Candidates square off in final GOP debate of 2015; Influential conservatives back Cruz

How the debate is shaping up to be a make or break night for some candidates; Insight on 'The Kelly File'


This is a rush transcript from "The Kelly File," December 15, 2015. This copy may not be in its final form and may be updated.

MEGYN KELLY, HOST: Breaking tonight for the first time since terrorists hit Paris and San Bernardino, the Republicans vying to be the next commander-in-chief square off in the final GOP debate of 2015.

Welcome to "The Kelly File," everyone. I'm Megyn Kelly. In recent weeks terrorism has become the issue for American voters. And National Security is certain to play a big role at tonight's debate. But tonight's contest also comes at an interesting time in this race as two candidates in particular appear to have taken control at the polls. Nationally, Donald Trump has opened up huge leads. According to the ABC News/The Washington Post poll, Mr. Trump is up 338 to 15 over his closest competitor Ted Cruz.  His lead is even larger when you look at Monmouth's polling. In that he is at 41 percent. His next closest competitor Senator Cruz is at 14 percent.

By the way, we showed this same poll to you last night with the graphic which correctly reflected trump's 27 point lead but we described it verbally as a 15 point lead. Our apologies for that error. So Trump continues to dominate nationally. But when you drill down to the first state that will actually vote, Iowa, it is a different story while Mr. Trump leads in Quinnipiac poll in Iowa by one percentage points. He finds himself trailing Senator Cruz in polling by Fox News and by the well- respected Des Moines Register. The Fox poll out of the Hawkeye State has Ted Cruz on top by two points. While Senator Cruz's lead is even larger in that Bloomberg Politics Des Moines Register poll, 31 to 21 percent over Donald Trump.

This battle at the top adds a new dynamic to this ways race. For months Cruz and Trump have been relatively friendly on the campaign trail.  But as the polls tighten that relationship appears to be growing a little bit more frosty with Cruz seeming to question Trump's judgment during a private fundraiser and Trump suggesting that Cruz is a maniac.

In moments, we will talk about the state of the race with Washington Times political columnist Charles Hurt and National Review editor Rich Lowry. But we begin with our chief political correspondent, campaign Carl Cameron reporting live from Las Vegas. Karl?

CARL CAMERON, FOX NEWS CORRESPONDENT: Hi, Megyn. And one of the great controversies that has come out of this ongoing debate among the candidates about terrorism and National Security is Donald Trump's comment that there should be a temporary ban on new Muslim immigrants and visitors to the United States for that there has been a tremendous amount of criticism. And there will continue to be from a lot of his rivals. As for Ted Cruz, Ted Cruz has been studious in trying not to criticize Donald Trump in public but you are right. He has raised questions behind closed doors about whether or not both Trump and Ben Carson luck the -- or have the necessary judgment to deal with the types of National Security issues that now face the world and the United States. Has caused a lot of friction between the two of them.

Now, there is a number of different dynamics here. Ted Cruz has also been almost in a constant bicker fest with Marco Rubio over their various different National Security votes as fellow members of the Republican majority of the U.S. Senate. Rubio has slipped a little bit behind Ted Cruz who as you point out continues to surge. This debate tonight is a huge opportunity for Cruz but he also faces tremendous tests as to whether or not he can take the heat from the incoming of an entire field. When you get past Marco Rubio, the other person to watch tonight, Chris Christie, the governor of New Jersey has been surging in New Hampshire in some polls he has now moved up to second place.

He is making the argument that real experience and steady judgment is necessary arguing that these outsiders just don't have it. We are now just a couple of weeks before the holidays. And the next debate of course isn't until the middle of January. That's a FOX Business debate and that will come two weeks before the Iowa caucuses. It's going to be bitter. Lots of fighting. Some voters are obviously going to be looking forward to the holidays just to get a break from some of the fighting that we're now seeing.

KELLY: Carl, why is everybody so in love with the Des Moines register and its polling? What's so great about their polling?

CAMERON: Well, a couple of things. They have been polling in Iowa for decades. And they have in the past been fairly accurate. The paper has a reputation for being somewhat liberal in Iowa. So, Republicans are quick to criticize it and Trump has argued that the Des Moines Registers has been unfair to him. Now, it is however the poll that shows that Ted Cruz has jumped out to 10 point lead in Iowa. So, it is fair to assume that Donald Trump is never going to like the results of their polls unless he is leading in them. But the Iowa caucuses are a quirky game, only 120,000 is the record turnout there. So the state's largest newspaper can have outsized influence.

KELLY: Carl, great to see you.

CAMERON: You bet, Megyn, thanks.

KELLY: Joining us now with more, Charles Hurt, Washington Times political columnist and Rich Lowry, National Review editor and FOX News contributor. Great to see you both.  


