Mideast volatility raises questions about US leadership; Ala. judge orders halt to same-sex marriage licenses

Retired Lieutenant General Michael Flynn weighs in on 'The Kelly File'


This is a rush transcript from "The Kelly File," January 6, 2016. This copy may not be in its final form and may be updated.

MEGYN KELLY, HOST: Breaking tonight, serious concerns that the world's most volatile region is on the brink of exploding. And today the White House asked point blank if a lack of presidential leadership is to blame.

Welcome to "The Kelly File," everyone, I'm Megyn Kelly. In recent days, we have witnessed a series of troubling headlines out of the Mideast.  Including tensions soaring between two of the region's power players, Saudi Arabia and Iran. Diplomatic ties between the two nations have been severed after two Saudi diplomatic posts were attacked in Iran, following the Saudi's execution of a top cleric. The U.S. so far reluctant to get involved.

Meantime in a defiant move against the West, Iranian State TV showing off a new underground missile depot. Look at it. In it missiles the U.S. believes are capable of carrying nuclear warheads. I mean, this must not have been covered by the deal. This comes just days after Iran shot a rocket dangerously close to a U.S. warship. And as we reported on the show last night, despite the end of the Afghanistan war, remember we were told it's over. No more combat. Our troops are engaged in an increasingly dangerous operation there. Just yesterday one soldier was killed. Others were injured. And our fighters even surrounded by the enemy at one point.  Until a team managed to rescue them. The Taliban now controls more territory than at any time since 2001. All the gains given back.

And then there is the crisis in Syria. Today an Associated Press report suggesting that the Obama administration now feels the best case scenario for regime change there won't come before 2017. More than five years after President Obama called on President Assad to leave power. President Obama is going to leave power before Assad is. And while we're on Syria, our sister network, Sky News, has obtained a chilling new video of what is being described as Jihadi University of sorts there. Just look at this.  This will give you bad dreams in the middle of the night. ISIS terrorists there are being trained to carry out sophisticated attacks on the West.  With scientists even seen preparing surface to air missiles.

It is all -- they are planning it, at a university. That's how much power and control they have. In the meantime, relations aren't exactly blossoming with our most important ally in the region. Amid reports the U.S. has been spying on Israel. And while long time diplomat now saying President Obama essentially wrote off Israeli Prime Minister Benjamin Netanyahu after his 2012 re-election. So, what of the White House and leadership?

Charles Krauthammer says it seriously lacking.


CHARLES KRAUTHAMMER, SYNDICATED COLUMNIST: We are in the middle of a meltdown in the Middle East. Terrorism all over the world. Shut down of capitals in Europe. Attacks on the United States. And the President's answer is gun control? That's the reason that the country's on edge. Yes, the world is in trouble. But it usually is. The difference is, we have a president who is not asleep at the wheel. He is not at the wheel at all.  He is somewhere else.


KELLY: Joining me now, retired Lieutenant General Michael Flynn, who served as the director of the Defense Intelligence Agency under President Obama from 2012 to 2014. He previously served as director of Intelligence at the United States Central Command. General, great to see you.


KELLY: And so, the White House is pressed on this today, saying is this a lack of leadership. And to hear them tell it, it is all rosy. American leadership has stopped it from being worse than what I just ran through.

FLYNN: Yes. I mean, just watching your lead-in, your audience has to be saying, wow, what is going on. I think that a couple of things. And I'm going to be as brief as I can. The importance of this next national election is huge. Because whoever is the president of the United States is going to deal with an absolute mess on their hands. And it's going to ask for a long time, potentially their entire presidency, so that this next election is huge. When there is a void of U.S. leadership around the world, and I've seen this in many places. But particularly in the Middle East certainly in the last couple of decades. Whenever there is a void of U.S. leadership, it will be filled.

And it will be filled by dictators, by terrorists, by those threats that we face. And we have seen many of them. You've laid out a bunch of them.  And in ISIS, Iran, you know, the Taliban. The al Qaeda that's still out there. All of the problems that we are having with Russia and the dynamic of Russia being involved now. The massive immigration problem and the problems that are coming with immigration in Europe as well as the spread of essentially the Islamic State into North Africa, West Africa. So --

KELLY: Where they operate with impunity?


