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Kelly File

Rubio, Christie, Carson and Fiorina react to final debate of 2015 on 'The Kelly File'

This is a rush transcript from "The Kelly File," December 16, 2015. This copy may not be in its final form and may be updated.

MEGYN KELLY, HOST: Breaking tonight, protesters are again marching through the streets of Baltimore after a mistrial is declared in the trial of the first police officer charged in the Freddie Gray case. As a racially diverse jury of seven women and five men fails to reach a verdict and leads to new tension in a city already on edge.  Welcome to "The Kelly File," everyone, I'm Megyn Kelly.

A look now at Baltimore where we are tracking a series of protests that have cropped up of the last few hours across the city after the announcement about a hung jury. Freddie Grays's family calls for calm.  The mayor told her citizens they must respect the outcome of this case while the police commissioner told cops to respect the right to protests.  But warn those who commit crimes, they will lose the right to call themselves demonstrators. As for the protesters themselves, clearly they are not ready to make nice with the police. Listen.

(BEGIN VIDEO CLIP)

(PROTESTERS)

"Back up, back up, we want freedom, freedom. All these racist ass cops, we don't need them, need them. Indict, convict, send those killer cops to jail. The whole damn system is guilty as hell."

(END VIDEO CLIP)

KELLY: So, Officer William Porter who was the first of six officers to be tried in the death of Freddie Gray who suffered a severe spinal cord injury while in police custody back in April. Gray died a week later. His death sparked accusations of police misconduct as well as angry riots throughout Baltimore. As of tonight, prosecutors have yet to announce if they will attempt to retry Officer Porter, which is their right. We have a big show for you tonight. Glenn Beck is here on the fall-out in Baltimore as well as on last night's GOP debate.

Plus, in moments, we will speak to a former Baltimore police officer who served with these accused officers and speaks with them regularly. And we will ask our legal panel with what is likely to happen now to Officer Porter and to the rest of the Baltimore six. But we begin tonight with Leland Vittert reporting from the streets of Baltimore. Leland?

LELAND VITTERT, FOX NEWS CORRESPONDENT: Well, Megyn, it's very clear that a number of these protesters who were out weren't going to be happy no matter what happened in court and they told us that over the past couple of days, they were angry, they were using this as an excuse to vent that and to have a very many eye balls focused on them with the national media here.  Nothing like what we saw back in April. Most yet about a hundred protesters give or take at any one time. Sometimes wandering aimlessly because they didn't have a clear leader. Chanting at times, no justice, no peace, no racist police. Other times taunting police officers.

Those kinds of things. But it was clear they did not have a cohesive message. And when you talked to them often times they couldn't really articulate what they were angry about. Sometimes it had nothing do with Freddie Gray. Often times their message about income inequality. Those kinds of things. One of the reasons for the -- so little protesting and frankly, a very quiet night here in Baltimore. There is a different sheriff in town. Kevin Davis, the new police commissioner made it very clear that he would not tolerate lawlessness in anyway. Back in April, we had that stand down order from the mayor. Well now, there was a gear up order from the new police chief. There were fast response units all over with dozens of police officers who would surround a protest. Really before it even got to any type of cohesive message. They did arrest two people.  One of them Megyn was arrested because he was using a bullhorn after they told him to stop.

KELLY: Well, we can do a lot worse than that as we saw last time around with protesters literally burning down buildings in the wake of, well, the initial news of this case. Leland, thank you.

The mistrial declared today comes after the judge repeatedly told the jury to go back and try to reach a decision. And things were no different inside the courtroom with jurors having to explain not once but twice that they were unable it agree on a verdict.

Trace Gallagher is live on our West Coast Newsroom with how this case went nowhere. Trace?

TRACE GALLAGHER, FOX NEWS CORRESPONDENT: And Megyn, 30 minutes after the jury sent a note to the judge, all parties were back inside the courtroom. Our producer says, attorneys on both sides looked very tense as the judge spoke to them privately. One of the prosecutors could be seen shaking her head. The judge then addressed the jury saying quote, "I understand you feel you are unable to come to a unanimous decision in any of the four counts. You have taken the time to listen, therefore, I declare this a hung jury."

Attorneys will meet with the judge tomorrow to schedule a new trial date. If it happens, it would likely happens sometime in the spring.  Legal experts say the hung jury is clearly a blow to the prosecution because the trial of Williams Porter was considered a barometer for the strength of the case against Caesar Goodson. He's the officer who drove the van and the only one facing a murder charge. Baltimore's State Attorney Marilyn Mosby was also in court for the announcement but because of the gag order she did not comment. We did hear from the Baltimore mayor, listen.

(BEGIN VIDEO CLIP)

MAYOR STEPHANIE RAWLINGS-BLAKE, D-BALTIMORE: Twelve Baltimore City residents answered that very solemn call to serve, to hear this case, and to make a decision. They did that. And you have to respect that.