KELLY: So, Rich, the stakes tonight appear to be biggest for Ted Cruz and Marco Rubio who everyone is predicting may go at it. Trump may play as well. We don't know what he will do. But some people are describing this as a make or break night for Carson, for Jeb Bush, for Fiorina. Do you agree with that?

LOWRY: Yes. What Carson needs to show and I'm a fan of his, but he needs to show that he belongs on the big stage discussing national security and the conventional wisdom, you remember Megyn after the terrorist attacks, he's going to hurt the guys that have no political experience Trump and Carson. Well, it didn't hurt Trump at all. In fact, it helped him, but it has hurt Carson. And that's because on substantive issue after substantive issue. He hasn't seemed to know his own brief. So, the stakes are high for him tonight, no doubt about it.

KELLY: He all but admitted that in an interview with CNN earlier today. He said, he wants to show that he can hack it on this debate when it comes to national security tonight. Charlie, let me ask you about what everybody is wondering which is what is going to happen between Cruz and Trump. They played nice. You know, Cruz said something, you know, mildly critical of Trump behind closed doors. Trump came out and questioned whether he was really an evangelical. Trump came out and questioned his opposition to ethanol subsidies in Iowa. Trump came out and questioned all sorts of things about Ted Cruz calling him a maniac because he can't get along with the establishment. Which sent Limbaugh and Levine into, you know, shock saying that's just stupid. That's just a stupid attack against Ted Cruz. Your thoughts on how aggressive Trump goes against Cruz tonight.

CHARLES HURT, WASHINGTON TIMES POLITICAL COLUMNIST: I think, you know, as much as everybody would like to see a big smack down between the two of them. I think quite frankly, you know, the episode that you mentioned earlier where Ted Cruz made, you know, was recorded criticizing Donald Trump, Ted Cruz really would rather not have had that come out. And the reason I think is this. That Ted Cruz is trying to run as an outsider.  And it's very easy to run as an outsider. Remember as a senator to run as an outsider and get into a fight with, you know, Marco Rubio. But if you get into a fight trying to be the outsider with Donald Trump, who is the sort of ultimate outsider in all of this, both outsider of politics and goodness knows outsider of GOP politics because, you know, the establishment would do anything to make him go away.

Ted Cruz is going to have a hard time winning that fight with him.  And so, I think that Ted Cruz kind of -- he poked to the bear with those comments that were reported in the "New York Times." And I think he would kind of wish that they would all go away. I think that Ted Cruz will very much be focused on others tonight.

KELLY: Uh-hm.

HURT: And I honestly -- I don't even know if Donald Trump is going to try to mix it up that much with him. But I do think that you know, all those other episodes that you pointed out we're going to see a lot more of that sort of on the campaign trail and in some of Trump's rallies.

KELLY: Because the thing is, Rich, there is some risk, unlike the attacks he has made on others, there is some risk to Trump if he goes after Cruz hard with those same line of attacks. You lose Limbaugh and Levine, you know, it will hurt you if you are Donald Trump. It potentially that really could hurt him.

LOWRY: Yes. And it's been surprising the tact Trump has taken against Cruz. Because as Charlie is alluding to, if you are Donald Trump, the ultimate outsider and you want to take on a U.S. senator who is trying to tip toe by you in Iowa, you should attack him as a political insider.  Now, Cruz is kind of an outsider's insider because everyone in the Senate hates him. But compared to Trump, he is the ultimate political insider.  Instead Trump hit him on ethanol, subsidies and being a maniac and not getting along with people. And that's just not the way to go after Cruz.  And I agree with Charlie, I think the moderators will try to stoke this debate tonight. I'm not sure Trump engages. And even if Trump does engage, Cruz has every incentive to do what he has to this point.

KELLY: Cruz cannot alienate Trump's --

LOWRY: Exactly.

KELLY: He can't alienate those Trump supporters and yet he needs them if he wants to win Iowa, if he wants to win this race, he's going to have to get those Trump supporters on board the Cruz train.

LOWRY: Yes. He is trying to outmaneuver Trump. You've seen others try to frankly confront Trump and not having it worked. Cruz is trying to tip toe.

KELLY: Is it just me or that term, I don't like that term frontally confront. It takes me to places I don't want to picture. Charlie, let me ask you about Jeb Bush.

LOWRY: I would never make an appropriate reference like that, Megyn.

KELLY: Yes. I know. Right. I know. Never. What about Jeb Bush?  I mean, is he still relevant?

HURT: You know, to imagine where we were six months ago Megyn and to look at where we are now in terms of Jeb Bush who was the absolute, you know, the establishment nominee, he raised huge amounts of money. He still has huge amounts of money. There is still huge amounts of money in his Super PAC. It's absolutely astonishing. And honestly, I think that, you know, I mean, Donald Trump doesn't even really attack him anymore.


HURT: And that's the testament to how badly he has kind of beaten him down. And so I would say that he has not been very relevant for probably a month or so now. But, especially not so now. And it's -- I mean, it is a stark warning for Republicans. And the establishment when they think that they can sort of pick who they want to run the long race with, and voters just absolutely flatly reject it.