KELLY: I mean, that setting up universities and had a training jihadist.

FLYNN: So, we have seen these kinds of training events. I mean, this particular ones, I saw a little bit of that video earlier today that was send to me. And I'll tell you, it is -- they are very sophisticated. That particular enemy is a very sophisticated, very cunning enemy. And we have to be smarter about how we're dealing with this problem. I mean, this is not something where, you know, a resolution at the United Nations or a big speech or some poor answers by our spokesperson at the White House, I mean, I want to sit here tonight and I want to cheer for our country and our president.

But I find it really difficult because I feel like we're playing on the strategic, you know, football field, and we're not even in the stadium. I mean, I just don't feel like we're there. I know that we have military forces out there that are doing all they can. A lot of frustration. I will tell you that the lack of leadership right now is hurting our reputation. And this missile issue you talked about with Iran --

KELLY: Yes. What should they have done? Be specific.

FLYNN: Yes, this are test that they are doing. It is not just firing a missile --

KELLY: At a U.S. warship.

FLYNN: It is testing our resolve, it's testing our rules of engagement.  It's looking at us and saying, you know, we're kind of giving you the big middle finger --

KELLY: Uh-hm.

FLYNN: -- and we're going to see what you're going to do about it.

KELLY: What should you've done?

FLYNN: Are you going to punch us in the nose? Well, what we could do is we could put what I would describe as a big red dot on that site that fired that missile and say, and threaten. Threaten to say, we will destroy that the next time you even remotely think about it. That site and maybe a few others will be --  

KELLY: But have you to be willing to do it if you threaten it.

FLYNN: Yes. We have to show strength that's hard power more than the soft power stuff that we are just playing around with. It doesn't work in the real world. It just doesn't work. You know, again, I don't want to sit here and bash on our president. I don't. I really want to help. But we are making poor decisions. We're making -- we're showing the enemies and the threats that we face, we're showing them our weaknesses in such a big way and frankly, it's very dangerous. And I'll finish with one point. On the battlefield when you have -- on the battlefield when you have, you know, an uncertainty, great level of uncertainty, you basically build up your capabilities right now, and you are postured to use them. We haven't done that. We really haven't done that. We put ourselves in such a weak position.

KELLY: You raised an interesting questions about election 2016 at stakes at issue for the nation.

FLYNN: It's huge. I mean, it's huge.

KELLY: Because they are going to be dealing with this problem, Megyn. I mean, they're going to be dealing with this problem. It is going to be left on their doorstep.

FLYNN: And hence we all are.


FLYNN: Great to see you, General.

KELLY: Thanks.

FLYNN: Well, as we mentioned on the top of the show, our sister network Sky News has obtained truly chilling video of a virtual terrorist university in Syria. In it ISIS fighters are seen developing weapons such as heat-seeking anti-aircraft missiles and driverless suicide car bombs.  One British bomb technician said, what he saw on this video kept him up all night.

Trace Gallagher reports from our West Coast Newsroom. Trace?

TRACE GALLAGHER, FOX NEWS CORRESPONDENT: Megyn, this kind of ISIS activity has been suspected but the video is the first concrete evidence that it is actually happening. It comes from Raqqa Syrian, the defacto ISIS capital and it shows what is being called a jihadi technical college where foreign fighters are being taught to wage jihad in other countries. And where ISIS scientists produced components for advanced weapons like remote control cars that act as mobile bombs. Complete with mannequin drivers. Experts say the mannequins have self-regulating thermostats that produce the heat signatures of humans which allows bombs to evade sophisticated scanning machines and temporarily trick security forces. Listen.


MAJOR CHRIS HUNTER, FORMER SPECIAL FORCES, BOMB TECHNICIAN: You have a vehicle driving towards you and there was nobody in it, that would probably result in a cause of action. A long range stand of attack. But if the censor identifies what it believed to be a human being in that vehicle, then potentially that vehicle could get significantly closer before any, you know, counter action would take place.


