Should civil liberties usurp terror investigations?; What to expect from final GOP debate of 2015

Feds do not routinely screen visa applicants' social media accounts; Brad Thor lays out his concerns about the vetting process on 'The Kelly File'


This is a rush transcript from "The Kelly File," December 14, 2015. This copy may not be in its final form and may be updated.

MEGYN KELLY, HOST: Breaking tonight. New concerns that the American people are being endangered, thanks to an administration hell-bent on not offending anyone. Welcome to "The Kelly File," everyone.  I'm Megyn Kelly.

Tonight, we learned that the Obama administration has been deliberately ignoring evidence related to whether those seeking entry into this country mean to do Americans harm out of a desire to be politically correct. As a result, immigrants like the female terrorist in San Bernardino whose online postings made very clear she was an Islamic extremists, have been getting a free pass into the U.S., despite social media postings that make very clear they are potential killers.

Today, President Obama went to the Pentagon to discuss efforts to defeat ISIS. Afterwards, he spoke but offered few if he knew details. One thing he notably did not discuss was the news reports that his administration has been deliberately ignoring the social media accounts of foreigners who apply for an entry visa into the United States, deliberately I say. Something American employers do with job applicants on a regular basis. But those charged with protecting us apparently decided this is not a good idea. The Homeland Security Department was reportedly worried about the optics of doing so.

Fearing it might look bad to check-up on a foreigners' public profile that it might anger some civil rights group and create bad pr. This raises serious questions, considering that the female terrorist who murdered 14 Americans this month, made her own radical views very clear on line. In fairness to the administration, we have learned that she posted those under a pseudonym and she kept her pages private. They were not available for public consumption. But how many others have slipped through the tracks, whose online behavior might have kept them out of this country if only we had bothered to have look.

Chief Intelligence Correspondent Catherine Herridge reports tonight from Washington. Catherine.

CATHERINE HERRIDGE, FOX NEWS CHIEF INTELLIGENCE CORRESPONDENT:  Megyn, a homeland security official telling FOX News that Tashfeen Malik also used privacy settings to block content and the official claimed there was no written policy against social media screening on visa applications. But it was only used when negative information came up.


JOHN KIRBY, STATE DEPARTMENT SPOKESPERSON: It is routine for our consular officers to be able to examine social media presence when they feel it can round out and put a little bit more flesh on the bone of the information.

JOSH EARNEST, WHITE HOUSE PRESS SECRETARY: I think that the Department of Homeland Security has pushed back against those --  


HERRIDGE: Malik exchanged messages about martyrdom and jihad with her future American husband and conspirator Syed Farook even before entering the United States last year. As an internal debate rage within the Homeland Security Department. With ABC News first to report it came to a head in the spring of 2014, when immigration and costumes officials Press Secretary Johnson's deputies to allow social media screening on a regular basis. Contacted by FOX News, Johnson's spokesperson said, the screening strategy has since expanded. Quote, "Over the last year the Department initiated three pilot programs to specifically incorporate appropriate social media review into its vetting of applicants." As a former member of the Homeland Security Advisory Council said, it only makes sense to use it and government officials should stop throwing up investigative blocks.


FRANK CILLUFFO, GEORGE WASHINGTON UNIVERSITY: We have the ability and capability to monitor social media to one extent or another. I mean, at the end of the day, it's sort of like in the '80s, it would be saying basically the government can't watch TV, because that's the equivalent of social media, for is, and how it spreads its narrative and spread its message.


HERRIDGE: Separately later this week, Secretary Johnson is expected to roll out an updated advisory system that reflects the high risk environment where the threats are not specific like we saw in California and Paris -- Megyn.

KELLY: Catherine, thank you.

Joining me now with more, Brad Thor, a former member of the Homeland Security Department's Analytic Red Cell Unit. And also bestselling author of the book "Code of Conduct." Brad, thank you for being here. So they have the ability to do it. They choose not to because they don't want to offend anybody.

BRAD THOR, FORMER MEMBER, HOMELAND SECURITY DEPARTMENT, ANALYTIC RED CELL UNIT: You know, there's no constitutional right to a visa, and there are no civil liberty issues with this. When you post on social media, it's public, even if you do throw up these privacy walls like this person was doing. I mean, Megyn, it is easier for a terrorist to get a visa than for a group with Tea Party or patriot in their name to get a 501-3-C classification from the IRS. This is ridiculous.

KELLY: They're worried, they say about two things, three things, bad PR. Civil rights organizations, and civil liberties organizations, giving them pushback. The question is, are they worried about Americans who are going to get killed by radical extremists who want to murder us?