KELLY: Yep. The GOP voters this time around have said, I don't think so. Great to see you both.

LOWRY: Thanks, Megyn.

HURT: Thank you.

KELLY: One of the GOP contenders at tonight's debate now getting a powerful endorsement from a critical group of faith leaders. And Tony Perkins is next to tell us who that candidate is. And why he is a force to be reckoned with the candidate.

Plus, with the threat of terrorism now a top concern for voters, the top concern for voters, we'll look at how the race may be changing. Who benefits? And then as we await the verdict for the first cop prosecuted in the death of Freddie Gray out of Baltimore, is there a chance this case could again become an explosive politica1 issue? We will take that up as are Arthur Aidala and Mark Eiglarsh are here to break down the clues we are getting from this deadlocked jury just ahead.


UNIDENTIFIED FEMALE: Let's make our city proud and show them that there is a better way and not give them what they expect for us to do.


KELLY: Breaking tonight with just a little more than a month to the Iowa caucuses, Senator Ted Cruz is drawing a whole new level of attention.  We showed you the surge in recent polling at the top of the hour. And some of that maybe thanks to some recent endorsements Cruz has received. And now we're hearing that Ted Cruz is about to get a whole lot more support from a group of more than 50 top conservatives in this country brought together by Family Research Council President Tony Perkins.

Tony Perkins is our guest tonight. All right, Tony. So, I know that you are not at liberty to really tell us exactly what happened. So I will just tell the viewers and then you tell us what you can tell us. Tony, back in 2013 decided to try to rally the conservative base to say we have got to have some control, some power in these elections. So, he got a lot of faith leaders and a lot of conservative leaders together and they had a powwow in which they had to take these ballots.

And only if they could get to a supermajority, would they throw their support behind a candidate and they had according to the reports a couple of votes and Senator Ted Cruz and Marco Rubio were like this and Ted Cruz one and now one by one you will going to start to see conservative leaders come out for Ted Cruz. So, he is not going to come firm any of that for us now. However, what do you think of Ted Cruz?

TONY PERKINS, PRESIDENT, FAMILY RESEARCH COUNCIL: Well, Megyn, as you said I'm not going to comment on private conversations that may or may not have taken place. I will say this to your listeners, viewers, that if and when I make an endorsement they can watch it right here. But I will say this. What we are seeing happening is that look at the two leading candidates in this race. They are those who refuse to be restrained by political correctness. They are speaking to the issues that resonate with the American people. And it's being reflected in the polls. I will tell you as you watch Ted Cruz as he has kind of climbing this -- the ladder of the polls, one of the issues in addition to National Security that he has addressing is the issue of religious liberty. He has been talking about that issue across the country.

KELLY: Uh-hm.

PERKINS: It's interesting, a new poll out today by Rasmussen says that it's like 82 percent of parents with kids of school age think we should celebrate Christmas in our schools, 62 percent believe we should have more religion in our public schools. This is an issue that is very late in this election. Some candidates are missing it but Ted Cruz is touching it and I think it's being reflected in his support in the polls among evangelicals.

KELLY: Just as an aside it's a crazy world in which we live when you have your kids, your preschoolers, your kindergartens doing drills where they have to hide in bathrooms and so on as its drills so that they don't get shot. That's what they have to do but they're not allowed to say Merry Christmas or acknowledge God. And that's 2015 America.

PERKINS: It is. And people are tired of that. How else do you explain Donald Trump doing so well in these polls because he is saying what so many Americans are thinking.

KELLY: Uh-hm.

PERKINS: But as they come closer to making a decision about who they are going to pull the lever for, they want somebody who has a track record on these issues. And, you know, they start looking at the candidates and they see who is not just talking about it but who has done those things.  So, I think that's one of the reasons you see Ted Cruz growing in support among evangelicals and other conservatives.

KELLY: But what do you make, you know, we saw Trump take a shot at Ted Cruz over the weekend as follows. Listen to this.


DONALD TRUMP, R-PRESIDENTIAL CANDIDATE: I do like Ted Cruz but not a lot of evangelicals come out of Cuba in all fairness. It's true. Not a lot come out.


KELLY: So clearly this is certainly like a dog whistle to evangelicals of he is not really one of you. Do you think they are going to buy that?

PERKINS: Well, I don't think -- I mean, Ted Cruz not only speaks the language, he understands evangelicals because he really comes from their ranks. But let me say this about Donald Trump. I think people -- there is some who think he is some kind of political mirage. I think that's a mistake. I think you see the tangible evidence that he is real by the support that he is getting. I think it's amazing to watch Donald Trump. I think he is one of the best politicians in the field. He says he is not a politician. But he captures the attention of the public and he is really playing the media like a fiddle. I think Donald Trump is one that we have got to watch very carefully. I think he -- it's going to be up to him and Ted Cruz I believe who gets the nomination in this go around.

