Donald Trump and Jeb Bush's war of words heats up

Trump attacks Bush on immigration, Bush challenges Trump's conservatism on 'The Kelly File'


This is a rush transcript from "The Kelly File," September 1, 2015. This copy may not be in its final form and may be updated.

MEGYN KELLY, HOST: Breaking tonight, we are now more than 12 hours into a massive manhunt after a cop is shot and killed on the job. Hundreds of federal, state and local law enforcement have converged on an area roughly 60 miles from the hometown. The officer killed was Lieutenant Joe Gliniewicz known to friends and colleagues as G.I. Joe. He was on a routine patrol when he radioed about some suspicious activity.  But by the time backup arrived, he was found shot in the head and stripped off his weapon. Police are looking for three suspects.

In a moments, Mike Tobin will join us live from the scene and Sheriff David Clark will join us on this latest tragedy for a police department that find themselves under fire.

But first, two big stories breaking tonight in the 2016 race for president as the fight between Donald Trump and Jeb Bush gets truly ugly and a surprise change in the rules means good news for a fast-rising candidate at the next GOP debate.

Good evening and welcome to "The Kelly File," everyone. I'm Megyn Kelly.

A surprise announcement late today means Carly Fiorina will likely find herself on the main stage at the September 16th republican presidential debate. The news comes after weeks of pressure over the fact that Fiorina has attracted growing support since the record setting Fox News Republican debates but could not make the cut for the main event given the rules that CNN had set. 

Meantime Donald Trump just took a new shot in what has become an all-day brawl between himself and Governor Jeb Bush. While Trump has criticized Bush for weeks, late yesterday he went after Jeb with a hard hitting ad already being compared to the famous Willie Horton attack on democratic nominee Mike Dukakis back in 1992. Watch.


JEB BUSH, R-PRESIDENTIAL CANDIDATE: Yes. They broke the law, but it's not a felony. It's an act of love.


KELLY: And today Jeb Bush fires back using Trump's own words against him and painting Trump as a fake conservative.


DONALD TRUMP, R-PRESIDENTIAL CANDIDATE: I lived in New York City and Manhattan all my life. Okay. So, you know, my views are a little bit different than if I lived in Iowa. Partial birth abortion. I'm really pro-choice. I am pro-choice in every respect and as far as it goes.

As far as single payer it works in Canada, it works incredibly well in Scotland.

The fact is that 25 percent for high income people should be raised substantially.


KELLY: In just the last couple of hours, Trump is out defending his time as a democrat and comparing his political transition to Ronald Reagan.

Chris Stirewalt is our Fox News digital politics editor. Marc Thiessen is the former chief presidential speechwriter for George W. Bush and a FOX News contributor. First, let's start with you Marc on the battle between Trump and Bush which has had some late editions today. But was Jeb Bush right to poke the bear? Because as Trump has been saying all along, if he feels attacked, he will attack back.

MARC THIESSEN, FOX NEWS CONTRIBUTOR: Oh, he had to punch back. I mean, look, Trump has been just pummeling him for weeks, I mean, calling him a low energy guy who puts his audiences to sleep whose policies are pathetic.  And then that last ad coming out saying that he basically polling a Willie Horton on him saying that he wanted to -- that it was an act of love for the killer of Kate Steinle. I mean, Trump was hitting him, was kicking sand in his face and Jeb Bush looked like that, a 98 pound weakling in the comic book ads, who is unwilling to fight back. Now, he is finally fighting back. And quite frankly, the fight benefits both of them.

KELLY: So, this was an effort by Jeb Bush in your view, not to hurt Donald Trump but to help himself?

THIESSEN: Sure. Well, I mean, first of all, it helps Trump. Because Trump has been taunting him. He wants to get into this fight because having a fight with Donald Trump makes him solidifies his position as anti- establishment candidate. But it also helps Bush because Bush now, it doesn't look like a reincarnation of Mitt Romney who is unwilling to defend his record, unwilling to engage. He is now fighting back and also he is distinguishing himself from the other candidates who have been unwilling or afraid to take on Donald Trump. And then they both benefit because a Bush/Trump war means there's no oxygen left for anybody else to get into the conversation. So, it's actually, in the short term it's very positive for both of them to have this fight.

KELLY: So, that's the short term strategy. What's the long term strategy here? I mean, Donald Trump has said, if I go Jeb Bush is going down with me. If I don't win this race neither will he. And Jeb Bush, I mean, what is his long game here?

THIESSEN: Well, his long game number one is he is not worried about offending the Trump voters. He's going after -- there's a Quinnipiac that shows that about a third of the GOP electorate is the highest of almost any candidate says that they will never vote for Donald Trump. So, he is trying to solidify his self as the leader of those candidates that will never support Donald Trump and solidify them around this candidacy. And then he is trying to chip away at conservative support for Donald Trump.  So, when that Quinnipiac poll, 38 percent of moderates say that they will never vote for Trump. Those people are probably going to go for Bush and a large number of them.