THOR: Bingo. That's the issue here. We have a president, not a publicist, and he needs to act like one. And as far as civil liberty groups or civil rights groups, they can all jump right in a lake because they do not have any leg to stand on here. If you are a foreign national applying for a visa to come to this country, you are not afforded the protections of civil liberties and civil rights protections that American citizens are --

KELLY: You're asking for a privilege. You're asking for a special privilege.

THOR: You don't get it. And by the way, this is a great tool. And I understand that Catherine is kind of moving the story forward with this issue about, well, it wasn't a written policy. Yet they were fighting about it internally at the Department of Homeland Security. This is shocking. It is shocking that you would not go to social media, particularly when DHS has been rabid since 2011 about looking for any anti- government talk on social media by Americans. This is a big issue, 2009.

KELLY: A good point.

THOR: When Janet Napolitano headed the DHS, she put out a white paper saying that we had to watch out for veterans, people would -- flags in the back of their car, pro-lifers, pro-gun people as being potential right wing extremists and terrorists.

KELLY: Uh-hm. You think they're looking at their social media?

THOR: All the time. When the Obama administration wants to look for stuff, they find it, they even spin it. So this is a bunch of malarkey.  And why is he so much more concerned over people applying for visas than protecting American citizens?

KELLY: Okay. But here's what they -- their other defense is the numbers are too big. Last year we had 10 million come into the country on visas, some 40,000 of those who are on this K-1 marriage visas. So they don't have the time, they don't have the manpower, they don't have the money to have somebody sitting there doing the Facebook search, private, how do I get around that and so on?

THOR: You've got two choices. Number one, if you're dealing with people in a specific age group, let's say, 18 to 34, they all have social media accounts. Part of getting your visa should be opening up those accounts, turning over your passwords. Employers ask people for this a lot. And we've got over a 30 employers in this country that look at social media.

KELLY: Uh-hm.

THOR: And the other thing is, if we have that many people applying for visas that we can't check them, whoa, let's dial it down and let's not process so many darn visas. This is what Trump was talking about. Let's put a pause until we can work out these problems. Because protecting Americans is more important than giving visas to foreign nationals.

KELLY: You know what else you can do, you could strike a deal. You can get Facebook to change its policies such that when you sign up for Facebook account, you check a box saying, if I decide to immigrate into the United States, I agree to make all of my private profiles public and then subject to review. And then the government doesn't have to do anything.  You apply, you've already agreed to make it public. They can take a look at it. It's done. It's easy. And if you don't check the box, you've got a problem.

THOR: There's just one problem with that idea, Megyn, it makes too much sense. You'll never get it passed this administration.

KELLY: Brad, thank you.

THOR: You're welcome.

KELLY: And speaking of those civil rights organizations, the biggest Muslim civil rights organization here in America is CAIR, the Council for American Islamic Relations and they are in the news right now. Normally what they do is press authorities for, well, what they're doing in this particular case is they're pressing for custody of that woman, that female terrorist's six-month-old baby. So, why is CAIR so interested in where the female terrorist's six-month-old baby is going?

Andy McCarthy knows. He's a former federal prosecutor and National Review contributing editor. Andy, good to see you. So CAIR was very quick to come to the microphones and very quick to make a legal stink about who's going to get the custody of that terrorist couple's six-month-old. Why?

ANDY MCCARTHY, FORMER FEDERAL PROSECUTOR: Because CAIR is a Sharia promotion organization, masquerading as a civil rights organization. And it's black letter Sharia law that Muslim children can only be placed in the custody of Muslim parents.

KELLY: And that's what they're pushing for, on the record.


KELLY: They're saying this baby needs to go to Muslim parents.

MCCARTHY: Right. Now, I brought along my handy dandy reliance of the traveler, which is a classic manual of Sharia Law, that's actually been endorsed by very respected worldwide Muslim scholars and it says very clearly that if a child is a Muslim, it is a necessary condition that the person with custody be a Muslim. And it goes on to explain that the reason for that is, being a parent is a position of authority. And under Sharia Law, a Muslim cannot be placed in the authority of somebody who is a non- Muslim. It's actually a theme that runs through all of Sharia law.

KELLY: And so, what does this tell us about CAIR, which was an unindicted co-conspirator in a terror trial which is been labeled at terrorist group by the UAE.

MCCARTHY: Right. Well, CAIR sprung from the Muslim Brotherhood and the Brotherhood's Palestinian organization Hamas in the mid-1990s, around 1993. And its purpose is to be an apologist for Islamic Supremacism.

KELLY: So it's not a civil rights organization?