KELLY: It's getting interesting. Tony, it's great to see you. And we look forward to hearing that endorsement when you are ready to make it public.

PERKINS: All right, Megyn. I will be here.

KELLY: You hear it right here. You will hear it only on "The Kelly File" first. Well, we are also seeing new polling that suggests terror is now a huge issue for Americans. And it's actually bigger than any time in the last 10 years. Think about that. Guy Benson and Katie Pavlich are here next on which candidates have the inside track on this issue and why.

Plus, a big threat shuts down one of the nation's largest school systems just weeks after the San Bernardino attack and the top terror advisor to President George W. Bush joins us next on how they handled this actually just ahead.


CHIEF CHARLIE BECK, LOS ANGELES POLICE DEPARTMENT: It was also very specific about the threat, the implied threat, the implied threat was explosive devices. The specific threat was attack with assault rifles and machine pistols.



KELLY: Tonight's GOP debate is not only the first time we have seen these candidates since the terrorist attacks in Paris, it is also the first time since ISIS inspired killers executed the deadliest attack on U.S. soil since September 11th, 2001. They killed 14 and injured more than 20 others in San Bernardino. The latest Gallup poll shows terrorism is now the top concern among Americans. For the first time since the bombings in Madrid and London back in 2004 and 2005. And now the candidates are vying to be our next commander-in-chief are going to have to answer some tough questions. Both on keeping America safe and on how they will take on this terror group.

Joining us now Katie Pavlich of news editor and a Fox News contributor. Also, Guy Benson also a Fox News contributor and co- author of the book, "End of Discussion." Great to see you both. So, Katie, let me start with you. The political beneficiaries of terror becoming front and center in the voters' minds are who among the GOP field?

KATIE PAVLICH, TOWNHALL.COM NEWS EDITOR: Well, polling shows that Donald Trump is actually out front when it comes to who they think in the GOP primary race can handle ISIS because he is very blunt with taking on the situation, right just as he is with other top pings. But when it comes to substance I think that Marco Rubio really comes out on top here.  Because for months, he has been very consistent in talking about the ISIS threat and foreign policy as a hole in a way that is deep, that is substantive. Let's not forgot the he serves on the Senate Intelligence Committee. He has access to intelligence reports that the general public doesn't know about. He knows what's going on. He has actually offered a pretty significant plan to defeat ISIS that, you know, requires navy boots on the ground. He has been very honest with the American people what the threat is and how is he going to address it.

KELLY: This is one area Guy where Rubio and Cruz are likely to go at it tonight. Because Rubio has been hitting Cruz relentlessly on the fact that Cruz wanted to see that NSA surveillance program revealed by Edward Snowden repealed and it was and our government has lost those abilities now, thanks impart to a vote by Senator Ted Cruz.

GUY BENSON, FOX NEWS CONTRIBUTOR: Yes. That's a policy difference between Cruz and Rubio. They have been going at each other through proxies in the media taking shots at each other during interviews. Now, they will confront one another face to face. I think we'll probably see some fireworks during this debate when everyone is listening live on the radio, on the Salem radio network while watching your show of course, Megyn. The thing though that Katie mentioned about Donald Trump, I think the reason that he is doing so well on this particular issue, even when he seems to have plans that seemed unworkable or even counterproductive, he is projecting strength and passion which is such a juxtaposition from the President of the United States with his sort of mealy mouth indecision and weakness. Trump senses that moment. He senses the frustration and the apprehension among the American people. And he is filling the void. For good or for ill, he is stepping up to the plate and speaking from sort of a gut feeling that many Americans share.

KELLY: Uh-hm. And there is something refreshing to a lot of voters, Katie, in hearing somebody like Trump say, we are going to bomb the S out of ISIS.

PAVLICH: Right. Yes.

KELLY: I mean, it's exactly the polar opposite of what we hear right now from, you know, the sitting commander-in-chief.

PAVLICH: Yes. Well, they're happy to see a candidate who is willing to talk about this in a way that is real. When people see terrorism happening in neighborhoods that look like theirs on a news, they want someone in charge who is going to go after their enemy.

KELLY: Because they're scared.

PAVLICH: We have seen in the past week -- well, in the past week, this isn't just a foreign issue. Right. We're seeing domestically that the administration have the policy of not vetting properly, people who are applying for visas, not looking at social media post. This comes down to incompetence here at a home and also incompetent overseas and getting rid of these guys where they are before they come back to the United States and kill Americans that we've seen unfortunately happen here.

KELLY: But realistically, Guy, you take, you know, if there were a President Trump, President Cruz, President Rubio, President Christie, President Bush, are you really going to see a huge foreign policy difference between those guys.

