. I mean, this is really politically correct absurdity. There is no other way to describe it.

MACCALLUM: I don't know how you decide who is parent one and who is parent two?

PERKINS: Well, that is going to be interesting. I mean, how do you decide that? You know, do you draw lots? Do you have a baby toss? You know --

MACCALLUM: Maybe on some night you feel like parent one and other nights you want to be parent two, right?

PERKINS: Well, you know, it's interesting, Martha, it used to be kids that played make believe. Now it's the progressives and it's the bureaucrats that are making as if, making it gender doesn't matter in the creation and the raising of children. And this is problematic because this is a document first off that matters, a birth certificate. And where does this lead? If you have -- no longer have a mom and dad, you have parent one and parent two. I mean, there is significance in having a mother and a father?

MACCALLUM: All right. But what do you do for the two million children in the United States who have LGBT parents? What do you do for the gay and lesbian parents who are raising four percent of the adopted children in this country?

PERKINS: What do you do with the other, you know, majority of Americans who have a mom and a dad or you have, I mean, every child has a mom and dad. That is basic biology and the birth certificate serves a purpose. But here you have as you are redefining parenthood for a small percentage of the population that wants to be accommodated. And there's ramifications to this. Because this will bleed over into education. It will bleed over into every other aspect of life. In essence this is really a denial of nature. And what I find ironic about this is Martha is the ones who are so differential to nature when it comes to the environment, you know, are contemptuous when it comes to nature and human sexuality.

MACCALLUM: Something to think about. Tony Perkins, thank you very much. Good to have you with us tonight.

PERKINS: All right. Thanks, Martha.


A Fairfax County, Virginia police officer is facing criminal charges tonight for shooting a man while he was on duty. The officer says the shooting was justified. Mark and Arthur take up the legal debate, coming up.

And a new poll is finding Donald Trump on top of the GOP field. But there is one big problem. We will take a look at it.


CHUCK TODD, NBC NEWS, "MEET THE PRESS": Are we all a part of a show?  I mean, there is something --


TODD: You know that some of the criticisms, we all feel like we are in a reality show.

TRUMP: No, this is not a reality. This is the real deal.  



MACCALLUM: Developing tonight, as the deadline nears for Congress' vote on the Iran deal, a second Democrat is now breaking from President Obama and coming out against the plan. Today, Senator Menendez of New Jersey joined New York Senator Chuck Schumer in opposing the Obama Administration. The announcement comes as some Republican candidates are making the Iran negotiations a top sticking point in this election.  Senator Ted Cruz and Governor Scott Walker even goes far as to say that they would rip up the deal on day one if they were elected. But some candidates have taken a less strident view of that agreement. Take a look.


TRUMP: This deal if you had the right you would have the prisoners back years ago.

UNIDENTIFIED MALE: Iran would get still money. Let me ask you this.  I understand there are a lot of people critical of the deal. What deal can you come up with that wouldn't give Iran money?

TRUMP: Ok. I would have told them up front we will never give you back your money. We will never give you back your $150 billion. You are never getting that money back. That's number one. Number two, before we start negotiations you have to give us our prisoners. When it started it was three, now it is four. You have to give us back without question give them back. And you know what you don't want them but we do, and it will help us make a better deal together that is good for you, ok. But I would have told them upfront you will never get your $150 billion back. They are going to be such a wealthy, such a powerful nation. They are going to have nuclear weapons. They are going to take over parts of the world that you wouldn't believe. And I think it is going to lead to nuclear holocaust.


MACCALLUM: Joining me now Israel's Ambassador to the United States, Ron Dermer. Ambassador, thank you very much for being here tonight.


MACCALLUM: So you just saw quite a bit of Donald Trump talking about the deal with Iran. What is your perspective?

DERMER: Well, instead of ripping up a bad deal why don't we prevent a bad deal? Hopefully people in Congress on both sides of the aisle -- you saw Senator Menendez come out today, hopefully they will reject this deal and prevent it from happening. Because it does many of those things that you just heard. It actually paves Iran's path to a nuclear weapon. It doesn't block it. And it also frees up a lot of money for Iran. I'm not sure that if Congress rejects the deal that Iran gets that money, because I think Iran will still be subject to sanctions. If Iran comes and complies with the deal even after Congress rejects, then maybe that is their way to get the money. But I think if this deal is rejected by Congress I think that you can start anew and you get to a much better place.

MACCALLUM: Israel has to be looking at these many Republican candidates and wondering if perhaps one of them is the person that you will be dealing with in the future. When you look at Donald Trump and I know you know Mr. Trump, you have met Mr. Trump, is he somebody you want to deal with as President of the United States?