GALLAGHER: ISIS scientists have also stunned weapons experts by producing homemade thermal batteries for surface to air missiles. Long thought to have been impossible for terror groups without a military infrastructure.  And it doesn't just give ISIS the power to fire new missiles. It allows them to recommission thousands of older missiles thought to be useless.  But while the video is unsettling, it also might be beneficial. Listen.


HUNTER: It gives very, very good insights into where they are now. What they are aspiring to do. And crucially the diversity of the types of threats that we may face.


GALLAGHER: Of course, the big concern is that wannabe jihadist might be eager to attend jihadi tech -- Megyn.

KELLY: Unbelievable. Trace, thank you.

Also developing tonight, an ugly new twist in the debate over taking Middle Eastern refugees. After several young women say they were sexually assaulted by large groups of what police describe as Arab men. And Dana Loesch is just ahead on that.

Plus, just hours ago, a top judge ordered an immediate halt to same-sex marriages for an entire state. Didn't the Supreme Court already decide this? We will see how far this now standoff could go when we will be joined next by a member of the DNC and by the president of the national organization for marriage.

And then, a woman convicted of hiring a hitman to kill her husband now has a new shot at freedom. The dramatic defense of Dalia Dippolito still ahead. Wait until you hear who is representing her.


UNIDENTIFIED MALE: Between now and when it is done, you know, you are not going to have the chance to change your mind even if it change your mind.

UNIDENTIFIED FEMALE: No. There is no like, I'm determined already.

UNIDENTIFIED MALE: You definitely sure you want to do this.

UNIDENTIFIED FEMALE: I'm positive like 5,000 percent sure like --



KELLY: Big story breaking tonight just moments ago out of Alabama. As the top judge in that state takes a dramatic stand against the U.S. Supreme Court decision legalizing same-sex marriage. Judge Roy Moore, the chief justice of the Alabama State Supreme Court ordering state officials today not to issue marriage licenses to same-sex couples. Some officials are following the order. Others are outright ignoring it.

Joining us now, Robert Zimmerman, democratic strategist and a member of the Democratic National Committee and co-founder of Zimmerman/Edelson Public Relations. Also Brian Brown, who is president of the National Organization of Marriage. And we begin with Mr. Brown. Brian, thank you for being here. So, how can the judge do this in the face of the Supreme Court decision saying, gay marriage is legal? Period. In all states.

BRIAN BROWN, PRESIDENT, NATIONAL ORGANIZATION OF MARRIAGE: Well, it really goes to your understanding of whether you believe that the Supreme Court has the right to dictate to the rest of the country key questions. Abraham Lincoln when faced with the Supreme Court bet issued the infamous Dred Scott decision said that it did not. The Supreme Court is not our legislature. It is not every branch of government. And when the court issues an opinion as it did in over the -- which goes against all precedent, which goes against all logic, which even Justice Roberts, Justice Scalia, Justice Thomas, in the defense, said that this is not the constitution, then it's incumbent upon legislators, other elected officials, state government officials, to not just kowtow to the court or else we don't have a democracy anymore.

KELLY: Kowtow? The Supreme Court has the final say on what the law is.  That was established long ago in Marbury versus Madison. But here is my request to you. This is what Governor Huckabee said would and should happen. This is what he was pushing for saying, uhm, to you, U.S. Supreme Court, you don't get the final say, I don't care about Marbury versus Madison and he encouraged state officials to do exactly this, how does this unfold? I mean, aren't we going to have chaos now if states are individually allowed to decide which Supreme Court decisions they're going to comply with and which they are not?

BROWN: Well, I think you are misreading Marbury versus Madison. Again, you're essentially saying that Abraham Lincoln was wrong. Look, we've had horrible Supreme Court decisions that were not constitutional. In Buck v Bell, we had the Supreme Court --

KELLY: There is a procedure for that, you go back to the legislature and you ask them to pass a law.