BENSON: Well, I think you would see some significance differences.  Overall there are going to be more hawkish than we've seen from President Obama. And I know Hillary Clinton is trying to get in on the act here as they get in on the act --  

KELLY: Isn't that the real difference will be between whoever the GOP nominee and Hillary Clinton.


BENSON: Yes. Absolutely. And Hillary Clinton is going to have to stand up in front of American people and explain why she is the mastermind and the architect behind an absolutely utterly early failed and weak Obama foreign policy. She can take patch off left and right. This is a woman who believed that Libya, the intervention in Libya would be the calling card of smart power and her global designs. It is an absolute failure. A disaster. And she has a record that is in many ways indefensible. That is a very clear distinction that any Republican can draw against the presumptive nominee for the Democrat.


KELLY: She's tied to Obama's foreign policy. Go ahead, Katie. I'll give you quick answer.

PAVLICH: Republicans would be wise not to attack each other on foreign policy tonight. They would be wise to keep their sights focus on the Obama administration and of course on Hillary Clinton.

KELLY: Uh-hm. And so, we will know by the end of this evening whether Republicans are wise. And we will examine that for you during our live midnight broadcast. Thank you both. You look adorable. You sort of look like a couple on top of a wedding cake standing there together. Thank you so much for being here.

PAVLICH: We are so cute.

BENSON: Thanks, Megyn.

KELLY: See you soon.

Well, also tonight, we are now looking at a deadlocked jury. In the trial of the first cop prosecuted for the death of Freddie Gray. That is not good for the prosecution. We'll take a look at what that may mean for this case and for those that will follow.

Plus, two of the nation's largest school systems today faced threats of a large scale terror attack. But they reacted very differently. Up next, a top counterterrorism advisor to President George W. Bush weighs in on which one got it right and why. And her answer may surprise you.


RAMON CORTINES, L.A. UNIFIED SCHOOL DISTRICT: I am not taking the chance of bringing children any place into any part of the building until I know it's safe. Like needing to go frequently, day or night.



KELLY: Breaking Tonight, the nation's second largest school districts shutdown today following a chilling threat against the students. This is the scene in Los Angeles. Look at this, school buses sitting idle. After the school superintendent cancelled all classes out of an abundance of caution. In moments, we will be joined by Fran Townsend, a former Homeland Security and counterterrorism advisor to President George W. Bush, to talk about the threat. But we begin tonight with Trace Gallagher, reporting from our West Coast Newsroom. Trace?

TRACE GALLAGHER, FOX NEWS ANCHOR: Megyn, Los Angeles Police Chief Charlie Beck now says the e-mail named all schools in the L.A. Unified School District, but implied that high schools were the primary targets and that explosives had already been planted. Saying after the bombs went off people with ISIS connections would use AK-47s and other guns to cause further loss of life. Chief Beck says the e-mail was in very good English and that hoaxes normally have syntax errors and incomplete sentences. Beck would not say whether he too, would have shutdown the schools. But at a news conference, he supported the decision made by the L.A. school superintendent. Listen.


CHIEF CHARLIE BECK, LOS ANGELES POLICE DEPARTMENT: It is very easy in hindsight to criticize a decision based on the results that the decider could never have known. It's also very easy to criticize a decision when you have no responsibility for the outcome of that decision.


GALLAGHER: But experts say L.A. Superintendent Ramon Cortines should not have been allowed to make the call on his own. But unlike New York, where the school superintendent or chancellor, as they're called, must get approval from the mayor and police commissioner in Los Angeles, the super makes the final decision. A decision that former Los Angeles police chief and current New York Police Commissioner Bill Bratton disagrees with. Listen.


BILL BRATTON, NEW YORK POLICE CHIEF COMMISSIONER: To disrupt the daily schedules of half a million school children, their parents, day care, buses, based on anonymous e-mail, I think it was a significant overreaction.


GALLAGHER: In calling the e-mail threat a hoax, New York authorities pointed to things like not capitalizing Allah or using a vulgar name for male body part which are not consistent with devout Muslims. The L.A. threat is still being investigated, but the early indication is it's a hoax. All L.A. county schools reportedly, will reopen in the morning -- Megyn.

KELLY: Trace, thank you. Joining us now with more Fran Townsend, a former Homeland Security and counterterrorism advisor to President George W. Bush, she is president of the counter-extremism project, Fran, great to see you.


KELLY: Pretty surprising to hear Bratton. Now the NYPD commissioner, used to be LAPD.


KELLY: Commissioner. And prior to that, NYPD come out and call this significant overreaction by his old colleagues in L.A.

TOWNSEND: I think it's sort of unfortunate that Commissioner Bratton weighed in on the L.A. decision, quite frankly. You know what it's easy to forget, post 9/11. You will remember Megyn, we had these abandoned packages on the streets of New York, and we treated every one of them here like it was a significant threat. We shut streets down. We disrupted traffic. We disrupted the economy here in New York, because it was so close in time post 9/11. We had a lower tolerance for risk. And in fairness it to those in Los Angeles, we are coming on the heels of San Bernardino, given what the language of the threat was and.