But interestingly, it's only 19 percent of Tea Party supporters and about 26 percent of evangelicals who say that they won't go for Trump under any circumstances. So, Bush wants to chip away a little bit of that, so he can build a coalition around those moderates and some of those conservatives.  The problem is, is that those conservatives may chip away from Trump but they're not necessarily going to go to Jeb Bush.

KELLY: That's the thing. If you support Donald Trump and you wind up deciding he is not your candidate, do you ever wind up as a Jeb Bush supporter? I mean, isn't it conventional wisdom you go to Ted Cruz who is also polling well or Ben Carson.

THIESSEN: Yes. I know. I mean, and adds like the one that Bush just put up saying, I mean, in their GOP primary, saying that the candidate supported partial birth abortions, supported the Obama stimulus, supported single parent healthcare and considered himself a democrat. That would be devastating coming from anybody but Jeb Bush. But for Trump's supporters, they look at that --

KELLY: I don't think that's true. I mean, all these issues, these guys are fighting about we raised at the FOX News debate. Jeb Bush was specifically asked about, it is an act of love in that debate. Donald Trump was asked about and I asked him one of these questions about his past support for partial birth abortion and his flipping a number of issues and the fact that he described himself as a democrat. And it doesn't hurt Donald Trump. The evidence is it does not.

THIESSEN: Yes. But the reason for that is because they -- Trump supporters all see this as the establishment trying to take down Trump.  So, they are not listening to these attacks especially coming from Bush who seems to be the ultimate establishment candidate. So, it's like being like Hillary Clinton saying Bernie Sanders isn't socialist enough. I mean, he is the establishment guy saying, Trump isn't a real conservative. Real conservatives don't consider Bush to be a real conservative. But the person who could benefit from this is Carly Fiorina. Because if conservatives are looking for an outsider who is a full spectrum conservatives and alternatives to Trump, then she could really benefit from that.

KELLY: Way to set up my next segment. Good to see you, Marc.

THIESSEN: Thanks, Megyn.

KELLY: The other big stories in the campaign trail, is a surprise announcement just a couple of hours ago on the next presidential debate.  After weeks of controversy a change in the rules suddenly creating an opportunity for former Hewlett Packard CEO Carly Fiorina to join the main stage, the primetime event at the next debate.

Chris Stirewalt is Fox News' digital politics editor. See, you come on "The Kelly File" one night and the next night they do what you said.


CHRIS STIREWALT, FOX NEWS DIGITAL POLITICS EDITOR: Well, I think it was us. I think we totally made them do it.

KELLY: So, she is on. And not that everybody else's expense. It's not official yet but if the things stated away, they are. It looks like she is going to get on the stage. But they are not booting anybody off. It could be 11 people up there.

STIREWALT: Right. They are just bringing, they're sliding another podium on to the stage. And look, doing debates as you know coming up with these rules, coming up with the criteria, you know this stuff, is pain staking work. It's hard. So, I'm not here to criticize anybody. And I am here to praise CNN for in fact saying, you know, what? We got to do it.


STIREWALT: This is the deal. But Carly Fiorina, goodness gracious, I got to tell you, if you would have picked six months ago who would going to be the person who had after burners at this point, you might not have chosen her and might say, oh VP -- no big deal. Well, guess what. She has demonstrated. How do you win a debate before you even get to the stage?  You make them take you. You make them say, I earned this, I deserved it.  You'll have me. And CNN says --

KELLY: She shamed them into it. Okay. So, here's an interesting dynamic.  She came out and Ben Carson was pretty vocal in saying she should be a part of this debate. And Donald Trump supported it, as well, which is very interesting because she has been very critical of him. That's one of the reasons she stood out at the earlier debate FOX News has, was her pointed attack on Donald Trump. And yet, tonight she thanked him and she thanked Carson for supporting her presence on the stage in this next debate. So, what happens in the next debate?

STIREWALT: Look, she is going to be the most dangerous woman on the stage.  Well, she will be the only woman on the stage. She's going to be the dangerous --

KELLY: All in one.

STIREWALT: That's right. She is going to be most dangerous person on the stage because she knows how to throw a punch. I don't know whether it is going to be Trump. I don't know whether it's going to be Bush but I can tell you this, we have seen her in action enough times now to know that she is not to be messed with. She is tough and she can stand her ground.

KELLY: Okay. But here is the thing. You have been telling us, Thiessen has been telling us, everybody has been telling us, that what we are seeing in the polling in particular in Iowa with those are the three front-runners now. Trump and Carson tied for number one, and Fiorina is right behind them. So, if it's those three and Iowa comes first. So, that's the contest most on the minds. She has to go after her fellow outsiders.  Doesn't she? Doesn't she have to sort of mix it up with the two guys that she just thanked for getting around the debate stage? Or does she take shots at Bush and Cruz and everybody else?