MCCARTHY: Well, it styles itself as one because that's very appealing in the west.

KELLY: Because they're smart.

MCCARTHY: And it worked. So the media refers to them as a civil rights organization. They almost never talk about their checkered history.

KELLY: Uh-hm. And they do put pressure. They put pressure on the administration. They put pressure, they try on the media. And we're hearing, I mean, the two stories may not be unconnected, because the administration is lamenting about the pressure they're going to get from civil rights organizations if they start checking the social media of would-be immigrants.

MCCARTHY: Yes. Can you imagine that now? The Department of Homeland Security which was set up to enhance Homeland Security after 9/11, right?  They won't check the social media of nationals as Brad said outside the United States who don't have civil rights under the American constitution.

KELLY: Including nationals from Pakistan --

MCCARTHY: Right. From Jihadists --

KELLY: -- who are attending radical mosques, radical schools, who have radical ties in their family --


KELLY: Even they will not be checked through social media.

MCCARTHY: Right. But this policy is totally consistent with the official Obama counterterrorism policy, which they call countering violent extremism. There's actually online, there are instructions to people who apply -- government officials who apply this strategy, and what they're told is not to associate conduct with either ideology or words, that we should focus solely on --

KELLY: Online threats by somebody who is a known Muslim with extremist views, you don't look at that? You have to look at conduct.  Have they bombed anything, have they attempted anything?

MCCARTHY: Right. And this is why Megyn, they purged the Islamic experts from, you know, law enforcement, from the military, from the intelligence --

KELLY: We had a guy on our show last week who got kicked out and he started getting investigated after he started circling in on certain groups. Andy, good to see you.

MCCARTHY: Good to see you.

KELLY: Again, to underscore, they now say that they've changed the policy, they are looking at some social media, but how much? And in what cases and what have they done to satisfy themselves that the next Tashfeen Malik is going to get caught and we're going to be able to see what she's doing online clearing her intention to kill Americans before she gets here?

Tonight, in different news, there are new developments in the escalating fight now between Donald Trump and Senator Ted Cruz. You remember we had Ted Cruz on the program on Thursday. We asked them about this. There's been quite an update in the story since then. Did the battle just cause Donald Trump to make the first huge mistake of his campaign? Yes, I did say the first. What he said that has some of the most powerful voices in conservative talk radio, including Limbaugh and Levin taking sides tonight. James Rosen reports and -- Guy Benson way in on the fallout.

And we are less than 24 hours from the last GOP debate of the year.  Chris Stirewalt and Howie Kurtz are here to handicap what each candidate must do with time ticking before the Iowa caucuses.

Plus, the city of Baltimore on edge tonight as jury deliberations have now begun in the first trial related to the death of Freddie Gray. Judge Andrew Napolitano is here on whether he thinks this first officer to go will be convicted or set free.


MARILYN MOSBY, BALTIMORE STATE'S ATTORNEY: I heard your call for no justice or no peace. Your peace is sincerely needed as I work to deliver justice on behalf of this young man.



KELLY: Breaking tonight, with the fifth 2016 GOP primary debate less than 24 hours away, a real war of words is heating up between rival Republican frontrunners Donald Trump and Senator Ted Cruz. As a new audiotape is leaked to Senator Cruz saying, he does not think Trump will be the party's nominee. The businessman had this to say on "Fox News Sunday" in response.


DONALD TRUMP, R-PRESIDENTIAL CANDIDATE: I don't think he's qualified to be president.


TRUMP: Because I don't think he has the right temperament. I don't think he's got the right judgment.

WALLACE: What's wrong with his temperament?

TRUMP: You look at the way he's dealt with the Senate where he goes in there like a, you know, frankly like a little bit of a maniac. He's never going to get things done that way.


KELLY: FOX News Chief Washington correspondent James Rosen is live in D.C. tonight with more. James?

JAMES ROSEN, FOX NEWS CHIEF WASHINGTON CORRESPONDENT: Megyn, good evening. Donald Trump's opening salvos at Ted Cruz have so far failed to draw the Texas senator into the kind of verbal volleying at which the New York businessman excels. Accordingly, in response to that maniac comment, Cruz tweeted, "In honor of my friend Donald Trump and good-hearted maniacs everywhere," then linked to the video for the song Maniac from the 1983 Leg Warners (ph) and Rick Switzer's (ph) classic Flashdance.