(END VIDEO CLIP)

GALLAGHER: Prosecutors tried to convince the jury that William Porter neglected his duty by failing to put a seatbelt on Freddie Gray and failing to call for help when he knew Gray was injured. The defense argued that Officer Porter thought Freddie Gray was faking his injury because he had jailitis. The lead investigators testified Porter told her that Freddie Gray could not breath. Porter denied that. The jury was made up of seven women, five men, seven black, five white -- Megyn.

KELLY: Trace, thank you.

Let's bring in our legal panel now. Mark Eiglarsh is a criminal defense attorney, former prosecutor. Arthur Aidala is a New York trail attorney and a Fox News legal analyst. Good to see you both.

So, last night we talked about what it meant that they were not able to reach a verdict so far and today's official Mark, they have a hung jury.  This a mistrial. And this is a win for the defense.

MARK EIGLARSH, CRIMINAL DEFENSE ATTORNEY: Absolutely. The purpose of the prosecutor is to seek a conviction. And they didn't get it. Let's not kid ourselves. Justice for Freddie Gray has always meant, A, conviction and prison for the defendant. And they didn't get it.

KELLY: Uh-hm.

EIGLARSH: Now, it is frustrating as a trial lawyer to have to try this thing over. But the prosecutors will face the same challenges in the next trial which includes a testimony from Officer Porter that he didn't single out Freddie Gray. He has never put a passenger who he has transported in a seatbelt, ever, in the five years that he's been a police officer. He is concerned about his own safety and the very narrow area of the paddy wagon.

KELLY: And trying to get them belted in. Arthur, I mean, how often does it happen that prosecution's evidence improves somehow on the second time around?

ARTHUR AIDALA, NEW YORK TRIAL ATTORNEY: Oh, I don't know of any time.  They lose the whole element of surprise. So many times when Mark and I are in there as defense attorneys, the first time we hear a witness, the first time we hear anything is when they testify. Now we know it's coming. But Megyn, what troubles me is the people outside with those chants and those rants that you just said. All of those six cops that you have up there, obviously, I don't know any of them personally. I don't represent any of them. If you set them down one at a time, I bet you they are all very fine law-abiding people. This is not the type of case where a cop beat somebody or a cop stuck a night stick in an inappropriate place. This is a guy who didn't pick up the phone and call a medic for a guy who is not -- didn't appear to him, he testified that seemed really hurt. He just thought he was just coming up with an excuse not to go to jail.

KELLY: Can we see that chant? Do we have that chant? Look at this.

(BEGIN VIDEO CLIP)

(PROTESTERS)

"Back up, back up, we want freedom, freedom. All these racist ass cops, we don't need them, need them. Indict, convict, send those killer cops to jail! The whole damn system is guilty as hell. Whose streets?  Our streets!"

(END VIDEO CLIP)

KELLY: So, Mark, it gives you a sense of what the defense is up against. Those racist, all right, first of all, Officer Porter is black --

AIDALA: Right.

KELLY: The decedent here, Freddie Gray was black. But Officer Porter is black as are several of the other cops who are under arrest. And they chanted those racist a cops talking about killer cops, I mean, this is what -- this is why the defense was arguing, we are not going to get a fair trial in this city.

EIGLARSH: And that's why I'm arguing it. I've been yelling for months that it's not fair. That every juror knows that if they were to say, not guilty, their town burns down. Their family will be sought after.  They might be harmed. It takes courage for jurors who think that there's not sufficient evidence to actually sign their name and say, not guilty.

KELLY: Right. You can only imagine what went on inside that jury room. So, the audience knows, the jury would have had to be hopelessly deadlocked on each of the four counts on manslaughter, on assault, on misconduct in office and the last one was reckless endangerment. So, they didn't -- the prosecution did not prove its case on any one of the four Arthur. And so, realizing the pressure that Marilyn Most is under now, the prosecutor, and what she has already done in this case and the statement she's made and you know, I will get you your justice and all that stuff, this is our time. Remember, she said to all the protesters, this is our moment. She is likely to retry it, is she not?

AIDALA: Yes.

KELLY: What are the odds that she is going to throw in the towel?

AIDALA: Right. I know. I think she has to retry it. I don't think she really has a choice in the court of public opinion. Because I don't think she has got the intestinal fortitude to come up and say, okay, maybe we're wrong.

KELLY: But what is he doing to her case against the other officers.  He was supposed to be first. And if you can turn him, you can use him in any other cases, but now that's done. You were pointing out last night.  He'd have to testify. That's done. She can't use him. Now he is going in the spring in the earliest. Does she proceed with the second trial?

AIDALA: Well, the thing is this. You always lead, when have you multiple defendants case, you always lead with your strongest case. You want that first domino to fall. And the fact that it did not fall here is a tremendous blow to her. She has to sit down with prosecutors in her office, much more senior than she is, much more experienced, and really reexamine the entire strategy. Because the whole game changed today.