DERMER: Well look, we are not going to get involved in your politics on either side of the aisle. The American people decide who their next President is. We deal with one President at a time. This President made a deal. We don't question the sincerity of his motives neither President Obama nor Secretary Kerry. They believe this deal is better for America, better for Israel. We just disagree. We think this endangers Israel, it endangers our security, and it could threaten the very survival of Israel.  And we hope that it's going to be rejected. And I hope every single person who is seriously looking at this deal will read the speech that Senator Menendez gave today, because he was very clear about all the problems with the deal. Here is a senator who knows a lot about Iran and has been dealing with this issue for the last 20 years.

MACCALLUM: But there are many people who watch Washington closely, as I know you do, who believe that this situation gives Senator Schumer cover with his constituents, it gives Senator Menendez that cover as well, but that it will not pass.

DERMER: Well, I think there is a possibility that this deal will be rejected by both houses of Congress. I think it's definitely there. I think the more people learn about this deal, the more they are opposed to it. Americans oppose this deal by about two to one. Because I think people understand that Iran has been in a war with the United States for the last 36 years, they haven't forgotten taking over of an American embassy, the hostages for 444 days, they haven't forgotten the marine barracks that was blown up in Lebanon, they haven't the embassies in Africa, they haven't forgotten the thousands of American soldiers who have either been murdered or maimed by Iranian-backed IED's. So Iran is at war with the United States and Iran is saying they're going to continue that war with the United States and this deal gives them the opportunity within a few years, to not only get nuclear weapons but to get missiles, intercontinental ballistic missiles to use those weapons. And I have news for you Israel is on the same continent as Iran. Those intercontinental ballistic missiles, they're re not for us, they are for you.

MACCALLUM: I've got to go, but quickly, Ben Carson said he believes that the administration is anti-Semitic and that it's demonstrated in the way that it orchestrated this deal.

DERMER: Now look, I don't think that we should be questioning the motives of the other side, just I think those who oppose this deal, people should not be questioning their motives as well. Israel doesn't want to see a nuclear Iran deal, they also don't want to see war with Iran because we're the ones that will pay the highest price of the war. But there is a third way. You can get to a better deal. And all this talk of the opponents being only for war, the opponents not having an alternative, that is not true. We should sit together, scrap this deal which is very bad, and work to get a much better deal which will be safer for Israel and safer for America.

MACCALLUM: Ambassador Dermer, thank you. Good to have you with us tonight.

DERMER: Thank you.

MACCALLUM: And meanwhile, Donald Trump is gaining traction in some new polls. Take a look at his numbers, at the top of the pack according to a new CNN poll, up six points in this poll since last month. But it's not all good news for Mr. Trump out there when you look at the numbers, 58 percent of voters who lean Republican say they believe the GOP has a better chance of winning in 2016 if the Republican nominee is not Donald Trump.  Joining me now Katrina Pierson, a Trump supporter and Spokesperson for the Tea Party Fund, Katrina, welcome.


MACCALLUM: So what do you make of these numbers? His favorability is high among GOP voters at 58 percent. But the same amount says that they don't think he can beat Hillary Clinton or whoever turns out to be the Democratic nominee.

PIERSON: Well, I think that makes complete sense. Most of the GOP voters are trapped in an echo chamber where they are constantly hearing the beltway pundit's talk about how awful Trump would be for the country and how bad he is going to lose and how he's hurting with women, and he's also catching it from some of the conservative side of their supporters, saying he is not conservative enough. So of course they are a little bit on edge about where Donald Trump would stand in a general election. And I'd like to note that this particular poll did not include the Democrat responses.  But if you look at the national average, look at real clear if you want, whereas Donald Trump was trailing Hillary Clinton sometimes by 30 points two months ago, today he is within five points in a general election. And that shows real movement and the kind of movement we haven't seen in Presidential politics in a very long time.

MACCALLUM: We'll see. The most recent Fox poll showed that Bush could beat Hillary Clinton by just a couple of points, it was pretty close to the margin of error, Rubio also in that category as somebody who could beat Hillary Clinton, and Republicans that has to be their top priority.  They want to win, they want someone forward who can win. When you take a look at the regional contest, caucuses in Iowa about six month away, a little less than that at this point, you look at South Carolina, you look at New Hampshire, there are a lot of questions about whether or not Mr. Trump is going to be the retail politician that is needed in those states.  Is he looking forward to getting on the ground and being their day in and day out, and spending time talking to people?