For months now, Cruz mostly stood alone in the GOP field and declining to criticize Trump during any number of controversies. Instead unfailingly complimenting the established front-runner for bringing attention to issues like immigration. More recently however, as Cruz himself has bolted to be leading some polls, he has privately questioned whether Trump possesses the judgment to have his finger on the nuclear button. Yet it is Trump's criticism of Cruz that is stirring discontent amongst conservative radio tightens tonight.

Mark Levin calling Trump foolish and asking if he considers everyone who supported Cruz in his battles with the GOP Congressional leadership to be maniacs while Rush Limbaugh, who has previously praised Trump's courage and guts, wasn't seeing either of those qualities in this latest dust-up.


MARK LEVIN, SYNDICATED RADIO HOST: A handful of guys, Cruz, Lee, Rand Paul, a handful of guys who stand up to them. Oh, they're not getting along. Exactly. We're sick of these guys getting along. And you, of all people, should get it! But instead you went for the cheap shot. And yet Trump takes the side of McConnell. He takes the side of the establishment.  Very, very foolish. Really dumb.

RUSH LIMBAUGH, SYNDICATED RADIO HOST: For any of you who are holding out hope that Trump is a genuine conservative, genuine conservative even in the Republican field would not go after Cruz this way. So that just raises a red flag for me. Maybe somewhat serious.


ROSEN: Our own Brit Hume, however, suggested tonight that the heightened scrutiny that Ted Cruz will now experience as a leader of the pack will not help him.


UNIDENTIFIED MALE: Iowa voters will have the holidays and all of January to ponder why Cruz is so disliked by his Senate colleagues. The question then will be this -- will they still feel the same way about him when they find out?


ROSEN: The Iowa caucuses are just seven weeks away, Megyn.

KELLY: James, great to see you.

ROSEN: Thank you.

KELLY: Joining me now with more, Steve Hayes, senior writer at the Weekly Standard and a FOX News contributor and Guy Benson, co-author of "End of Discussion" and a FOX News contributor.

Great to see you both. So, Steve, the gloves are off, they are. And it takes a lot to get the ire of Levin and Limbaugh but Trump has managed it here.

STEVE HAYES, SENIOR WRITER, THE WEEKLY STANDARD: Yes. I think this is potentially a very interesting term. I mean, you wondered all along when people like Mark Levin and Rush Limbaugh would turn on Donald Trump.  I mean, Donald Trump has not -- as we've discussed before has not been a lifelong conservatives. Certainly not a part of a conservative movement.  And he's made a series of errors and gaffes and offensive statements, misstatements, that haven't won the ire of both of Levin and Limbaugh. But this, the attack on Ted Cruz, seems to have done that. And I think that could really mark a turning point. If Levin and Limbaugh and other conservative talk radio types turn on Donald Trump right now in favor of Ted Cruz, because they think Trump has gone too far, that really could signal to others who have supported Donald Trump that this is sort of the end of it. Now it's time to get behind a real conservative as Republicans make this push for the White House.

KELLY: Because this happens, guy, as Cruz is surging. His support for Cruz under the Real Clear Politics, Iowa average is up by 13.5 points in the last month. Support for him in the latest poll in Des Moines Register poll is up 21 points since mid-October. Trump's support according to the Des Moines Register poll has peaked. And so, this happening at an important time in the race.

GUY BENSON, CO-AUTHOR, "END OF DISCUSSION": Yes. Well, I mean, this is what Donald Trump does. When he feels threatened by someone, he goes on the attack. And what's been interesting to see is how he's gone after Ted Cruz. First it was on temperament, calling Cruz a maniac, which is so very special and rich. But on policy, Trump rarely gets into policy, especially when it comes to these salvos. But he tried to go after Cruz on ethanol subsidies criticizing Cruz for a very principled conservative stand that Cruz is taken. And this goes to a pattern of behavior from Donald Trump that we see. He attacks conservatives from the Left routinely. He did it to Scott Walker when Walker was still in the race using Left wing talking points on the budget. Just this week he came after and joined the Left wing pile-on on Justice Scalia at the Supreme Court.


Of course, this should raise red flags for someone like Rush Limbaugh.

KELLY: Uh-hm. And the thing is, see, all along we've been watching the bromance between Trump and Cruz, thinking, okay, that's smart of Cruz.  You know, you don't want Donald Trump to come after you if you're one of these Republican candidates because he's vicious and he's relentless.  Right? But there was risk for Donald Trump too as it turns out.

HAYES: Yes. I think there's a huge risk for Donald Trump. Look, the conventional wisdom in Washington right now is, nobody takes on Donald Trump and emerges unscathed. And people point to Lindsey Graham and Rand Paul and others. Those are candidates who are at three and four or one and two percent in the polls. We haven't seen somebody really frontally challenge Donald Trump in the way that I think is open for Ted Cruz to do from the right, as guy suggests.