KELLY: Go ahead Mark, quickly.

EIGLARSH: Megyn, I just want to add that, you know, where we tried cases, most prosecutors will find out where the jurors fell down. If it was 11 for not guilty and maybe one for guilty, they won't bring it to trial. They know that the chances of success are low. She doesn't seem like someone who would do that. She's going to do it because public opinion dictates there must be another trial.

KELLY: The jury and the others are still under a gag order so we are not supposed to know. But as Mark points out --  

EIGLARSH: The court officers whisper it to you.

KELLY: Oh, this is kind of exciting. I wish we could be there.  Great to see you both.

EIGLARSH: Thank you, Megyn.

AIDALA: Sure, Megyn.

KELLY: Just a short time ago, Officer Porter spoke to the Baltimore Sun and would only say, it's not over yet. And he is right. Mike is a former Baltimore police officer who served with the accused officers in this case. And he speaks with Officer Porter regularly. At his request, we are protecting his identity.

Mike, thank you for being here with us tonight. So, you have spoken with Officer Porter and with the other accused officers involved here. How are they doing?

MIKE, FORMER BALTIMORE POLICE OFFICER: They are anxious for this stuff to be over with.

KELLY: Do they have faith in the system?

MIKE: I think, you know, at first there was a little, you know -- they were a little worried about, you know, the denial for the change of venue. Getting the trial outside of the city. But, you know, this mistrial though has declared today, you know, it just goes to show today that, you know, there is faith in the system and there are good people out there. They are going to follow the evidence where it leads them and they're not going to base their decision off of emotions.

KELLY: Do you think Marilyn Mosby is going to recharge this case?  That she is going to pursue a second trial?

MIKE: I think, absolutely. She is going to -- I mean, I don't think there is any question about that. There is always a scheduled meeting.  You know, a closed-door meeting with the judge (INAUDIBLE) prosecutors.  And I'm sure that's going to be hash out when the trial is going to be, come up next. And, you know, she is on a witch-hunt or a cop hunt or whatever you want it call it and I think there's going to be no question that she's going to, you know, try it again.

KELLY: Why did you leave the Baltimore police force?

MIKE: You know, I think the cases here are just a real big example of ultimately why I left. Because you can't go into work in Baltimore and be the progressive officer, you know, where you are going out there and stopping this violent offenders and doing these things. Because if it a pure accident happens, you know, something that's out of your control, like what happens with these officers, you can see exactly where the city is going and whose sides they are taking. And it goes beyond the police administration, the police leadership. This is a bigger problem within Baltimore city that, you know, unfortunately I don't think it's going to be cured any time soon.

KELLY: Do you think there are other cops who are scared to do their jobs? I mean, I don't know if scared is the right word, but you know, reluctant because their concern they may wind up on the wrong side of the handcuffs.  MIKE: Oh, I think ultimately, I think, you know, like you said, I don't think scared is the right word. But I think that you're not going to see that officer going out there and being as, you know, proactive and, you know, the same tactics prior to the Freddie Gray thing, you're not going to see them going out there because the city has proven that, you know, if something small happens, something -- I don't want to say small, correct that. Because I mean, the Freddie Gray wasn't small case. But you know, if something like that happens, again, this city doesn't have your back.

KELLY: Uh-hm. And has anybody else left the Baltimore Police Department or is it just been you or? What's the status of the work force there?

MIKE: Megyn, they are losing officers left and right. The Baltimore Police Department can't keep officers and you know, they are so desperate for officers, they are actually trying to get retirees to consider coming back to the department.

KELLY: Wow. Final question. Have you spoken with Officer Porter recently? I mean, how does he walk around Baltimore? Does he feel like a paraya? Does he -- well, I mean, what is it like to be in his position right now?

MIKE: You know, I think his statement today was, you know, it's not over yet and he knows it. But I think this is a -- something that's going to -- will not only Officer Porter but this will keep, you know, help keep all the other officers that are about to be going up through the courts, it's going to, you know, give them a little sense of relief to know that there are good citizens out there that are not going to, you know, try these officers and, you know, find them guilty based of emotions. They're going to follow the case where the evidence leads them. You know, I think the state did a very poor job of presenting stuff. And they didn't have the case here and they are going off of a theory. And they have nothing more than a theory. They don't have the evidence. And, you know, I would be interested to see what they have for the following officers.

KELLY: Yes. Clearly, the jury -- at least some of the jurors, or one juror, agrees with you on that. That's how we find ourselves in this position tonight. Mike, all the best to you.

MIKE: Thank you.

KELLY: You know, it is so interesting. There is a Daily Beast headlines out tonight saying, Marilyn Mosby is blowing this case. She's blowing the case against the Baltimore six, the first one has ended in disaster for her. They got chastised by the judge, the prosecution did for not closing for the defense that Freddie Gray had confessed that he had a back injury a month before he died in police custody, he had confessed that. The prosecution withheld it from the defense. The defense wanted a mistrial based on that, the judge said, no. But they were allowed to introduce it.