STIREWALT: Well, you have to be classy, right? Mr. Trump points out, you have to have class. That was having class on everybody's part. You are nice to your competitors. What she says on stage, I don't know. But I will say this. For candidates who are trying to get ahead who are behind, picking fights with Donald Trump did not work. It did not work because he is the ultimate insult comic when it comes to being a presidential campaign. His burns are the sickest, the roughest, the meanest, he roasts Jeb Bush, he makes him look like chopped liver. And it is tough. So, whether you want to get into a fight with that guy, I don't know.

KELLY: Did you say that Trump says, you have to have class to get the nomination?

STIREWALT: No, he said class is important. You have to have class in a lot of things you're doing

KELLY: Stay classy, San Diego.


KELLY: Great to see you, Stirewalt. You're a classy guy.


KELLY: We also have breaking news in the massive manhunt in Illinois, as night fall makes everything much more dangerous in the hunt for the three suspects wanted in the murder of a police lieutenant known to friends and colleague as G.I. Joe. In moments, we will go live to Mike Tobin who was on the scene right now. And with anti-police rhetoric from some Black Lives Matter protesters reaching disturbing new heights this weekend and wait until you hear what we just unearthed, two top voices in the law enforcement community. Ron Hosko and Sherriff David Clarke are now calling for the White House to get involved and fast. They will be here live right after the break.

Plus, with the breaking news in the latest release of Hillary Clinton e- mails, is her campaign now in critical danger? We have got a Frank Luntz focus group you must see just ahead.


UNIDENTIFIED MALE: If you can't trust the leader you are not going to vote for that leader.

FRANK LUNTZ, POLLSTER: I want a show of hands, how many of you trust Hillary Clinton here? Raise your hands.


KELLY: Breaking tonight. Darkness is making everything much more dangerous in a massive manhunt after the execution of yet another U.S. police officer. Lieutenant Joe Gliniewicz was on patrol less than 60 miles north of Chicago when he radioed back about some suspicious activity. A foot chase ensued and the line went dead. At the time back up had arrived, Gliniewicz had been shot and stripped of his gun and 12 hours later his killers remain on the loose.

Mike Tobin is live in Fox Lake, Illinois for us tonight. Mike.

TOBIN: And Megyn, there is a danger element with night fall. But police say, there is also an advantage particularly as it relates to the heat signature equipment on those helicopters. It was a hot day just below 90 degrees. The ground was hot. Now as night falls, the ground cools off and you could possibly get a greater contrast between body heat and the ground that is now cooling off. Beyond that police say they are getting a lot of support from the local community not just the people who are offering words of encouragement dropping off water and Gatorade, but a lot of people who are saying, I don't want to go home.

Please come check my house before I get in it. Police are getting a lot of open doors. Beyond that police are asking everyone out there if you know someone who lives in the chain of lakes area or in Fox Lake, it doesn't hurt to give them a call. If they answer the phone and everything is fine that means they are not subject to a home invasion. There is not a lot in the way of details as far as the suspects. All we know through police is that they are looking for two white males and one black male believed to be armed and that is because Lieutenant Joe Gliniewicz was stripped of his weapon. Gliniewicz was a 30 year plus veteran of the department. Very respected. I spoke with a cop who knew him for 27 years, he said, he was a phenomenal police officer, very athletic and very cautious, that kind of guy you would want to be your backup, so endeared by the community they gave him that nickname G.I. Joe -- Megyn.

KELLY: Mike, thank you. Well, it is way too early to know the circumstances behind the murder of this lieutenant in Illinois. But it clearly comes just days after Sheriff Deputy Darren Goforth was shot execution style in an attack that his boss linked to the quote, dangerous environment created by the Black Lives Matter." Tonight a petition has popped up at pressuring President Obama to send a delegation to the deputy's funeral on Friday and some leading voices in law enforcement are also pressuring the President to speak out against protests like this one which took place a day after the murder of the sheriff's deputy.


(Protesters): Pigs in a blanket, fry like bacon! Pigs in a blanket, fry like bacon! Pigs in a blanket, fry like bacon!


KELLY: Joining me now Ron Hosko, president of the Law Enforcement Legal Defense Fund. And a former assistant director of the FBI and Sheriff David Clarke of the Milwaukee County sheriff's office. Thank you both for being here. And so, let me ask you Ron whether you think the President has an obligation to speak out against what we are hearing the rhetoric we are hearing from this group specifically or not.

RON HOSKO, PRESIDENT, LAW ENFORCEMENT LEGAL DEFENSE FUND: I do, Megyn. I think that this president has taken some affirmative steps and he's made some comments in the past in other police encounters, some of which raised questions about his support for the law enforcement generally. And now it's time in light of not just the actions of this group but at this time in America. Last month was a bloody month for law enforcement. Fifteen police officers killed.

KELLY: And you know what we are hearing from, you know, the Black Lives Matter Movement defenders on that, Sheriff Clarke, is well, overall the numbers are not so bad of cops getting killed. So, you know, I know they are rough for right now but like, year to year, you guys are doing okay.