We haven't seen that yet. So this could be new. It would be most interesting to see tomorrow night when Donald Trump attacks Ted Cruz which he's virtually certain to do, how does Ted Cruz respond? Does he try to stay above the fray? Does he try to be above it all? Sort of laugh off Donald Trump? Or does he engage? And I think there are risks either way.  If he doesn't engage, it looks odd, because he's attacked -- Ted Cruz is attacking Marco Rubio. If he does engage, then that sort of -- then there's the end of their nonaggression pack.

KELLY: The end of the bromance. Great to see you guys.

HAYES: Thanks, Megyn.

BENSON: Thanks, Megyn.

KELLY: Well, less than 24 hours now from this critical prime time GOP debate and we are getting some stunning new polls out tonight. Chris Stirewalt and Howie Kurtz breakdown what's going to happen between Trump and Cruz tomorrow, what the new polls mean and what fireworks we can expect on the main stage tomorrow night?


KELLY: Breaking tonight, under 24 hours until the next and final republican primary debate of 2015. And new polls show that Senator Ted Cruz is surging in Iowa. The Fox News poll where Cruz now has the lead, shows him outpacing Trump by two points. The Des Moines Register has Cruz up over Trump by ten points. Trump getting good news in the latest national poll however and this one from Monmouth. He's ahead of the pack by 15 points. The latest results set the stage for a make it or break it night tomorrow night in Vegas.

Chris Stirewalt is our FOX News digital politics editor and Howie Kurtz is the host of "MEDIA BUZZ" right here on FOX. So, Chris, put those in perspective for us. Ahead of Trump by ten points in Iowa, but wow, what a poll for Donald Trump by Monmouth.

CHRIS STIREWALT, FOX NEWS DIGITAL POLITICS EDITOR: Well, look, you can preach it round or you can preach it flat, depending on which candidate you're boosting for. But here's the thing that all the polls agree on.  Ted Cruz is doing that thing. And that's the thing that we have watched for a long time and predicted for a long time would come for him, which is a time when doctrinal conservatives, people who are into conservative ideology more than they are candidate personality, are going to gravitate to Ted Cruz. He's built for this space, and as you heard from Rush Limbaugh, as you heard from others, they want Ted Cruz protected. Because if Donald Trump is not going to be able to go the distance, if he blows up Ted Cruz tomorrow night, if he comes out with hatchets swinging at Ted Cruz and bad things happen to the arguably most conservative, viable contender in this race, conservatives will be out of luck.

KELLY: The thing is, Howie, it raises the stakes in a way we haven't seen before for Trump. Who is, he always goes after people who are threatening him, and he doesn't back down, and yet you've got Limbaugh and Levin saying, don't do this, what does Trump do?

HOWIE KURTZ, HOST, "MEDIA BUZZ": Well, a lot of conservative pundits don't like Donald Trump and he's managed to survive that. But look --

KELLY: But not those guys. Those guys have been defending him.

KURTZ: No, those guys have been defending him on talk radio. If Ted Cruz finds himself under attack by Donald Trump, it will be a real dilemma for him, because he has been very disciplined in hugging the strategy of not wanting to alienate Trump's supporters.

KELLY: No, it won't. I don't think you're right about that. Ted Cruz is going to do what he's been doing.

KURTZ: Okay.

KELLY: Bear hug, laugh, the question is, what does Trump? What does Trump do with these clear lines in the sand being drawn by Limbaugh and Levin?

KURTZ: I don't think -- I would put my chips in the Vegas casino on Donald Trump not calling Ted Cruz a bit of a maniac. He tends to be on better behavior at these big televised debates. He tends not to bunk the other candidates on -- when he's on the stage with around people. Now, I know Marco Rubio will go after Ted Cruz. We've seen this before. The two Cuban-American senators, both very good debaters. And Ted Cruz will go after Marco Rubio. But I think Trump may not attempt to deliver the knockout blow.

KELLY: That is true, he holds back more in the debates and then he gets on Twitter and something else happened.

KURTZ: Right. Yes.

KELLY: Chris, let's talk about -- there are many other candidates in this race.


KELLY: What are the stakes for them?

STIREWALT: I thought there is only one.

KELLY: Does anybody rise above? I mean, is it all the Cruz-Trump show tomorrow night?