The prosecution was supposed to tell them about it. So, this case is going down the drain. And that's where it stands tonight. So far.  However, the people of Baltimore, well you heard what some of them think of the cops. And there are concerns that Baltimore remains on the brink of new violence depending on what happens here. Glenn Beck is here with his thoughts on the scene that unfolded today. Plus, he will share his pick for president after last night's debate. And then later, Marco Rubio joins us live in his showdown with Ted Cruz last night and the fight that is still ahead.

Plus, Governor Chris Christie, Dr. Ben Carson and Carly Fiorina are all here to talk police, politics, and some of the very personal attacks we have seen on a couple of them in just the last 48 hours. Still ahead.

(COMMERCIAL BREAK)

KELLY: Back now to our breaking news out of Baltimore where a judge said, there was a hung jury and declared a mistrial late this afternoon for Officer William Porter. The first cop to stand trial in the death of Freddie Gray, the protests have been peaceful so far today. Not nearly as dense as we saw a few months ago. But as we saw from the video we just showed you, there is real anger at the cops and the system in this town.

Glenn Beck is founder of The Blaze and a New York Times bestselling author who's out with his new book "The Immortal Nicholas."

Glenn, it's great to see you.

GLENN BECK, FOUNDER, THE BLAZE: Thank you.

KELLY: And so, we see unrest in Baltimore, in part, because a lot of the folks there wanted to see a conviction and they feel that they as a city have been railroaded into poverty, into a life in which the cops are out to get them. And nobody cares. Your thoughts? Well, the way to make people care is not to burn your city down. That's not a way to make people care about things. I think they have been railroaded by progressive policies. So has Chicago. So has Detroit. Lots of places have. That's why you get involved in the political system. Are the cops bad? I think there are bad cops but I think there are more good cops. You know, there's bad people. There's bad bakers. There are bad TV show hosts. There are bad everything. That's the way society is. The job of people who really want justice is to strengthen the justice system, not weaken it. To strengthen community ties, not weaken them.

KELLY: I want to shift gears with you because there was an extraordinary column out today that we want to talk about politics, in the "Wall Street Journal" that really got to the reason why in this Republican race for president, Donald Trump, is dominating the GOP field. Despite the controversial statements, despite his critics saying, he is a racist, he is bigoted, he's unhinged and so on.

BECK: Yes.

KELLY: And it was written by William Galston who used to advice President Bill Clinton. It is about the very, very unhappy white working class voters. And Galston points out that over the next decade, it is 95 percent of all jobs, he writes, will be in the service sector. Okay? And of the 15 occupations with the most projected job growth, only four need a college education. Only four. Nine of those offer median wages under 30 grand a year. So, the author writes this, quote, "economic anxiety," demographic resentment and fears of physical security, make a toxic combination. Trump did not create these sentiments like demagogues throughout history, he is exploiting them for his own purposes. Your thoughts on that?

BECK: I don't know. I read that article and I thought quite frankly that a lot of it was hooey. What I do think is that he is exploiting the people, and I wouldn't say it is just the white working class, I think it is everybody, that feel as though nobody is listening to them. Why are there riots in the streets of Baltimore? Why don't we actually fix what is going on in Chicago? Why is Donald Trump growing? The same reason.  Nobody seems to be listening. Nobody who has actually been voted into office is listening to anyone close to the problem. And that's why when we became unhinged from the constitution, that's why this is happening.

Because the power is all in Washington. Washington is in a different world, a completely different world. We need the power to be closer to the people again so we can solve our own problems and we can actually have people that we can go address and see and we can talk to and they will listen to us. Donald Trump is nothing more than a reaction that we warned about. When I was on FOX, I warned about this, talked about a pendulum swinging back. You don't want this to happen. If you don't listen to the American people or any people they're going to go a different direction.

KELLY: What do you think is likely happening? All right. Trump has got 41 percent of the Republican vote at least according to one poll.

BECK: Yes.

KELLY: And they are now some people coming out and saying that, if he is the nominee, somebody said this on our show last night, Hillary Clinton will win 49 out of 50 states and the Republican Party will face devastation like it's never seen before that they will give up -- they will give up in state legislators and so on because so motivated will the Democrats be to get to the polls and stop him.

BECK: I know that I won't go to the polls. I won't vote for Hillary Clinton and I won't vote for Donald Trump. I just won't. And I know a lot of people that feel that way. I know there's a lot of people in the GOP who are like, look, he is better than Hillary Clinton. Maybe, I don't know. I mean, the guy last night didn't even know what the triad was. He didn't even know what our, you know, the missile silos and the strategic air command with the missiles on the plane and our nuclear submarines. He didn't know what that meant.