SHERIFF DAVID CLARKE, MILWAUKEE COUNTY SHERIFF'S OFFICE: It's the disgusting nature that this movement has taken, the slang that I talked about. The thing is Megyn, they have the same attitude about black on black crime, no big deal, you know, nothing to see here. I think the President of the United States because he weighted into this in the days after Ferguson with some inflammatory rhetoric in where he breathed life into this anti-cop sentiment that -- United States, he made the statement that our law enforcement officers have a fear of people who don't look like them.

You look at the Fox Lake lieutenant who 30 years on the job the report I got he was considering retiring at the end of the month. He had 30 days to go, father of four. And now, look, look at what we're looking at here now.  Look, the President now because he weighted into this and weighted in after the Cambridge Police Department and he said, they acted stupidly, and in a statement that he said, he has got an obligation to come out now and walk some of this back and remind people of the important role that law enforcement officers play and that --

KELLY: He does that.

CLARKE: -- no longer will list anti-cop madness. Anti-cop slaying.

KELLY: Okay. He always does that. He always gives a shout out to the cops when he comments on this matter. But the critics have said, Ron, whenever he compliments the cops or, you know, pays tribute to the hard work they do, there is always a but. You know, but, we have seen this epidemic but, you know, young black men have good reason to fear, but we have this problem that the cops are responsible for and so on.

HOSKO: We have. And too often it does seem like it is superficial, like it's something he has to say, not something he feels strongly about or truly believes in. Here we have a movement with hundreds of people standing behind a Black Lives Matter banner discrediting themselves. They have done it before. When is it time for senior administration officials to discredit them, as well. These are people who are tugging as hard as they can and tearing at the fabric of trust between our community and law enforcement. It is time to push them to the margins.

KELLY: Let me see. We have -- I think we have some of the video. So, it's not just the -- what do we want, dead cops, when do we want them now which we saw in New York City in December. Two cops were killed execution style. It's not just what we saw in Minnesota at the State Fair as people were chanting, "Pigs in a blanket, fry them like bacon," which was the same thing the guy who executed the two New York cops posted online right before he murdered them. But here is some of the messaging we're hearing, this is just from August, from the new Black Panther Movement. Listen to them.



(Protesters): Bang, bang!


(Protesters): Bang, bang!


(Protesters): Bang, bang!


KELLY: Oink, oink! Bang, bang! Sheriff Clarke, and they went on from there saying, you are going to stop doing what you are doing or we will start creeping up on you in the darkness.

CLARKE: That's still some of the tame stuff that compared to some of the real ugly violent stuff that I have heard. But look, Megyn, the attorney general of the United States has an opportunity here to display some leadership. She is a law enforcement officer as the attorney general. I made a call into her office in July to talk about this uptick in the killing of law enforcement officers across the United States. And she handed that off or her office did to an underling director who sent me an e-mail saying, thanks for the offer, but the attorney general's schedule won't allow her to have a conversation with you. A cold slap in the face.  It's that sort of thing that, you know, makes us here at the local level, local law enforcement officer not have any faith in the attorney general's office in the United States. We know the political class clearing the President, has turned its back on us. And we are kind of out here alone now. We're still going to serve our communities as lieutenant at Fox Lake.  Thirty days from retirement he is still out there doing self-initiated policing and it cost him his life.

KELLY: Wow! And the manhunt continues as darkness has fallen. Gentlemen, thank you both so much.

HOSKO: Thanks, Megyn.

CLARKE: Thank you, Megyn.

KELLY: When a crazed gunman opened fire in Tucson dozens of Democrats were quick to blame the angry rhetoric of the Tea Party and its supporters. And they demanded action. So where are those voices on the angry rhetoric today that we are hearing in the bang bang oink oink pigs in a blanket crowd?

Richard Fowler and Katie Pavlich are on that, next.

Plus, Kate Steinle's family just filed a lawsuit against the city of San Francisco for its role in her death. You heard some analysis of this earlier. I will tell you my take on the case coming up.


LIZ SULLIVAN, MOTHER OF KATE STEINLE: This is for humanity. This is for the future. Ours is gone. It's gone from us, but we want it better for the good of all.




(Protesters): Oink oink, bang bang! Oink oink, bang bang! Oink oink, bang, bang! Oink oink, bang, bang! Oink oink, bang, bang!


KELLY: That was the new Black Panther group protesting in front of a Texas jail a few weeks back. Just one of the angry and incendiary chants we have seen against police in recent months. We have heard from folks like the two law enforcement officers you just saw. But so far haven't heard much from Washington. However, take a walk back with me to 2011 when a shooting in Tucson led to an angry chorus complaining about what they said was angry Tea Party rhetoric.


REP. STENY HOYER, D-MD., HOUSE MINORITY WHIP: As Chuck Schumer was saying, in politics, in the media, in public square fashion our rhetoric so that it does not insight but informs.