STIREWALT: Well, the closer you get to the end for some of these fellows, the sadder and potentially more desperate it becomes for them.  CNN broke their own rules to add another podium so that Rand Paul would be on the stage. And so will the people who are teetering near oblivion, will they act out in an effort to get attention? That's what has happened in the past. But as Jeb Bush learned, when he tried to take out Marco Rubio, it took out his own self, swinging too hard and trying with these stilted takedown lines, can sometimes lead you right to the candidate emergency room.

KELLY: Uh-hm.

STIREWALT: So, if you're a candidate who is thinking that you're going to have a, quote, "breakout night," we're going to breakout and it's going to be fantastic, it's probably not a good time.

KELLY: How about Ben Carson, Howie?

KURTZ: Well, Ben Carson is in danger of slipping into the second tier. And given his soft spoken demeanor in these debates and the questions about his depth of knowledge on foreign policy, I don't see him doing anything dramatic to turn around at least that perception. Now, Chris Christie back on the main stage in Vegas. And we've seen what he can do in a debate. Of course, he's way down the national polls. To me, the...


KELLY: I think he's number two in New Hampshire now with a key endorsement.

KURTZ: And a good performance there will certainly not hurt the New Jersey Governor in New Hampshire. That's a state built for him. But nobody is talking about Jeb. It's remarkable how far we've come in the past four debates, how far Jeb has fallen and there's not any great expectation going on. I think he has a hard time, as we have seen painfully, making his presence forcefully known.

KELLY: We will be here with these guys for you tomorrow night, with special programming after the debate. Way to get in the spirit, Stirewalt.  You'll get your only fair and balanced coverage here on FNC.

For the first time, we are hearing directly from Sergeant Bowe Bergdahl about his decision to leave his fellow troops in Afghanistan, putting himself and them in grave danger. Why he says he did it. You'll hear from him directly.

Plus, Pete Hegseth is here to respond to the army's decision today to pursue court-martial proceedings against Bergdahl.

Up next, the city of Baltimore braces for the verdict in the trial of the first of the Baltimore six being tried in the death of Freddie Gray.  The jury has the case. Judge Andrew Napolitano breaks down what happened in court today, where the case stood as it went to the jury and what we can expect in the days and hours ahead out of Baltimore.


KELLY: Breaking tonight, day 2 of jury deliberations is set to resume in 12 hours in the first trial of the Baltimore six, charged in the death of Freddie Gray. Fox News Senior Judicial Analyst Judge Andrew Napolitano is here on what the verdict could possibly be. But first, Trace Gallagher is live in our west coast news room with a closer look at what led to this stay, Trace?

TRACE GALLAGHER, LOS ANGELES: Megyn, the judge instructed the jury if they find William Porter guilty of the most serious charge, involuntary manslaughter, it cannot be because of an honest mistake, it must be with "evil motive, bad faith and not honestly." Late today, the jury asked for a better definition of those terms and the judge refused. Throughout the trial, the prosecution maintained that Officer Porter criminally neglected his duty by failing to put a seat belt on Freddie Gray and failing to call for help when he knew Gray was seriously injured. Among their 16 witnesses, prosecutors called the police academy instructor who testified that prisoners who should be secured in vehicles and given medical treatment when they need it.

But that same instructor undermined the prosecution when he acknowledged that violations of general orders are not typically the basis for criminal charges, and that the driver of the vehicle, not Officer Porter, would be considered to have primary custody of Freddie Gray. One of the key points in the trial is exactly when Freddie Gray suffered his severe injury. One medical examiner testified it happened between the second and fourth stops, except at stop four, Freddie Gray spoke and when Officer Porter sat him up on the bench. His injuries were catastrophic and the medical examiner said he would be unable to speak. The defense says it happened after the fourth stop. There was another prisoner in there.  Officer Porter said he thought Freddie Gray was faking his injury because he had jail-itis.

But the lead detective testified that Officer Porter told her, Freddie Gray couldn't breathe during the fourth stop. Porter maintains he never said that and there's no record of him saying that during his recorded interviews. The lead detective stands by her statement but does concede that she interviewed Officer William Porter as a witness, not a suspect, Megyn.

KELLY: Trace, thank you.

Joining me now with more, Judge Andrew Napolitano, wow, so that -- it comes down in large part, if the jury believes that detective who said this officer told her in this informal phone conversation that there's no official record of, he told me he couldn't breathe, if the jury believes that, it's not good for Officer Porter.

ANDREW NAPOLITANO, FOX NEWS SENIOR JUDICIAL ANALYST: Correct. But this is a highly unusual conversation, one that does not ordinarily occur in a criminal prosecution between an agent of the government and the defendant, even though they were colleagues and they knew each other.