He couldn't even answer that question. It was bizarre. He is also a giant progressive. So, I can't vote for progressive. I can't vote for Hillary, and I can't vote for him. I said, probably a year and half ago that I thought we were entering the times of the wing party. That the Republicans were going to go to the way of the wigs who they demolished back in Abraham Lincoln's time. And I think that's happening. They have not -- they got power, they said we just have to have a House and a Senate.  We got it. Now they are saying, well, we have to have the House and Senate and the White House. Well, wait a minute. We heard that before with George W. Bush. They're not listening. They're not doing what the people who hired them to do. If they put Donald Trump in -- try to put him in office, if that's what the people want, you're going to see an end to the Republican Party. It will be over, just be nothing left.

KELLY: Before I let you go. Who do you like?

BECK: Ted Cruz.

KELLY: He's your guy?

BECK: He's my guy. I like Ted Cruz a lot. I mean, I could consider voting for Rubio. I disagree with Rubio on a lot of stuff. I like Rand Paul an awful lot. But I'm trying to think who else there is but --  

KELLY: Fiorina.

BECK: She's okay. I think there's only three people really -- there's really only three people --

KELLY: Carson?

BECK: It's going to end up -- it's going to quickly whittle down to these four people. It's going to be Trump, Cruz, Rubio and possibly Chris Christie. Because I think you will going to see Chris Christie start talking to progressives in the Republican Party that like the government.  I think he's going to make some inroads. But really it's those three and in the end, I think it's Cruz and Trump.

KELLY: Exciting to watch. Glenn, great to see you, as always.

BECK: Thanks a lot. Thank you very much.

KELLY: Well, last night Marco Rubio found himself in a big time fight over who was telling the truth on the issue of immigration. Tonight, there's a new twist, and the Senator is here, next, live to react.

(COMMERCIAL BREAK)

KELLY: Well, Breaking Tonight. Last night's debate was all about Cruz V Rubio. The Cuban-American senators sparred on topics from surveillance to defense spending, but it was on the issue of immigration where the two seem to have the widest gulf. Watch.

(BEGIN VIDEO CLIP)

SEN. TED CRUZ, R-TEXAS, PRESIDENTIAL CANDIDATE: There was a battle over amnesty and some chose, like Senator Rubio, to stand with Barack Obama and Chuck Schumer.

SEN. MARCO RUBIO, R-FLA., PRESIDENTIAL CANDIDATE: I'm always puzzled about his attack on this issue. Ted, you support legalizing people who are in this country, illegally.

CRUZ: For Marco to suggest our records the same, it is like suggesting the fireman and the arsonist have the same record because they are both at the scene of the fire.

RUBIO: That Ted Cruz ruled out, ever legalizing people that are in this country illegally now.

CRUZ: I have never supported legalization and I do not intend to support legalization of.

(END VIDEO CLIP)

KELLY: Joining me now, one of the men engaged in that battle, republican presidential candidate and Florida Senator Marco Rubio, Senator, good to see you.

RUBIO: Thank you.

KELLY: So it is not true that Senator Cruz has never supported legalization. Not citizenship, but he has supported legalization.

RUBIO: That's right.

KELLY: You were right on that, we fact-checked him on that last night with Brit Hume right here. He has. He did. He's on the record repeatedly, back in 2015, supporting legalization for the 11 million. So do you think he is taking a harder line now on this issue, in order to appeal to the GOP debates?

RUBIO: Yes. He's clearly was the supporter of legalization and the amendment. He talked about how he wanted the bill to pass. He said, "I want immigration reform to pass." And basically, the argument he was making is, "we can pass immigration reform, but we can't do citizenship. Let's just do legalization." And if we do that, this bill has the chance to pass.

(CROSSTALK)

KELLY: And let me just tell the audience, we have all that sound, we - - I can take up the next three minutes playing it for you of Senator Ted Cruz saying all that, and giving local interviews. He said it, it's true. So - I just want to know, it's not in dispute. He said it.

RUBIO: Right.

KELLY: So the question is, whether this is tactical shift to appeal to the right-wing base.

RUBIO: Well, there no doubt. He doesn't mention that in the speeches in Iowa. He obviously mentioned that at the time because he -- that's what he wanted. And now of course, in this campaign, he is looking for a political advantage, and so he tried to obscure the lines on it. I want to be clear. I like Ted personally, very much. These are important differences, particularly on the defense stuff that we should talk about. On the issue of immigration, look, in 2013, I live in a state that's deeply impacted by immigration. And I said I want to try to make a difference. Now I know that Harry Reid controls the Senate, so let's do the best we can in the Senate. Hopefully, the House will make it even better, and let's see if we can make some progress. Because after 30 years, this problem was only getting worse, not better. Now I realize that we're not cannot do anything on immigration until you bring illegal immigration under control. People, just the same. WE have a quarter million people come into this country illegally, every single year.