KELLY: Talking about assault rifles at multiple schools.

TOWNSEND: Right, and remote -- remotely detonated devices, which we also saw in San Bernardino that failed. When you take all that together and they got this threat before school opened. And so it was an easier decision to make, to say, we're just going to keep the kids home today until we work through this. You know, New York got this threat, they worked through it, but the kids were also in school already. And that's a lot tougher decision to say -- I mean, it's a much higher bar, right? To say we are going to close school. How are you going to get those kids out? Who is going to take care of them? And frankly, if it's a serious threat and you close schools after they're in, you make these children a target as they are leaving.

And so it was different environment here in New York today, than it was in L.A., and I'm inclined to give those in L.A. some slack (ph) over this.

KELLY: But it's an impossible decision for these.


KELLY: For these school chiefs, because on the on the one hand, you can say -- you can look to your police force and they say, "Oh, we don't believe it's a credible threat because they didn't spell Allah with the capital A and they use reference to a male body part." And yet, if somebody shows up and bombs the schools or opens up with an assault rifle, and you knew.


KELLY: And you didn't close it, that's on you the lives of children. The argument against it is you are the one responsible for terrorizing the children and their families by letting a non-credible threat disrupt the entire city. Those are -- that --

TOWNSEND: That's right.

KELLY: Those are the arguments we are hearing today.

TOWNSEND: That's right and you know, I said to myself, having been on a deciding official, if I was that person, I'd rather take the criticism for having overreacted. And it worth the risk if I thought it was a real one. Now, do I think L.A. will learn from this and they will -- they may assess the next one differently?

KELLY: But is that bad? Right, well, that's just it. I mean, I think you want them to make the call straight up on the information they have at the time. At the time they didn't know it was a hoax. And on that basis alone, they acted appropriately.

KELLY: No one can assure you that it's a hoax. I mean, you just have to sort of play the odds. I mean, you are talking about the lives of children. I think most parents would want to know a, the threat has been made. Maybe you say it's been made. We think it's a hoax. It's up to you.


KELLY: You know I mean.

TOWNSEND: I'm with you, Megyn.

KELLY: What are the kids going to miss? One day at school.

TOWNSEND: Right. I don't want government officials making that decision for my children, right? I feel the same way.

KELLY: And yet know, are they gonna swing back the other way. Too cautious, too reluctant to cancel or to intervene because they feel embarrassed somehow. They've been called up by another police commissioner, and it turns out, if you -- it was a hoax.

TOWNSEND: Well, and that's I say, I think it's unfortunate -- Commissioner Bratton knows better than to be weigh in and he wasn't sitting in that seat, at that time, with the information they had. It really isn't fair for him to second guess the decision in L.A. -- I don't think.

KELLY: Fran, great to see you.

TOWNSEND: Good to be here.

KELLY: Well, up next. A deadlocked jury leaves the city of Baltimore on edge tonight, as we await the verdict for the first officer being tried in connection with the death of Freddie Gray. Arthur Aidala and Mark Eiglarsh are next on what they think is happening in that jury room and who is probably happy about it.

And then, did the army actually decide to court-martial Bowe Bergdahl because of the bombshell interview he gave? Trace Gallagher has a report.


BOWE BERGDAHL, UNITED STATES ARMY SOLDIER: Doing what I did is me saying I am like, I don't know, Jason Bourne.



KELLY: Breaking Tonight. Baltimore bracing for potential chaos as we await the verdict for the first officer, being tried in the death of Freddie Gray, in just the last few hours. The jurors announced that they were deadlocked and the judge sent them back to continue deliberating. While officers from neighboring areas made their way to Baltimore in preparation for possible unrest. Leland Vittert is live in Baltimore with the very latest. Leland?

LELAND VITTERT, FOX NEWS CORRESPONDENT: Megyn, the jury goes back to work at 8:30 tomorrow morning. And there are a lot more questions than answers obviously, about what's happening inside that jury room because their deliberations are strictly confidential they have been at it about nine hours when they came out and told the judge they were deadlocked. He said go in and keep working. We don't know if it's one of the charges, all of the charges or what the current vote count is. Experts say though, that the prosecution has a very high bar to meet in this case, proving among other things for conviction on all four charges. Reckless disregard for human life, behavior unlike a reasonable officer and for the misconduct in office charge, the prosecutors had to have proven evil intent. Now, the defense was denied, once again, a request for a mistrial this morning. They had gotten a hold of a letter sent to Baltimore public school students, warning them not to riot and not to participate in any kind of violence. And the defense said this is simply, one more example of why there cannot be a fair and impartial jury here in Baltimore. All those motions denied. But the police are taking no chances here in this city. There are armored vehicles, prepositioned around, waiting possible unrest after a verdict. There are vans with police officers and riot gear, not only from here in Baltimore, but also they have brought in reinforcement from around the state. The Maryland state police are here. I talked to one sheriff from a place about two hours away. He said his armored vehicle and his men were ready to come. Timing on this, we just don't know. We could get a verdict tomorrow, but remember Judge Williams had said he wanted this trial over by December 17th. Whether he will declare a mistrial on Thursday, we just don't know -- Megyn.