SEN. DICK DURBIN, D-ILL., SENATE MAJORITY WHIP: Maybe constitutionally permissible but it shouldn't be acceptable rhetoric. We shouldn't invite it on radio talk shows or TV at least without comment. We ought to say that just goes too far.

REP. DEBBIE WASSERMAN SCHULTZ, D-FLA., CHAIR, DEMOCRATIC NATIONAL COMMITTEE: The discourse in America, the discourse in Congress in particular to answer your question very specifically has really changed. And I will tell you I hesitate to place blame, but I have noticed it take a very precipitous turn towards edginess and a lack of civility with the growth of Tea Party movement.

AL SHARPTON, NATIONAL ACTION NETWORK: I think all of us need to say that our rhetoric we need to check. None of us should become so defensive that we say we are not going to change. We all need to see if there is change required change needed and I realize that there are some very unbalanced people here in this country that anything can trigger.


KELLY: Joining me now Richard Fowler, nationally syndicated radio host and Fox News contributor. And editor, Katie Pavlich. Good to see you both.

Wow! So, I mean, I look, I went out to see Katie whether Debbie Wasserman Schultz was out denouncing the rhetoric that we are now hearing, you know, the lack of civility that she was complaining about with the Black Lives Matter Movement. And this is why I found her saying about that movement.  Stand by.


WASSERMAN SCHULTZ: I'm proud of the young people who have been pushing that Black Lives Matter Movement. We brought the confederate flag down.  We have made sure that symbols of hate, symbols of hate are unacceptable in America.


KELLY: Your thoughts.

KATIE PAVLICH, TOWNHALL.COM EDITOR: Debbie Wassermann Schultz are really concerned about symbols of hate she would be denoting the Black Lives Matter Movement. This is a movement that promotes the execution of police officers. This is a movement that glorifies Assata Shakur who of course is a notorious cop killer who is now in Cuba as a fugitive. They wear t- shirts at their rallies that say, Assata taught me. This is a movement that is easily condemnable and Democrats like Debbie Wasserman Schultz and quite frankly President Obama stand on the sidelines and refuse to do it whether in Minnesota, in New York City, in Ferguson chanting, you know, pigs in a blanket fry them like bacon. This is a movement that promotes the execution of police officers. And not only are they not condemning it, they're promoting it.

KELLY: The DNC just came out with a resolution supporting the Black Lives Matter Movement which BLM rejected. But they are trying to tie themselves to the movement, the same movement that's chanting, "Pigs in a blanket, fry them like bacon." And these people are denouncing not long ago the lack of civility in America, meanwhile you have people reconnecting with this movie, or with its movement putting up the sign of a roasted pig and Officer Darren Wilson's name on it.

RICHARD FOWLER, NATIONALLY SYNDICATED RADIO HOST: One Megyn, I think that you -- I don't think we are watching the same Black Lives Matter Movement.  I think if you talk to any of the organizers on the ground both in Ferguson and Baltimore in New York, they will tell you they are a nonviolent movement that all they want to do is end disparity --

KELLY: Why are they chanting pigs in a blanket --  


KELLY: -- fry them like bacon? That was a Black Lives Matter movement in Minnesota.

FOWLER: Wait a second, Megyn.


FOWLER: That is one small incident of the Black Lives Matter.

KELLY: Why are so many on the list so quick to tie --

FOWLER: The segment started where the Black Panther Party which is not part of the Black Lives Matter Movement at all.

KELLY: -- a few comments made by alleged Tea Party members to the entire Tea Party. How about that?


Hold on.

FOWLER: The Black Lives Matter Movement --

KELLY: Hold on. Hold on.

FOWLER: -- is asking for accountability from police officers.

PAVLICH: Condemning Richard.

FOWLER: And that's all -- and all we are hearing from -- why would I condemn?

KELLY: Please stop. Just let me get the question out. Richard, your respond Richard, and Katie you're on (inaudible). Richard, the people on the left we just showed were very quick to blame violence that happened in the country, on what they alleged were a couple of Tea Party comments that they found to be racist (inaudible)? Why are they not as outraged now, when as you point out, OK, maybe it was just Minnesota, maybe it was just (inaudible). What -- maybe just that one roasted pig. But suddenly, the actions of a few do not apply to the many. Why the double standard?

FOWLER: Well, first, the shooting that you are talking about on the video clip, there is actually evidence that indicate that this person was -- who had Tea Party sentiment, he agreed to the Tea Party.

PAVLICH: That's not true.

FOWLER: And this case in Houston or in Texas rather, there is no evidence, right? There has been no investigation. And from somebody, Megyn, who is a lawyer, he would say, let's see the facts first.


FOWLER: We don't know the killers been connected with, with the Black Lives Matter movement or not. Now that being said, the Black Live Matter movement for the past year has petitioned and fought to make sure that black lives indeed do matter and not gun down by police officers or choked to death in New York City by like Eric Garner was.