PIERSON: Well, I think Mr. Trump is showing along the way that he is committed to this race, and I think a lot of the skepticism also comes from the fact that a lot of people still don't know if he is in it to win it.  But I think now that he has his first policy out there, he's been hitting the pavement hard and flying around in his helicopter and keeping his promises, I think more and more people are gravitating towards Mr. Trump.  In the CNN poll you mentioned, he's blowing everybody away on all of the policy questions on who do you trust to handle these issues. He is winning that by a high margin. And I'll remind you, just a few weeks ago, everyone was freaking out that he was hurting with women. In that CNN poll Martha, he was women's not only their first choice but also their second choice.  So see these polls are a little skeptical depending on who you are asking and who is putting them out. And that is why we launched We want to see where the base stands. Where are the people who are going to get out and vote?  Where do they stand? So we're going to that out at But this CNN poll was clear to me that we are just looking at the negative, the one negative in that poll which is 58 percent of the people are unsure that he could win in the general, when the numbers all over the place are showing that he just might actually pull this off.

MACCALLUM: We will see. Katrina Pierson, thank you very much. Good to have you tonight.

PIERSON: Nice to be with you.


So a Virginia police officer is facing criminal charges tonight for shooting a man while he was on duty. The officer says the shooting was justified. Mark and Arthur take up that legal debate, moments away.


MACCALLUM: Developing tonight for the first time in department history, a former Virginia police officer is now facing criminal charges for shooting an unarmed man while this officer was on duty. It is a case that took two years to get to the grand jury and a lot of water under the bridge in these cases. In the meantime, Trace Gallagher has the details for us tonight. Hi, Trace.

GALLAGHER: Hi, Martha. The grand jury returned the second degree murder indictment after hearing six days of testimony from 20 witnesses, including other police officers at the scene. The indicted former officer, Adam Torres did not testify in his own defense. In August of 2013, Torres was among four officers responding to a domestic dispute, a girlfriend had called police saying her boyfriend was throwing her belongings outside and that he had weapons inside. In fact, when police arrived, 46-year-old John Gear was at the front door with a gun in a holster. But police say he put the gun down and for the next 40 minutes spoke to police with his hands above his head, even asking permission to scratch his nose. But during negotiations, Officer Adam Torres surprised his fellow officers by firing a shot, Torres told detectives that Gear was making a move, watch.


UNIDENTIFIED MALE: Quick motion he brought both his hands down really quick near his waist. And I pulled the trigger one time.


GALLAGHER: But neighbors, Gear's family, and Torres' fellow officers saw things much differently, listen.


UNIDENTIFIED MALE: Next thing you know I heard a pop. You know? He just scratched his nose and put his hand back up there. And it just happened to fast - shot him like he shot him.


GALLAGHER: After he was shot, John Gear stumbled away from the door and because police weren't sure if he was dead or alive, they waited 70 minutes for a SWAT Team to arrive. They found Gear's body a few feet inside the door. The internal investigation found the shooting was not justified and Torres was fired. The family of John Gear fought for charges to be filed and even won a civil suit against the county, but it took two years for a grand jury to hear the case. Fairfax County now acknowledges that is way too long, 75-year history of the department, the first officer to ever face charges, Martha.

MACCALLUM: Trace, thank you.

Joining me now, Arthur Aidala is a New York Trial Attorney and Fox News Legal Analyst and Mark Eiglarsh, a Criminal Defense Attorney and Former Prosecutor. Gentlemen, welcome. Good to have both of you here, tough case. Good evening to both of you. It took a long time for this to get to the point that it sat a couple of years, 20 witnesses basically said that they believe he acted wrongly. Arthur, you disagree?

ARTHUR AIDALA, NEW YORK TRIAL ATTORNEY: Well, I wouldn't say I disagree. I would say this is a very difficult case, Martha. So if I was called by his family to represent him, basically I would have to put the burden on my client to explain what happened to a jury in as articulate, detail-oriented way possible that showed his fear, his belief, what he thought was going on at the time. Even if it contradicts what other people say, he would say look, my angle was this. I saw that. I saw his hand go down. I know he has a gun in front of him. He is not listening.


MACCALLUM: Are you saying there is an argument to be made that the officer acted in the best way that he knew how at that moment. You disagree, Mark.

MARK EIGLARSH, CRIMINAL DEFENSE ATTORNEY: And that is a wonderful, generic argument that we all make as defense lawyers. In this case, in the real world with these facts, what the officer did appears to be extremely excessive, unreasonable, and thus unlawful. And Arthur's fake client is going to the pokey.

MACCALLUM: Take a look at this case, take a look at what happened.  He was standing there for a long time with his hands according to the witnesses, Arthur pressed against the storm door. According to the testimony that we just had relayed to us, he claimed that even when he went to scratch his nose he asked permission. He clearly understood he was in a very high stress situation. The report also says the holster that he had his gun in he dropped to the floor so it was around his feet, it was not within his reach. That makes it a pretty tough argument doesn't it, Arthur?

AIDALA: It does. And what he is saying is he thought that there was a possibility that he had another weapon on him, and the high stress situation for the deceased here is obviously also a high stress situation for the officer. And basically what happens in the real world, Martha is I would come into the D.A.'s office -- the prosecutor's office and make all of these arguments to the lead prosecutor and try to negotiate some sort of a settlement where Officer Torres can see the light of day again.