BROWN: That's not what happened. In the fugitive slave act, Wisconsin and other states simply did not comply. You do get to a point where if tomorrow the Supreme Court said Congress no longer has the right to enact laws, everyone would look up and say, no, we're not going to obey the Supreme Court. So of course in the general course of law, the Supreme Court when dealing with litigants makes a decision that is based on precedent, people give it respect. But if the Supreme Court makes a decision that is so outside the bounds of establishment constitutional law, established president, like Dredd Scott, like Buck v Bell, like Obergefell, then there has to be resistance or you don't have democracy any more.

KELLY: Interesting take on it. Brian, thank you for being here. We appreciate it.

BROWN: Thank you.

KELLY: Up next, Robert Zimmerman. So, Robert, thank you for being here.  You know, you don't have democracy any more if you listen to the U.S. Supreme Court. This is not about gay rights. This is about the rule of law now.

ROBERT ZIMMERMAN, DEMOCRATIC NATIONAL COMMITTEE MEMBER: Megyn, it is about time someone shouted "Live from New York, it's Saturday night." I mean, this man's legal council must be the gang from "Duck Dynasty." I mean, what he is advocating over here is basically overturning our constitution, our constitutional process.

KELLY: Chaos.

ZIMMERMAN: That's right. There is now been the Supreme Court, a federal court, the 11th Circuit Federal Court of Appeals including Alabama have all overruled Chief Judge Moore. And called for and defended the Supreme Court's decision for the marriage equality. This isn't eve about liberal or conservative. It is not even about marriage equality any more. It is respect for our constitution.

KELLY: If they really want to get around the Supreme Court ruling, you can always go back, you can try to get a constitutional amendment passed. You could.

ZIMMERMAN: That's how it works.

KELLY: That would be a legal remedy. Where if the United States citizen say, we don't want gay marriage and if the Supreme Court says, that the existing constitution mandates that it be legal, then you change the constitution, so you say, we don't like that. But what is happening now is they are just saying, no. No, no, this is an out of control Supreme Court.  And where does this end, Robert? I mean, it is not just going to be Alabama.

ZIMMERMAN: Well, actually where it ends is with respect for the rule of law and respect for the constitutional process. Let's remember, the Alabama court of judiciary, not exactly a liberal cauldron of thinking, already removed Judge Moore in 2003 for defying a federal court order.

KELLY: And he said if he would come back as chief justice, he would comply with the law and he would no longer, how did he put it? That he would not do anything to create further friction with the federal courts. Hello, chief judge, this counts.

ZIMMERMAN: Megyn, thanks for keeping it fair and balanced and bringing up both sides. Because I think this will wake up people. It is not about a liberal conservative debate, it is about respect for our constitution.

KELLY: Yes. I mean, the rule of law is what it is. And if you don't like it, you know, there are ways around it. But you have to obey. Robert, great to see you.

ZIMMERMAN: Good to be with you.

KELLY: Breaking tonight, Republican frontrunner Donald Trump just went to a new place with his suggestions that Ted Cruz may not be an American citizen. Chris Stirewalt and Dana Perino are here on that, next.

Plus, there's new fuel in the fiery debate over admitting Mideast refugees after a group of young women is sexually assaulted by what police are describing as a crowd of Arab men.

Dana Loesch is here on that in moments.


KELLY: We have a big story developing tonight reigniting the global debate about what to do with millions of displaced refugees from the war-torn Middle East. It started on New Year's Eve. In the city of Cologne, Germany where large crowds of what police describe as Arab men began sexually assaulting terrified young women. Here is a firsthand account from just one of the victims.


UNIDENTIFIED FEMALE (through a translator): She said dozens of men surrounded her and her female friends, touching them everywhere and stealing their cell phone and another woman's wallet.


KELLY: Now, there are protest over the response from government officials and the mass migration of these immigrants.

Joining me now, Dana Loesch, the host of "Dana" on the Blaze TV. Dana, good to see you.