PAVLICH: I just want to make it clear and obvious that Richard Fowler refuses to condemn Black Lives Matters protesters.


PAVLICH: Who want police.

FOWLER: I will not condemn people who would say the police.

KELLY: Richard.

FOWLER: That our black man should be shot by police.

PAVLICH: Richard.

KELLY: Richard.

PAVLICH: You refuse to condemn Black Lives Matter protesters.


PAVLICH: Officers to be executed in their police vehicles. That is what you are promoting tonight.


PAVLICH: OK, let me just.


KELLY: We'll continue with Frank Luntz after the break.


ANNOUNCER: From the world headquarters of Fox News, it's "The Kelly File" with Megyn Kelly.

KELLY: Developing tonight, new details on the ongoing Hillary Clinton e- mail scandal, after the State Department releases 7,000 new documents that Mrs. Clinton kept on her private server for years. Chief White House correspondent Ed Henry, live in Washington with the latest on what we found, Ed?

ED HENRY, CHIEF WHITE HOUSE CORRESPONDENT: Megyn, the key moment in 2010, when Hillary Clinton's e-mail went down, even the State Department IT team didn't know about the use of her personal e-mail address and server. Clinton reached out to her close aide, Huma Abedin writing, do you know what this is? Abedin responded your e-mail must be back up. They had no idea it was you, just some random address. So they e-mailed, raising another new question for the State Department, which officials were in the loop on the unusual arrangement? We pressed them on that and they would not answer, so then we pressed them on another question. Whether anyone ever stood up inside the State Department, and try to prevent the secretary from having this personal server. Listen.


MARK TONER, STATE DEPARTMENT DEPUTY SPOKESPERSON: I can't. And I just don't have the history, but I also don't have, you know, I don't have the authority to speak definitively to that. Again, these are questions that are appropriate, but appropriate for other processes and reviews.


HENRY: Now out on the trail, Hillary Clinton has also said that her controversial adviser, Sydney Blumenthal sent in e-mails that were unsolicited. Well in this batch, 297 e-mails mentioning Blumenthal, somewhat with Clinton encourage him to send more. In some of these e-mails, he slams Speaker John Boehner as an alcoholic. Boehner's office would not respond to that personal slam today, saying instead, the only reason there is an investigation of this classified information is because Boehner pushed it, Megyn?

KELLY: Ed, thank you.

The latest polling out of Iowa shows Hillary Clinton, losing ground among democrats and it's raising new questions over how badly this ongoing scandal may be hurting her campaign. Pulitzer Frank Luntz, put together a focus group of republicans and democrats to try to figure that out. Frank is the CEO of Luntz Global, and he's with me now. So 50 percent republican, 50 percent democrat or half and half, get together and you showed a series of exchanges with Hillary Clinton. The first one had to do with an exchange with our own -- Ed Henry, right? On whether she had wiped -- why she wiped her server clean, right?

LUNTZ,: Yup.

KELLY: And what are we going to see, not in terms of the results, but what should the people be watching for us, as we play this out?

LUNTZ: The red line represents republicans and green line represents swing democrats. The higher the lines climb the more favorable the reaction. In this case the lines caved.

KELLY: OK, watch.


HENRY: Did you wipe the whole server, so you think?

HILLARY CLINTON, FORMER SECRETARY OF STATE: I have no idea. That's why we turned it over.

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

CLINTON: What? Like with a cloth or something?

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

CLINTON: I don't how it works digitally at all. I do not have any.

HENRY: Right. Did you not try?

CLINTON: And I know you want to make a point and I just can repeat what I have said.

HENRY: It's a simple question.

CLINTON: In order to be as cooperative as possible, we have turned over the server. They can do whatever they want to with the server to figure out what is there and what is not there. That is for the -- you know, people investigating it to try to figure out. But we turned over everything that was work related. Every single thing, personal stuff we did not. I have no obligation to do so and did not. Thank you all.


LUNTZ: Awful. Two points here, number one, don't make a joke when national security is involved.

KELLY: Like wipe the server clean with a cloth.

LUNTZ: Right, and number two is that she has to come clean. You acknowledge that something went wrong. She refuses to do it because her campaign aides were saying to show any weakness at all is a mistake. And I will tell you, as someone who studied this and participated in politics, this candor is the best weapon and she refuses to use it.

KELLY: She went up at the end there, when she said, you know, we turned over everything and that is for people investigating to find out. You know, she said we turned over the professional stuff, but not personal stuff. That really gets to the heart of the issue. You're trying to ask her, why did you make the determination of what was personal? But so her spin at the end, worked a little bit better than the stuff at the middle.

LUNTZ: But she should have talked about accountability because it's the number one attribute that the American people want from elected officials. She should say, "I will be held accountable as I should be."

KELLY: OK, you also asked about her trying to reassure people, "I have people love me" What do you think, they love -- what? They love and they trust me. And here is how Frank's focus group felt about that. Watch. Here by (ph).


CLINTON: And do trust me.