KELLY: Leland, thank you. Joining me now with more a New York trial attorney and Fox News legal analyst Arthur Aidala, and former prosecutor, now criminal defense attorney Mark Eiglarsh, good to see you both. So let's start with this. If you are the defense attorney tonight, are you happy that the jury has come out and said they are deadlocked and had been told to go back in or not happy, Arthur?

ARTHUR AIDALA, NEW YORK TRIAL ATTORNEY: Thrilled. I mean, for a criminal defense attorney, a hung jury, a mistrial is a victory. The prosecutor brings the case to trial. They are the ones that are supposed to be in a position of power and strength in. We have all the evidence we need to win this case. So if you are the criminal defense attorney, you are very happy right now.

KELLY: Do you agree with that, Mark?

MARK EIGLARSH, CRIMINAL DEFENSE ATTORNEY: I'm thrilled. I agree with my bald beautiful brother Arthur. I hate retrying cases. I tried one, three times in a row, it's exhausting. But the prosecution's objective is to convict my client. I have avoided conviction. That's wonderful.

AIDALA: He will be home for the holidays.


KELLY: Does it lead to any horse trading behind the scenes right now? Does the prosecutor go to the defense and say, all right, here is the plea. Here is a good plea.

EIGLARSH: Possible.


EIGLARSH: It's very possible. It's very likely. And you know what? I would consider it, if it was very, very low. Because again, the climate, in which I'm trying that case, if I'm misrepresenting this guy. Every juror, they know that there could potentially be harm to them, their family members.

KELLY: Yeah.

EIGLARSH: Certainly the community, if they were to find that there is no proof beyond a reasonable doubt, and at say the words not guilty.


KELLY: I want to ask you about the request yesterday. Today, the jury wanted to see some evidence. They wanted speakers so they could replay Porter's testimony. They wanted some sticky notes. But yesterday, they wanted more on the legal definition of.


KELLY: Evil motive, corruption and bad faith. Now those seem to relate to the charge of misconducts in office. The judge said, in order to find him guilty of misconduct, it can't be just be a mere err in judgment. You have to believe that he acted corruptly, that he had evil motive and not getting Freddie Gray help.


KELLY: And they wouldn't give them additional definition, but is this a good -- is this good or bad? That the jury was honing in on those terms, Arthur, for the defense.

AIDALA: It's very hard. It's hard to read the tea leaves. However, if we are going to do that, I think it's great for the defense, because there's no evidence there Megyn. They're trying -- the prosecutor, in her closing argument said about this -- when Freddie Gray said, "I need a medic," and Porter he didn't call one, it became a casket on four wheels. That just doesn't ring true. That is just not credible. It's not like Freddie Gray was bleeding. It's not like his femur was hanging out of his thigh. He is just making an oral statement, "I need a medic." That's not manslaughter. There is no evil there. It doesn't fit.

KELLY: Well, you have to prove. That's for misconduct in office, and then for the manslaughter, they have to prove gross negligence that he had a reckless or wanted to disregard for human life. And Mark, the thing is that they, they haven't -- they tried to prove that when Porter opened that door, on the fourth stop the van made, he saw a man with a severe spinal cord injury. And they had one officer, a female detective testify, "I spoke with Porter on the phone."

AIDALA: Right.

KELLY: And he said that stopped, Freddie Gray said, "I can't breathe." But the defense denied it. They said this detective misunderstood Officer Porter and that when Porter saw Freddie Gray, he was not injured. He was not that injured there and what they thought he was complaining about was jailitis (ph).

EIGLARSH: Yeah, Megyn, the reason why I'm still keeping an open line with prosecutors, to see what reasonable offer they could throw my way potentially. If those jurors believe the at the detective who testified that -- he told me that he saw him in that condition and he needed help and he didn't. If they believe that, Megyn, this could not go very well for the defense. That's why they have got to be nervous and be thrilled, that at least there is no conviction this time around.

KELLY: That's the best things the prosecution has going. Go ahead, Arthur.

AIDALA: But Megyn, if they convict him on this, it sets the bar so high for every police officer. I mean, your hospitals are going to be packed. Every time someone gets locked up and says, "I need a medic".

EIGLARSH: That's true.

AIDALA: You -- the cop better take him to the hospital or they could be windup getting charged with manslaughter? I mean, it's preposterous. It's not enough. And I don't think Freddie Gray, no one has testified that he was screaming or he was bleeding or was so obvious.