MACCALLUM: It comes down to what the responsibility is of Officer Torres given position, given his -- the time that he's had on the force, given the expectations of how he should behave in that situation, right Mark?

EIGLARSH: Absolutely. And my bald, beautiful brother from Brooklyn, Arthur would put on those knee pads and he would beg for an amazing plea bargain. That's his best strategy. Virginia law very different than here in Florida, no stand your ground stuff. You must impose the least amount of force and look for other alternatives before you pull the trigger. And I feel for this cop because when you screw up as a police officer in these circumstances, it's a murder charge. You don't get to make a mistake.

MACCALLUM: So Adam Torres in your argument on his behalf, Arthur you would be -- it sounds like you would be seeking to mitigate.

AIDALA: I would be seeking to mitigate. And you have to understand he's being question -- the clip you just played with Trace, he is being questioned by an investigator under the circumstances which are so stressful without the benefit of an attorney. So when you have a lawyer -- I'm not saying you change the story but there is a way that a lawyer works with a client to tell every single detail, to explain what his perception was, the perceived risk that he saw, and maybe it mitigates the prosecutor or possible jury to give him really just the ability...


MACCALLUM: Mark, let me ask you one last question here in terms of the climate that exists in the country right now. This is a white officer and a white person killed who was killed in this situation, is there any bigger picture here that comes into play?

EIGLARSH: It shouldn't. I don't think that it does. I think the issue is based upon this officer and what he perceived, and the facts that exist in this case, it just seems like an unjustified shooting. I don't know how you get around that.

AIDALA: I'm going to go back to what you said. You may be right but the problem with these cases, Martha is when you make a mistake and you misspeak there is a price to pay. When I make a mistake in a courtroom there is a price to pay, when a police officer makes a mistake, he basically pays with his own life. Yes, he's taking someone's life and that's why if we want to look at the bigger picture, Martha, we need to keep in the front of our minds the real hard job that all law enforcement officers have.

EIGLARSH: Absolutely.

MACCALLUM: That's true.

EIGLARSH: Absolutely.

MACCALLUM: But as Mark said, you've got to look at every situation independently. And that's what they'll do. Thank you very much. Arthur, good to see you as always, Mark, many thanks, talk to you later.

All right, so one city's decision to appoint two illegal immigrants to city commissions has been generating protests for weeks. But last night, the city council got an earful from an unlikely source.


UNIDENTIFIED MALE: People shouldn't get rewarded for doing the wrong thing. It's not fair. And it's not fair for other people, as well. Thank you.



MACCALLUM: We are back, and there's a developing controversy over one city's decision to appoint two illegal immigrants to city commissions, and while folks have been protesting there for weeks. Last night, the city council got an earful from one man who came to this country without breaking any laws. Trace Gallagher joins us with what he had to say, he is in our west coast newsroom. Hey, Trace.

GALLAGHER: And Martha, last night's meeting was a pretty good indication that people are going to fight this. Huntington Park is southeast of downtown Los Angeles and it has a very large illegal immigrant population, so one city councilman decided to create more opportunity for those who are undocumented. When Council Member Johnny Pineda appointed two illegal immigrants to be city commissioners, the mayor then backed him up. Watch.


KARINA MACIAS, MAYOR OF HUNTINGTON PARK, CALIF.: We want to at least provide them a voice, or give some kind of advisory. They're part of the community.

UNIDENTIFIED FEMALE: I want to say thank you and congratulations for being bold and proactive in your nomination.


GALLAGHER: The city council calls the move historic, saying that Huntington Park is the only city in the country with illegal immigrant commissioners. And as far as we could find, they're right. But that historic status isn't exactly pleasing to critics who say it sends the wrong message to say not only can you be here illegally, you can come work for the city. This man came here legally. Listen to him.


FRANCISCO RIVERA, HUNTINGTON PARK RESIDENT: There's a right way to do things and a wrong way. People shouldn't get rewarded by doing the wrong thing. It's not fair for -- and it's not fair for other people, as well.


GALLAGHER: Both of the illegal immigrant appointees apparently worked on the Council Member Pineda's campaign, and some see this as his way of rewarding them. We're told the appointees will not have any power to change city ordinance and that federal law says they're not supposed to be paid. Then, again, federal law says they're not supposed to be here.  Martha?

MACCALLUM: Interesting. Trace, thank you. Going to take a quick break, we'll be right back.


MACCALLUM: So tune in tomorrow night or set your DVD, we've got Chris Stirewalt, Rich Lowry, and Dana Loesch. Thanks for watching tonight. Good to have you with us tonight, everybody. I'm Martha MacCallum. I'll be back in the morning with Bill. Have a good night. "This is the Kelly File."

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