KELLY: Yes. So you sort have gotten to harder stance on this, than back in 2013.

RUBIO: Well --

KELLY: You realize -- you say you need to do enforcement first.

RUBIO: You have -- and not only, you have million to pass an enforcement, but you have to actually do it and prove to people that it is working before you can do anything else.

KELLY: Because they won't support you otherwise.

RUBIO: They won't support. And at this point, it's the prudent thing to do, especially after two migratory crises on the border too, unconstitutional executive actions and so forth. And plus, we just can't pass this comprehensively.

KELLY: OK.

RUBIO: But the point I was trying to make is, I don't know how he can attack me on this issue when, in fact, he himself supports legalization and did.

KELLY: Well, he said he doesn't now. But clearly, he did back in 2013. And I will ask him about that the next time I get to talk to him.

Let me ask you about defense spending, because you hit him as follows for not supporting this National Defense Authorization Act, saying you voted against funding the military. Watch.

(BEGIN VIDEO CLIP)

RUBIO: Three times he voted against the Defense Authorization Act, which is a bill that funds the troops, that also by the way, fund the Iron Dome and other important programs. And I have to assume, as you vote against that in the Senate, you would also veto it as president.

CRUZ: Yes, it is true that I voted against the National Defense Authorization Act, because when I campaigned in Texas, I told voters in Texas that I would oppose the federal government having the authority to detain U.S. citizens, permanently, with no due process.

RUBIO: Three points of distinction. The first is, if you're an American citizen and you decide to join up with ISIS, we're not going to read you your Miranda Rights, you're gonna be treated as an enemy combatant, a member of an army attacking this country.

(APPLAUSE)

(END VIDEO CLIP)

KELLY: So Yahoo! News did a fact-check on you on this, and they said; number one, you didn't even show up for the vote on that. Is it this bill that you were so concerned about? And number two, they say, actually, the military gets funding from the annual appropriations bill, and you and Cruz voted against that.

RUBIO: Well on the first point, the NDAA does fund the military because they authorize the spending of the money.

KELLY: It authorizes these programs.

RUBIO: But you can't spend it if it is not authorize. It's an important bill I voted for three times. I never opposed it. I missed the vote on campaigning for president, but I never opposed it. I voted for three times in the past because it authorizes the spending on things like the Iron Dome.

KELLY: But the appropriations bill actually gives the dough and you voted against that and so did he.

RUBIO: So the appropriations bill finds the money. The authorization bill actually authorizes you to spend it. Without the authorization bill, you cannot spend it. It is an important bill. And it's why I've always supported it. I'm a supporter of it, because it funds the troops, it funds the Iron Dome. It's a -- and not once, but three times he's voted against it.

KELLY: Senator Marco Rubio, it's great to see you.

RUBIO: Thank you.

KELLY: Thank you for being here tonight.

RUBIO: Thanks.

KELLY: Well, you heard Glenn Beck a few moments ago, saying Governor Chris Christie may be one of the last folk standing in this race. Governor Chris Christie is here, next. He will be sitting.

Plus, Dr. Ben Carson answers charges that is his race that propelled him to the top of the polls and that is his race that is now bringing him down. We will tell you who is making that charge and Dr. Carson's responds, next.

(COMMERCIAL BREAK)

KELLY: Breaking Tonight. One of the strongest performers last night was apparently Governor Chris Christie. Some headlines today calling him quote, "strong and the winner." Our Frank Luntz's focus group weighed in as well.

(BEGIN VIDEO CLIP)

FRANK LUNTZ, AMERICAN POLITICAL CONSULTANT: So let's do an order phrase to describe Chris Christie.

UNIDENTIFIED FEMALE: He's absolutely on point and he makes me feel safe.

UNIDENTIFIED FEMALE: I think that he is trying to discredit the other people on their records, but those count too.

UNIDENTIFIED MALE: Highly confident, direct, to the point.

UNIDENTIFIED FEMALE: I believed him.

UNIDENTIFIED MALE: Tells it like he sees it.

UNIDENTIFIED FEMALE: He's experienced.

UNIDENTIFIED MALE: The right man to these times.

LUNTZ: Who would you switch from?

UNIDENTIFIED FEMALE: Carson to Christie, because I can trust him as my president.

UNIDENTIFIED FEMALE: Trump to Christie, because I believe in him and he was 2,000 percent more presidential than anybody else tonight.

(END VIDEO CLIP)

KELLY: Joining us now, governor of New Jersey and republican presidential candidate Chris Christie, Governor, great to see you. So you must be feeling pretty good listening to that.

GOV. CHRIS CHRISTIE, R-N.J., PRESIDENTIAL CANDIDATE: Sure. That's great. And had a good time at the debate and, you know, looking forward to get back out on the campaign trail and do my job, which is, you know, making sure that we convince as many voters as we can, leading up to Iowa and New Hampshire next month.