KELLY: If they do convict him. If they do convict him, Mark, what does that do to the remaining trials we have of the rest of the Baltimore six?

EIGLARSH: Here's what significant, first and foremost. If he is convicted, then he doesn't have any Fifth Amendment privilege anymore which means, now he can be called as a witness by the prosecution after they answer those questions.

AIDALA: Mark, Mark, but what about the appeal, Mark? Can't he keep his mouth shut pending appeal?

EIGLARSH: Oh, I would encourage him to do.


AIDALA: So he can still take the fifth.

EIGLARSH: Absolutely.

AIDALA: He can still take the.


KELLY: Do you think -- just some it up tonight. Do you think all the defense attorneys, defending the Baltimore six, those cops, are like this about the hung jury? That they're feeling good that the jury is deadlock now.

AIDALA: I think they are more like this. I think they are more biting their nails.


AIDALA: They're more concerned about what the ultimate outcome is gonna be.

KELLY: Can you imagine.

EIGLARSH: But we are not done yet.


EIGLARSH: But I predict a hung jury. I predict that they are not going to come back.


EIGLARSH: With a unanimous verdict.

KELLY: Well, we'll find out. But as soon enough, I mean -- the judge has to give them at least one instruction to go back and continue deliberating, before he can describe -- declare a mistrial. He has done that now and they will resume again tomorrow. Give it another shot. We'll be back tomorrow to talk about it. Great to see you both, and stand by, so we have a little -- we have a special gift for you coming up in just moment right here on the show. Mark and Arthur, I'm talking to you. Stand by.


KELLY: You'll see.

AIDALA: Oh, boy.

KELLY: We are also looking at new questions tonight about whether the army decided to court-martial Bowe Bergdahl, because of the bombshell interview Bergdahl gave. That's next.


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

KELLY: New fallout tonight over the army's decision to court-martial Sergeant Bowe Bergdahl. Bergdahl was held by the Taliban for five years after he left his base in Afghanistan. His fellow soldiers told us he deserted. But in a new interview, we hear from Bergdahl himself, on what motivated him to leave. And some are now questioning whether that interview may have prompted this new action from the army. Trace Gallagher live in our West Coast newsroom with a report. Trace?

GALLAGHER: Megyn, Serial is the name of a podcast that explores the non-fiction story over several episodes. It becomes a very big hit. The second season is doing the Bowe Bergdahl story, for which Bergdahl did a telephone interview. Now for the first time we hear Bergdahl publicly talk about walking away from his outpost in Afghanistan in 2009. Listen.


BERGDAHL: Twenty minutes out I'm going good grief. I'm in over my head. This is, you know, when I get back to the fob, they're going to hit me with everything they can. I knew that was going to happen, but suddenly, you know, it really starts to sink in that I really did something bad -- or not bad, but did -- I really did something serious.


GALLAGHER: Really did something bad. Bergdahl said he was trying to cause a crisis by hiking to another U.S. military outpost 18 miles away, so that he could meet with the senior army commander and tell that commander about what Bergdahl felt was serious leadership problems endangering his unit. Bergdahl then explains his motivation. Listen again.


BERGDAHL: Doing what I did was me, saying that I am like, I don't know, Jason Bourne. I had this fantastic idea that I was going to prove to the world that, you know, I was the real thing, you know. I could be what it is, like every, you know, all those guys out there who go to the movies and watch those movies, they all want to be that, but I wanted to prove that I was that.


GALLAGHER: A soldier in Bergdahl's battalion thinks that Jason Bourne comment might lead to a guilty verdict, but the army says the court-martial had nothing to do with Bergdahl's interview -- Megyn.

KELLY: Trace, thank you. And we will be right back with a very, very special surprise.



KELLY: Well 'tis the season for Christmas parties and fun. And last week, we had a little shindig here at "The Kelly File," to celebrate a very successful year, thanks to you, our viewers. Here are some highlights. There's my husband Doug, and yours truly, dancing on the dance floor, our Executive Producer Tom Lowell and his wife. And you can see some of our staff and some familiar faces, having a great time at the party dancing to the musical renditions of the Jim Roberti band. They were awesome. See how everybody gets along. This is crew and this is our production staff and these are the people who bring you "The Kelly File" every night. And here was the highlight.


AIDALA: Started out with a kiss how did it end up like this.

CROWD: It was only a kiss.

AIDALA: It was only a kiss.


KELLY: That wasn't Jim Roberti. That was Arthur. And here he is with his partner in crime, Mark Eiglarsh, Marthur, together on stage for the big finale, awesomeness.

Thank you for watching. Don't forget to tune in for a special late night edition of "The Kelly File" tonight, midnight. We are live for complete post-debate analysis. Hume, Luntz, Stirewalt, Kurtz, Thiessen, (inaudible), Dana Perino, and in the meantime, let us know what your thoughts in tonight show.

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