KELLY: And you've got to love the mayor of the town in which this happened. Mayor Reker. Who comes out and says, these young women could really do themselves a favor if they would just stay an arm's length away from strangers. It is always possible to keep a certain distance that is longer than an arm's length. Really, mayor? Really Henriette? Tell us all about it.

LOESCH: Yes. Megyn, I was completely blown away by the mayor's response.  She is shaming these women who endured this. And you know, it is really hard to stay an arm's length away from someone who is grabbing at you and separating you physically -- manhandling you, separating you from your group. One account that I read, a 17-year-old girl was surrounded by something like 30 men at one point. They were separating her from her friends.

KELLY: It's her fault, she should have run faster?

LOESCH: Oh, I know. Her code of conduct, right? Nothing says, I mean, it's offensive on its face. And it was all done Megyn for the sake of political correctness because German officials didn't want to rock the boat.

KELLY: Well, and this is -- so they are coming out and they're saying that it was a mass sexual assault by hundreds of men, potentially.


KELLY: I have read all sort of different numbers.


KELLY: And now the leader of the nationalist party alternative for Germany says, is this the cosmopolitan and colorful Germany that Merkel wished for?  Because there are concerns that -- and there were reports that at least eight of the suspects who have been detained were all asylum seekers.

LOESCH: Oh, yes.

KELLY: Which is been very controversial in Germany as it is here.

LOESCH: In fact, Megyn, some of the German newspapers are reporting that 14 of the 15 at least so far known or identified are those Muslim migrants.  Those that have been coming into Germany. And this hasn't just happened in Cologne either. This is also happened in Hamburg, it's happened in Stufar (ph), it's happening more and more. It happened in Norway. Megyn, this is like the second or third time in recent weeks that you have had police and you have had elected leaders have to tell Muslim migrants what is acceptable and not acceptable behavior in public. I mean, at some point, are we going to have to have like a little lesson on, can we teach these, you know, coming from a patriarchal society, can we tell Muslim migrants to not rape and sexually assault women?

KELLY: They are still investigating exactly who committed the crime. I'm just reporting what we know about those been detained so far.

LOESCH: Right.

KELLY: But there are also complaints, these women and their supporters in Germany, because there was a basic media blackout of it. So, they've let in a bunch of migrants. They believe at least eight of the detained suspects were asylum seekers. When the crimes are allegedly committed by these guys. The scorn is for the women for not running away faster.

LOESCH: Right.

KELLY: And then the media blacks it out. I mean, you can understand why some of the Germans are little upset.

LOESCH: Well, and Megyn, it sounds so much like what happened in Rotherham, you have you 1400 girls who were raped, who were sold into sexual slavery, who were prostituted, who were abused for a number of years, not even one night by Pakistani men. And local authorities and elected officials, they kept it quiet because they didn't want to disrupt the diversity of the area. It all came down to sacrificing the safety of our girls, the safety of our young women, the safety of adult women for political correctness.

KELLY: Unbelievable. This mayor is going to have to dial it back and she's going to have to come out and issue a public apology. And I don't care if she is in Germany. Dana, good to see you.

LOESCH: Thank you, Megyn. Good to see you.

KELLY: Do you believe that? Up next, could Senator Ted Cruz be disqualified from the presidency because one of his parents is from Canada?  That's exactly the question Donald Trump wanted us to ask tonight.

Dana Perino and Chris Stirewalt will answered it, next.

And then a woman convicted of hiring a hitman to kill her husband now has a new shot at freedom. We will show you how Dalia Dippolito who is caught on camera, appearing to contract a hit on her husband is now fighting back and which well-known KELLY FILE attorney is helping her.


UNIDENTIFIED MALE: Are you sure that you don't know anybody who would want to kill your husband? You wouldn't want to kill him I hope. Not at all.  



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

KELLY: Breaking tonight, Republican 2016 front runner, Donald Trump is raising new questions about whether Senator Ted Cruz can legally be president. The Texas senator was born in Canada to an American mother and a Cuban father who had later go on to become an American which surely everyone think that that means Senator Cruz is an American citizen. For Mr. Trump, this is apparently not strong enough.