KELLY: Do you feel like you've been somewhat of a dark horse in this race? You know, slow and steady wins the race?

CHRISTIE: Yeah, I do. I do. You know I think I was discounted early on and that's fine. You can't worry about the things you can't control. I just went out and laid out our program and our plan and do it the way you do it in Iowa and New Hampshire. You know, day-to-day, hand-to hand retail campaigning and we're making an impression that we've been, the pressure in the debates too. So I think we are doing well at the right time.

KELLY: What is the path to victory for you? Because I realize that in New Hampshire now, you're tied for second place. But nationally, you're still down in the low single digits. So people say, "Oh, Christie, he can't do it. He's way down it's like." Trump will be the first to point out, "You're at three and I'm at 41."

CHRISTIE: Yeah, well. Listen, none of that matters because we don't have a national primary. We have primary state by state. And when people actually start to vote, it changes its national numbers overnight. So I think we will do well in Iowa and I think we do very well in New Hampshire. And when we pull that off, then you will see those national polls change very, very quickly then. And we will go state by state by state, South Carolina, Nevada and go from there. So the path to victory is the same for me as this for anybody. You need to do well in either Iowa or New Hampshire, or you're not gonna continue in this race. And so we're gonna do very well in New Hampshire, and I think we do well in Iowa. And then we'll be one of the few that are gonna be that. I think this race will be down to four or five candidates by February 10th.

KELLY: What did you think -- I mean, obviously, Ted Cruz is somebody who pushed to eliminate that the NSA surveillance program, as somebody who used that program, and I know you were in favor of it and you don't, you don't believe it should have been repealed, but how big an issue, do you think that's gonna be for Ted Cruz who is rising in the polls right now.

CHRISTIE: I think it is a huge issue because I think Senator Cruz also isn't telling the truth about it. He's trying to make it sound and try to make it sound less likely. Somehow he made the program stronger, and he didn't. He made it weaker. And he made the country weaker and more vulnerable. And you know you can get away with that and the 75 seconds response on the debate, but you can't get away with over the long haul of a campaign. The fact is, is his vote was wrong. It was politically expedient and he shouldn't have done it. And I think the American people will respect him a lot more if he would have looked in the camera last night and said, "Hey, listen. I made a mistake. It was a wrong vote, I made a mistake. I understand that now and I'm looking to restore those authorities to the NSA." He should have done that. He didn't. He's wrong and not telling the truth where he says he made the program stronger.

KELLY: Finally, Governor, you getting a hit for getting the king of Jordan wrong. You said it was King Hussein, they said.

CHRISTIE: Oh.

KELLY: You said you're gonna talk to him.

CHRISTIE: I misspoke.

KELLY: You said it was gonna be tough because he died in 1999.

(LAUGHTER)

CHRISTIE: Yeah, I'm just -- I just misspoke, you know. King Hussein was King Abdullah's father.

KELLY: You're not allowed to do that in campaigning in 2015.

CHRISTIE: Yeah, you know, apparently not, you know. But I know King Abdullah very well. As you know, we've visited with him as families over in Jordan, me and Mary Pat and the children all went visited with him. He -- when he was just recently to New York City, we had a great meeting for an hour at his hotel.

KELLY: Yeah.

CHRISTIE: In New York, because we are friends. So King Abdullah will forgive me for having, you know, used his father's name instead of his. I'm sure that's not the first time it happened to him.

KELLY: But the mainstream media will not -- great to see you, governor.

(LAUGHTER)

CHRISTIE: Thank you, Megyn, happy to be here.

KELLY: All the best.

Well, Dr. Ben Carson is also drawing new attention tonight, as a well known Washington Post columnist, makes a controversial case on a recent dip in polling for the doctor. Jonathan Capehart, who is himself, African- American writes, "If you want to know the reason behind Ben Carson's tumble in the polls, you need only look at what propelled him there in the first place: race."

Joining us now, retired neurosurgeon and republican presidential candidate, Dr. Ben Carson. Dr. Carson, good to see you. So that's what Jonathan Capehart says.

DR. BEN CARSON, R-PRESIDENTIAL CANDIDATE: Thank you.

KELLY: That the he lack of loyalty to you is where race, plays a central role. That folks were quick to shift their loyalty away from you and had no problem doing so, in part, because of your race -- your thoughts on that?

CARSON: I think that's nonsense. I think the liberals have a tendency to pay much more attention to race than conservatives do. And you know, here at a rally in Nevada today, huge, very enthusiastic crowd, showing no signs of what Mr. Capehart had just talked about. So I think I would attribute it more to circumstances. The circumstances being that, you know, there was the attack in France. There was the attack in San Bernardino. And people, for some reason, have bought into the narrative that because I'm soft-spoken, that I'm not tough. And that's an uphill battle, but I will continue to fight that. And people will be able to listen and understand that I do know quite a lot about foreign policy and about the protection of the Homeland. And that message will get through over the course of time. I'm confident.