UNIDENTIFIED MALE: We have a candidate here who is not being honest or candid about what she's done with her e-mails.

UNIDENTIFIED MALE: Voters thinking that she is dishonest and not trustworthy.

UNIDENTIFIED FEMALE: She is doing terribly in terms of people believing she is honest and trustworthy.

UNIDENTIFIED FEMALE: Trust is really going to hurt her in the long run.

CLINTON: Again, let's take a deep breath here. I've never had a subpoena.

PRESIDENT BARACK OBAMA: We sent her a subpoena.

UNIDENTIFIED MALE: Couldn't be more plain, the honorable Hillary R. Clinton.

CLINTON: I did not e-mail any classified material to anyone on my e-mail.

UNIDENTIFIED MALE: Classified information was transmitted on the private server that she ran out of her home.

HILLARY: I did not send nor receive anything that is classified.

UNIDENTIFIED MALE: The FBI is looking into the private e-mail system that Hillary Clinton used.

CLINTON: Maybe the heat is getting to everybody.


KELLY: What are those lines shows us?

LUNTZ: This is an ad, so we start at zero in the higher climbs the more credible, persuasive and believable it is.

KELLY: Because they're voting at the -- whether they believe the ad?

LUNTZ: The ad


LUNTZ: And the ad is a negative ad on her. And what's important are they remembered this. She said she never had been subpoenaed and then they saw her name on the subpoena. That in itself is crushing. And I'll tell you this. If it is shown that she wiped her server after the date that that subpoena was issued in March, then she is in deep, deep trouble. No matter what happens legally, the public will believe that she simply not been sufficiently honest to be a presidential candidate.

KELLY: We don't have enough time to show it, but the -- I know you also polled on whether how she was doing on her language when it comes to the middle class and income inequality. Well, the answer to that is she is doing well.

LUNTZ: Oh, her speeches are amazing.

KELLY: That's a complete thought.

LUNTZ: Her speeches are amazing. She is persuasive. The challenge for her is in this e-mail. Why don't you come clean? It's a simple question. And she should say, look at the American people straight in the eye and say look, I shouldn't have done this. In context, I should not have done it. I got it wrong and here is what we going to do to get it right in the future. But she has no humility. And that's what's going to hold her down.

KELLY: She started to say, look, clearly, I should have used two devices. She started to hedge a little bit on that on the full blanket, I did nothing wrong defense, until we will see whether she takes your advice. Frank Luntz, always a pleasure.

LUNTZ: Thank you.

KELLY: Good to see you. Well, there is also new fallout from Kentucky, after a county clerk defies the Supreme Court's ruling by denying marriage licenses to same-sex couples.

And up next, Kate Steinle's family files a lawsuit against the city of San Francisco, hoping for justice after their daughter was killed by an undocumented felon, my take on this case, right after this break.


BRAD STEINLE, BROTHER OF KATE STEINLE: We are here to make sure that a change is made, so nobody has to endure the pain that my mom and dad and I go through on a daily basis because the system failed our sister.



KELLY: But today, we learned that the family of Kate Steinle, who was murdered allegedly by an illegal immigrant felon, who was deported five times from the country, but was nevertheless allowed to stay in San Francisco, has filed a lawsuit. Alleging negligence against the city, the sheriff's department and the sheriff who failed to protect Kate. It is based on San Francisco's sanctuary city policy, which protects illegal immigrants from deportation. A sympathetic as the Steinle's family is, a legal matter, the case is almost certain to fail. No similar lawsuits have ever been successful, and one directly on point was brought and rejected just a few years ago in the case of Danielle Bologna, a widow whose husband and son were killed takes impart to this same policy. The law provides absolute immunity for the city and lawsuits challenging its ordinances, even those passed by lawmakers who are clearly overstepping their authority or thumbing their nose at the feds. The exceptions are extremely limited and do not apply here. As sad as it is to the Steinle family, their remedy in this case is political not legal. Those who back these policies and enforce them can be removed. The law, however, is not on the side of the Steinle's. Mark Eiglarsh is a criminal defense attorney and former prosecutor. Brian Claypool is a civil rights and a criminal defense attorney. Thank you for both for being here. Mark.


KELLY: What do you think?

EIGLARSH: Yeah, you just took away my argument. That was it. I think it is a wonderful lawsuit if the purpose is to raise awareness and potentially, change laws, which are needed. This was a tragedy and it shouldn't have happened. However, the due process for all ordinance which was passed in San Francisco, October of 2013, required the sheriff, required the jail to let him go, unless there was an order of removal by a judge or an active warrant. Both were not present here, they had to follow the law and let him go.

KELLY: And the thing is Brian, according to the president, if -- you can't -- even if it is a stupid ordinance, even if the ordinance is flies in the face of federal law, it doesn't get you past the immunity. It doesn't allow you to pierce the immunity that the city has for its laws.