DONALD TRUMP, R-PRESIDENTIAL CANDIDATE: How to you run against the Democrat, whoever may be, and you have this hanging you're your head if they bring a lawsuit. A lawsuit will take two, three years.

WOLF BLITZER, CNN HOST: He says he's a natural born citizen because his mother was U.S. born by U.S. citizen and as a result he's a natural born citizen.

TRUMP: Well, I hope he's right. I don't, you know, I want to win this thing fair and square. I don't want to win on this point. What the Democrats are saying, that was he had a passport.

BLITZER: He says he didn't have a passport.

TRUMP: He had a Canadian passport.

BLITZER: He says -- his aide said he didn't have a passport.

TRUMP: Well, I've heard that .


BLITZER: He may have an eligible but .

TRUMP: I think that's wonderful if he didn't.


TRUMP: And I never understood how he did but everybody tells me he had a joint passport.


KELLY: Senator Cruz was asked today if he is worried about this.


UNIDENTIFIED FEMALE: . additional scholar (ph). You have argued before the Supreme Court. Why do you think on the legal basis he is wrong?

SEN. TED CRUZ, R-TEXAS, PRESIDENTIAL CANDIDATE: Oh, look. The legal issue is straightforward. This is not on the U.S. citizen born abroad. He's a natural born citizen.

UNIDENTIFIED FEMALE: But has never been tested. You know full well because you've done it on other issues.

CRUZ: Listen, the Constitution and laws, the United States are straightforward. At the end of the day, this is non-issue.


KELLY: Joining me now is Dana Perino, co-host of "The Five" right here on FNC who served as White House Secretary under President George W. Bush and Chris Stirewalt who is our Fox News Digital Politics editor.

So, you guys -- you tell -- you tell me, because you guys are the political experts, Trump is surging -- no. Cruz is surging in Iowa. Trump wants to win Iowa. He hasn't had much success attacking Cruz on the issues. And so this is a nice little meaty burger for the media to eat and digest over the next few days that takes Cruz off message. Dana?

DANA PERINO, CO-HOST, "THE FIVE": Yes. I think that -- well, here's a thing, so, Donald Trump was asked about this by the Washington Post and then he basically set the cat amongst the pigeons. He's very shrewd and I think that he has grown as a candidate. He's very shrewd. He knew exactly what he was doing. But his biggest defenders now say, "Oh, he was just being asked about it and the media is the one that blew up the story."

Now, Donald Trump realized that may not have been the best thing to do today because he's kind of being ridiculed for raising this question of whether Ted Cruz could actually be president and so he's trying to dial it back. But his biggest defenders would say, "On any other day that he's brilliant. He's a genius." But on this one know the media that's the media's fault and classic.

KELLY: But Stirewalt, there's no accident and what -- and Trump and I -- he had the long plan laid out for Ted Cruz. You need to go into court. You need to get a declaratory judgment. Of course, that's not possible unless you have what's called the case or controversy under Constitution. But that's neither here nor here -- nor there, and you know, generally taking legal advice from your opponent in the race for president. I mean, that's done a lot I hear.


So, you tell us what's really going on here.

CHRIS STIREWALT, FOX NEWS DIGITAL POLITICS EDITOR: The concern trolling (ph) is so delicious and awesome.

KELLY: The love, I feel the love.

STIREWALT: The -- the -- I want to help, I'm here to help, Ted.

KELLY: Right. I love -- I love, Ted.

STIREWALT: I -- I want - I'm worried for him. I hope that this terrible thing doesn't befall him that -- I think there's a big danger for and I also love the repeating, the unsubstantiated charge.

KELLY: Right.

STIREWALT: I'm for -- I heard and Wolf Blitzer sits there and says, "No, no, no."


STIREWALT: It's not true.


STIREWALT: Hear it. Let me -- see there (ph).


KELLY: I hear it.

STIREWALT: I love (ph) him. It that's what I -- that's what I hear.

PERINO: He's just raising question.

STIREWALT: I hear -- I hear -- I think -- yes, exactly. So .