KELLY: But let's talk about it. So you are down in the polls, down to fourth place in the RealClearPolitics national average, in the Iowa RealClearPolitics average are down to fourth place as well, that's down more than 17 points since November 1st. And New Hampshire same thing, seventh place there, down more than seven points since mid-November, which has some people saying, you're done. Are you done?

CARSON: I don't think so. But you know, time will tell the story. You know, things will shift fairly dramatically as we get closer to the election, if history is any indicator. So I think the important thing -- I'm no politician, so I'm not going to have my finger up in the air, and I'm not gonna be listening, people saying, you have to make this dramatic change or you do this and you got to yell more and you got to be more, of course, that's not who I am. I will continue to be who I am. I will continue to talk about what actual issues are. And I think people will be able to see that. I'm offering them a choice of somebody who is not a career politician, but somebody who has a lifetime of accomplishment who knows how to work with people very well, who learn very quickly and who loves America, and wants to see it succeed. And if they like that, great, and if they want something else, you know, this is a free country.

KELLY: Dr. Carson, it's always great seeing you. Thank you, Sir.

CARSON: You too. Thank you, Megyn.

KELLY: Up next, Carly Fiorina response to an attack so vulgar, that the attackers own wife said he had to apologize. Here we go again.

(COMMERCIAL BREAK)

KELLY: Breaking Tonight. A popular conservative radio host in Iowa now apologizing after getting major pushback on social media and from his wife for a sexist tweet he sent out during last night's debate, mocking republican presidential candidate Carly Fiorina as going, quote, "Full V- word" in her opening remarks.

Carly Fiorina is here. She's a former CEO of Hewlett-Packard, Carly, good to see you. So what -- I mean, I guess, you have to blow this off. You have to act like this doesn't bother you. You have to like -- I'm sorry that you even ask me to respond to this. But it's like over and over, people take these sexist shots at you.

CARLY FIORINA, R-PRESIDENTIAL CANDIDATE: Well, I've been called the V- word, so now I guess I'm going to be called the V-word. What's amazing to me is I told an American story last night, in my opening comments. I told my story just like every other candidate has told their story. So it's inexplicable to me why this major surrogate of Ted Cruz thought that was playing the V-card. But the more important is this. This gentleman is more than a radio show talk host. He is a major surrogate for Ted Cruz and a major endorser. And this is why Ted Cruz cannot possibly beat Hillary Clinton.

KELLY: Well, because, I mean, is he responsible for everything his surrogates say?

FIORINA: Well, this is a major member of Ted Cruz's campaign. Ted Cruz relies on him to speak for him. In fact, he was speaking for Ted Cruz last night. So this is the Cruz campaign. And I think we need to be realistic or about what we're going to face with Hillary Clinton.

KELLY: You know, you have something in common with her in that regard, and that's not the only thing...

(LAUGHTER)

KELLY: That is what I was probably conclude the list of things you have in common. But I -- she's going through some sexist attacks and will go through more and you are too. I know viewers -- they don't want to hear, it was like, OK, whatever. Everybody has got their troubles, but it is a recurring theme.

FIORINA: Well, yes. Look, I believe in meritocracies. I will never ask for people's support because I'm a woman. I will ask for people's support, I believe I'll be the nominee because I think the more people hear, the more they realize I am the most qualified candidate to beat Hillary Clinton and to become president of the United States.

KELLY: Because you're strong, because you're fiery, not because you actually wrong.

FIORINA: I'm very proud to be a woman. And 53 percent of our nations are women.

KELLY: Now, one thing you may also have in common with her is you both like dogs. And I got to ask you about this dog video that your campaign put out where -- we don't have time to play the whole thing, but there's a line in there where you look at the dog and say, "Barack Obama eat your cousin?"

FIORINA: Well, Barack Obama said he ate their cousin in his book. That he had eaten dog. Look, it was a funny video. It was a light video, and I thought it came off well.

(LAUGHTER)

KELLY: It definitely shows a different side of Carly Fiorina. And I, too, am a dog lover. And she actually tried a Milk-Bone dog biscuit, which I will say for the record, I too have done, many, many years ago, and then she gave it to her.

FIORINA: I used to eat them a lot when I was a kid. I mean, with my dog, of course, but.

(LAUGHTER)

KELLY: Thank you for being here.

FIORINA: Thanks, Megyn.

KELLY: All the best. We'll be right back.

(COMMERCIAL BREAK)

KELLY: Well, don't miss tomorrow, we have Charles Krauthammer. Also, a high school football coach under fire, he prayed to God at the end of the games. Another coach chanted to Buddha. Only the Christian coach got suspended for his prayers, and he's here to react.

Check it out, 9:00 p.m. Thanks for watching, everybody. I'm Megyn Kelly. This is "The Kelly File."

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