BRIAN CLAYPOOL, CIVIL RIGHTS ATTORNEY: Megyn, that may be true, but the problem I have with this case, though, is that there was a phone call from customs in immigration to the police department saying, this guy Sanchez is a threat. When he is out, you -- give us a phone call. And I have a real problem with how that does not create a duty owed by the police department at that time, to simply make a phone call. It takes 10 seconds. You and I can talk all day about the legal ramifications. Does the immunity apply here or not, but what about the moral obligation of the police department? And more important in that Megyn, what about this through.

KELLY: But doesn't that go to the point that I was trying to make which is, if you object to the sanctuary city policy and so many Americans do, although the people of San Francisco may not, take it up at the ballot box?

CLAYPOOL: If it here -- but, Megyn, I think by filing a lawsuit, though, you can get to the bottom of what really happened here because I really think there is something deeper than just, oh, well, the ordinance is in conflict with the federal law. I think what is happening here is -- and it's a tough night to be talking about being critical of law enforcement. But I think what happens here is you have kind of arrogance with local law enforcement and the feds. The locals saying, hey, it's not our job. We want to wipe our hands clean. We can't honor what you are asking us. In fact, the chief of police gave a directive, a directive to law enforcement in San Francisco, to not honor a request by the customs and immigration.

KELLY: But this is the same thing.


KELLY: Mark, that's what happened in the case of Danielle Bologna too. Also, a very sympathetic plaintiff, and her case was thrown out by the lower court and even in unanimous decision by the Court of Appeals.

EIGLARSH: Right. And I agree with Brian. He makes a compelling argument on a moral level, but they have got to follow the law or they will be sued. A request from ICE's is not the same as what is required.


EIGLARSH: ICE, excuse me. Look how I juxtaposed. Right, very different. But morally, again, yes they could have and would have wanted to maybe hold them but the law doesn't require unless they have those specific things required.

KELLY: And the reason is they don't want cities, like San Francisco having to pay out large judgments by person after person.


KELLY: This is a sympathetic victim, but who -- what about the next one? Who is just trying to make a buck off of the law that they didn't like the San Francisco passed.

EIGLARSH: That did.

KELLY: Because the people of San Francisco wind up having to pay. They pay the litigation fees and they pay the verdicts. And the city has made a decision as a blanket matter, to protect themselves from that, which protects the people from that, but these are the same people who support this policy. So it will be interesting to see the Steinle case play out. They also have another lawsuit against BLM and ICE, which may raise some different issues, great to see you both.

EIGLARSH: Great to see you, Megyn. Thanks.

KELLY: It got ugly today in Kentucky, after a county clerk refused to issue a gay marriage license, next.


KELLY: Developing tonight, a Kentucky county clerk has been ordered to face a federal judge, after refusing to issue marriage licenses to same-sex couples in defiance of the Supreme Court ruling, earlier this summer. Trace Gallagher is live in our west coast newsroom with the story. Trace?

TRACE GALLAGHER, LOS ANGELES: Megyn, in Rowan County Kentucky, they lined up on the courthouse steps on one side, supporters of County Clerk Kim Davis, chanting stand your ground. On the other side opponents shouting, do your job. But gay and lesbian couples looking for a marriage license were again turned away, watch.


CLERK: We are not issuing licenses today.

PROTESTER: Based on what?

CLERK: I would ask you all go ahead.

PROTESTER: Why are you not issuing marriage licenses today?

CLERK: Because I'm not.


PROTESTER: Under whose authority are you not issuing licenses?

CLERK: Under God's authority.


GALLAGHER: Despite the Supreme Court legalizing gay marriage and both a federal and Appeals Court, ordering Kim Davis to issue marriage licenses to gay couples, Davis won't budge, calling it a heaven or hell decision, quoting, "I have no animosity toward anyone and harbor no ill will. To me, this is never been a gay or lesbian issue, it's about marriage and God's word. It is a matter of religious liberty, which is protected under the First Amendment." The liberty council which supports religious freedom is defending Kim Davis saying, "She is fine with Rowan County issuing gay marriage licenses, as long as she doesn't have to endorse them with her signature." Listen.


MAT STAVER, LIBERTY COUNSEL: Does Kim Davis, have the right to have her conviction in conscious accommodated? And the answer to that is yes. And there is alternative ways that that are reasonable, and that's we are out to pursue.


GALLAGHER: Davis won't resign, can't be fired and could only be impeached during next year legislative sessions. She's been sued by two gay couples and two straight couples. Davis and all the clerks in her office have been ordered to face a federal judge on Thursday, Megyn.

KELLY: We'll continue to follow it. Trace, thank you. We will be right back.


KELLY: Be sure to tune in tomorrow night because Brit Hume is back from vacation, he's right on "The Kelly File." Also Marthur, you know Mark and Arthur? Back together again at last. It's September, so people are actually getting back to work. And then Labor Day will hit and we will all take four days off. At least I will.


KELLY: Thanks for watching, everybody. This is "The Kelly File." See you tomorrow at 9:00.

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