KELLY: And he says she misunderstood me. That's not the case. So the jury, they have to figure out who they believe. Even if they believe her, he's arguing I thought the guy had a case of jail-itis, that what he was saying wasn't true.

NAPOLITANO: Right. If all things are equal, if the government's case is as strong as the defense's credibility, the defendant as a matter of law must be found not guilty. The government has the burden of proving all elements of the crime beyond a reasonable doubt. And in my view, the judge did a good job explaining that to the jury. When the jury asked for some clarified definitions, I am surprised he refused to do it.


KELLY: They wanted legal definitions of evil motive, bad faith, and not honestly. So the judge said we already gave you all the information we can. But what does that tell you about what the jury is thinking tonight?

NAPOLITANO: They are zeroing in on the core of the case, did Freddie Gray die by accident or did he die by gross indifference, which is really what the government has to prove.

KELLY: The state of mind of Officer Porter they're trying to get to.

NAPOLITANO: Was his stand of mind -- I don't care what happens to you, I don't believe you, or was it, this guy is in no worse position than anybody else?

KELLY: How is the prosecution going to get to that, to this evil motive, bad faith, and dishonest presentation when it's not even clear that this guy was injured at the time Officer Porter took a look at him on the fourth stop?

NAPOLITANO: In my view, the defense made two mistakes. They put him on the witness stand and the prosecutor did a bang-up job of cross examining him. Then they did something that you and I know first year law students are told not to do. They promised in the opening statement to the jury that they would hear from the other person, the mysterious other person in the van who would say Freddie was fine. Freddie wasn't bounced around. Freddie was talking to me the whole time. They didn't put him on the stand. I suspect he changed his mind. But yet, that was left hanging, because the jury was probably expecting him.

All in all, they have to decide this on the basis of what they heard in the courtroom. It seems the evidence is equivocal, meaning equal in balance on both sides, indicating not guilty.

KELLY: If it's equal, the prosecution does not get a conviction. But we don't have the final say, the jurors do. Whatever they say, you have to support it, Judge, great to see you.


KELLY: Breaking tonight, the media fact checkers have compiled the biggest lies of 2015. And one of them is something we called out long ago and boy, did we stand alone here at Fox News in doing so. What it is and why it puts Hillary Clinton's campaign in an interesting position tonight.

Plus, Sergeant Bowe Bergdahl was held by the Taliban for five years after he left his base willingly in Afghanistan. His fellow soldiers told us he deserted. And now the U.S. Army has made a major announcement about his future and it contradicts what everyone thought they were going to do.  Pete Hegseth is here next. We have an update on Bowe Bergdahl.


KELLY: That was U.S. Army Sergeant Bowe Bergdahl speaking out for the first time about his decision to leave his fellow soldiers in Afghanistan, a decision that ultimately landed him in the hands of the Taliban. Today, the U.S. Army shocked many by announcing that Bergdahl will face a general court martial on charges of desertion and endangering troops, a rejection of the recommendation from an earlier hearing officer in the case.  Bergdahl was famously traded by the Obama administration for five Gitmo detainees. At the time, the administration suggested he had served with honor and distinction. And President Obama personally appeared with Bergdahl's parents in the Rose Garden to celebrate his release. Pete Hegseth is a Fox News Contributor and an Iraq and Afghanistan War Veteran.  He is not the CEO of Concerned Veterans for America.

It's a shocking result, because the administration held him up as someone who served with honor and distinction, the President appearing with the parents of what is now a deserter who endangered our troops in the Rose Garden, your take on it.

PETE HEGSETH, FOX NEWS CONTRIBUTOR: That's right. Thankfully, honor and distinction still live in the United States Army where they're willing to overrule the original recommendation, to overrule the political weight of the White House that doesn't want him to be seen as a deserter.  Instead, the commanding general made the call to say, we will try him by general court martial for deserting his fellow troops, which he clearly did, and you have segments of his platoon that say in the very least he deserted, and also misbehaving before the enemy, which is effectively aiding and abetting the enemy, which he will get a life sentence for if found guilty. I have to give kudos to the general and the army for overcoming the political pressure and say honor matters.

KELLY: If they had done what that preliminary officer was recommending, he would be facing up to a year in jail. Now he's facing life in prison. You mentioned the interview we had with the platoon, one of the most powerful segments we've done since this show launched, and I'll never forget one of the platoon members saying, I don't know how he felt about us, but we would have died for him, all of us would have died for him and he walked away. There was real anger at what he had done and how it was being portrayed.