KELLY: Right. So but -- but is this effect, right? Because he -- he is trying to take Ted Cruz out in Iowa. He's trying to say to the Iowans, "He's Canadian for the love of God."

STIREWALT: Smell the maple syrup. It's a .


It's everywhere.

KELLY: He loves the cross (ph).


STIREWALT: The -- Donald Trump would not be the front runner in the Republican polls right now if it were not for, his original birther controversy with Barack Obama in 2011 when he broadly alleged that the president was secret Kenyan who had misled the American people and was going to be removed from office because of all of this stuff. And it was huge. That was actually his entre into the Republican Party.

So, we can't forget about that and that was 40 -- 38 -- 40 percent of the Republican Party at that time thought the president was maybe not born here. So, this is at the root of .

KELLY: But this is a legal technicality he is trying to get at. I mean, if you're a natural born citizen, you can be president. That's -- that's the rule and -- and the Supreme Court has never decided this in the history of the country. But all of the times it has come up suggest Cruz has zero problem here. Zero. So, this is a political move, Dana. This is a political move he's trying to hurt .

PERINO: It is but I think Donald Trump is not wrong and that -- would that -- if Ted Cruz became the nominee, would the Democrats try to gum up the worth by filing (ph) along Cruz?


KELLY: Oh, Allen (ph) is raising is -- is .


KELLY: Exactly, he will. So, I guess, you know.

PERINO: I mean, maybe those issues (ph) are confirmed.

KELLY: They're listening to Allen Griffin (ph) now. All right. I cannot let you go because -- before we talk about the boots (ph).


Right because Marco Rubio is taking a hit tonight for wearing, you know, man boots. I don't know what you call them.

STIREWALT: To keep them (ph) heels.

KELLY: Man heels. What I .

STIREWALT: See the boots (ph).

PERINO: Those are boots.

KELLY: So they gave him .

PERINO: I grew up on a ranch. And it was like -- those boots are just normal boots.

KELLY: So, why is this a deal, Dana? Let me start with you.

PERINO: I guess because Ted Cruz is saying that Marco Rubio is wearing boots that were basically trying to help in his height stature which I mean, I would never do that.


KELLY: Is it about like -- looking like a .

PERINO: Who might have been (ph) .

KELLY: . girly man. Is it a girly man thing?

PERINO: Who among the .

KELLY: Or is it like .

PERINO: No, no. I'm not.

KELLY: Is it a height issue or is it a girly man thing, Stirewalt?

STIREWALT: Cruz wears cowboy boots. They are saying that Rubio's boots are fancy boots. That they are -- that they're -- they are dude boots.

KELLY: They're from Florsheim's.

STIREWALT: Instead of .

KELLY: They are. That's at the Rubio campaign that was forced to come out and say where they got them.


STIREWALT: And so not -- now we've gone from birtherism to booterism and now we have the -- now we have the clear evidence.

KELLY: I don't know. You may say this is not a deal.

PERINO: No, no.

KELLY: But every man I have talked to, is like, "What's with the boots? Why?" What it was -- if they were cowboy boots, I would have gotten to past, yes, see thumbs down. That's it .

PERINO: And so the Ayatollah is quaking (ph) in his boots.


KELLY: Nice. Boots on the ground. That's the topic of the day.


All right. Guys, thank you both.


KELLY: Coming up, a young woman is caught on camera appearing from her explicit words, to try to hire a hitman to kill her husband. She was convicted. The case went national. But now Dalia Dippolito may have a new shot at freedom. And a well-known "Kelly File" lawyer is leading the charge.

Plus, new information revealed on "The Kelly File" last night after a wildly popular new Netflix series raised a serious questions over the murder conviction of this man, Steve Avery. Judge Jeanine Pirro is here on the new revelations and on whether or not Steven Avery may be getting out of jail.



UNIDENTIFIED MALE: Law enforcement despised Steven Avery. Steven Avery was a shiny example of their inadequacies, their misconduct.

UNIDENTIFIED MALE: No one ever intended to do anybody any harm by this. We firmly believe that we have the guilty party at time.