HEGSETH: Megyn, six men died looking for him. He put the lives of thousands of Americans at risk because of what he did. And when you look at the scope and the size and the scale of all that we're facing in Afghanistan, to then say we're going to have to search for someone who is clearly deserted, clearly made the decision that I am going to take my own course of action, he said 20 minutes in, I knew it was a mistake. Any infantrymen, 20 milliseconds into thinking about walking off your base without your weapon in the middle of the night into enemy territory will tell you, you're doing something wrong.

KELLY: Let me ask you, five years in Taliban custody, many will argue he's suffered enough. I heard that.

HEGSETH: No way. He gets what justice brings. He brought it on himself. Are we still a country of honor? Do we still believe in service?  Do we believe in real sacrifice? This guy endangered the lives of Americans, walked into the hands of the enemy. He's lucky if he's behind bars for the rest of his life, because there's a lot more that believe he deserves more.

KELLY: He'll have a defense attorney and have a chance to defend himself.

HEGSETH: He'll have a jury.

KELLY: It's not open and shut, but he will stand trial. Pete, thank you.

HEGSETH: Thank you, Megyn.

KELLY: Breaking tonight, hands up, don't shoot. After the death of Michael Brown in Ferguson, Missouri, it was the rallying cry for anti-cop protesters and for some media. Now it's been labeled one of the biggest lies of the year by the Washington Post. We investigate that, and the connection to Hillary Clinton, next.


KELLY: The Washington Post coming out with its top lies of the year today. And one of them was the fabrication started in Ferguson, Missouri, that 18-year-old Michael Brown was killed in cold blood by Officer Darren Wilson as Michael Brown was allegedly surrendering, begging for his life.  The Kelly File was among the first to report the serious flaws in this narrative and called out those who pushed the fable nine months ago. That whole hands up, don't shoot storyline which was perpetuated first and foremost by Dorian Johnson, who was the accomplice in the cigarillo theft was not supported by the evidence -- including the congressmen who were out there perpetuating the myth, the NFL players out there perpetuating the myth, shouldn't they all be as vocal about Officer Wilson's vindication as they were in their rush to condemn him unfairly before the facts were in?

But they were not. Even as the media now acknowledges that Officer Darren Wilson acted in self-defense -- by the way, he's out of a job and his life's been ruined. Michael Brown's mother appeared front and center at a Friday speech by Democratic frontrunner Hillary Clinton, really? Mark Hannah joins me now. He was an aide to the Obama 2008 campaign and he is now an Adjunct Professor of Media Studies at the New School, Mark, so let's start with Hillary Clinton. What's she doing appearing with the mother of a man who charged a police officer, tried to take his gun, tried to shoot the cop.


KELLY: And then died, unfortunately died, but it wasn't as a result of anything Officer Wilson started.

HANNAH: Well, this woman, for better or worse, serves as a symbol for not just democrats but for the whole country about a lot of racial divisiveness that exists.

KELLY: Why? Why?

HANNAH: Because her son, an unarmed black man, was one of many in the news unarmed black men to be killed by a police officer.

KELLY: But he was the one who caused the situation. He attacked a cop.

HANNAH: Right. And we don't know whether Darren Wilson acted too jittery or not.

KELLY: He was exonerated by the Department of Justice.

HANNAH: But the Department of Justice did not exonerate the entire police department was found as constitutional violations.

KELLY: So find another victim. Find another victim in Ferguson who is an actual victim.

HANNAH: What Hillary Clinton did two months ago she met in Chicago with the mother not just of Michael Brown but of 12-year-old Tamir Rice.

KELLY: That's fine. Why go with this particular mother in this particular case, which defies reality?

HANNAH: She was at a rally in St. Louis.

KELLY: No, this is not -- she met with her privately, and then brought her to a public event on two different occasions.

HANNAH: I am not a mother. I don't know the sort of horror, the shock that's going through Michael Brown's mother's mind and heart right now, but look, I know that she serves as a symbol for a lot of frustration.  If she wants, the mother of Michael Brown, to turn and find the silver ling in some sort of criminal justice reform, why disparage that?

KELLY: Because the question is whether that perpetuates the lie further, that sending the message to people that Michael Brown was the victim as opposed to the aggressor.

HANNAH: He could have been both.

KELLY: That we now know was not the case according to Eric Holder's DOJ. I got to be. We'll be right back.

HANNAH: Thanks, Megyn.


KELLY: Don't forget we're live at tomorrow night at midnight with full coverage of the GOP debate. Frank Luntz with his focus group, Brit Hume, Marc Thiessen, Chris Stirewalt, Dana Perino, we'll see you then.  Thanks for watching, everybody. I am Megyn Kelly. This is "The Kelly File."

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