UNIDENTIFIED FEMALE: This is one of the biggest miscarriages of justice I ever saw in 20 years of criminal defense work and thousands of cases.


KELLY: That was a clip from the Netflix series "Making a Murderer" that has gained a lot of attention and some criticism. The series tells the story of Steven Avery, the man on left, and his nephew, Brendan Dassey, on the right. Avery was released from prison after serving 18 years for an alleged rape that he did not commit. Shortly after his release, Avery along with his nephew, was arrested and convicted of murdering a different woman, Teresa Halbach. Now, there are questions about whether he did that crime.

Judge Jeanine Pirro is host of "Justice with Judge Jeanine" and a former Westchester County, New York district attorney, the district attorney. Judge, good to see you.


KELLY: There is such a movement now in this country to get him released from prison, again, just because he is a victim of the system once doesn't mean it happened again, and in fact, the odds of it happening twice, you tell me.

PIRRO: I don't believe in coincidence in these kinds of cases. But I have looked at this case and there is evidence, beyond a reasonable doubt. The 12 jurors unanimously believed, that this guy, Avery, killed the victim in this case, a 28-year-old woman. There is no question he called her. She was at his junkyard. She was there to take a picture. He said she left. But the only people to see her were the people who were at his place.

Her bones are found near the house. Her DNA is in on a bullet fragment in the garage with her blood. His DNA is under the hood of her car which was removed and placed in a secret area of the junkyard. Look, there is evidence here. And Megyn, it's like anything else. If you make a decision that you're only going to present one side of the story, everybody is going to start saying, "Oh, my gosh, this guy is not guilty." I'd believe it too if I saw on Netflix, which is why there are more than 200,000 people asking for this guy to be pardon.

KELLY: And this apparently started not as a documentary meant to be fair and balanced presentation, but as -- as defense submission and only one -- this is what the prosecutor said, that only once Netflix got interested did they start to pepper in some more facts from the other side, so it could appear balanced, but that -- that does taint the piece a bit, does it not?

PIRRO: Well, it clearly taints the piece because when you look at the evidence that was not presented in this documentary as they call it, then you realize that what they did was trying to sway their audience. This isn't a documentary. I don't believe it is a documentary. Where is the victim's family? Where is the, you know, the sympathy for them? There's all kinds of sympathy for Avery and his family.

KELLY: But I -- I asked him last night, you know, the prosecutor, why -- or the defense attorney, I asked him, how -- how -- if your guys didn't do it, why -- why were her bones on the property? He said, we believed they were burned someplace else and that the -- that the campfire they set in the backyard could not have burned the bones in that way.

PIRRO: Oh, that's hogwash. You could burn those bones the way they were burned 20 feet from where this guy Avery lived. And to follow that line of reasoning, Megyn, you would have to believe that the police, the prosecutors, the crime lab technician in two different counties. Remember, there were two counties involved here.

All got together and said, "Let's kill this 28-year-old woman and blame it on Avery and let's move her bones from here to there," when everyone knows, she was that junkyard doing her job. That she had said to her boss, the guy gives me the creeps, I don't want to go back. She was afraid of him. He called .

KELLY: That he had called her.

PIRRO: . her. He called her and he used star 67 to cover up that he was calling her and then calls her to make believe on a direct line that she never came and he was trying to get her there.

KELLY: The other thing that is -- that is disturbing is his talk of torture, a building a torture chamber while he was in prison serving a wrongful sentence. We have the video? Let me see it, a video.

Oh the handcuffs that were introduced at trial. I'm talking about his statement in jail that he wanted to build a torture chamber.

PIRRO: He described to other prisoners the fact that he had what he called a dream torture chamber. He actually drew it for another inmate of what he wanted to do to young women. He wanted to rape them and kill them. And isn't it interesting that here is a guy who gets a young woman that he answers the door apparently, you know, in just a towel, and she is creep (ph) out by him. He lures her to his property under the guise of I need you to take a picture of one of the vehicles of my junkyard for this magazine to sell it, and she ends up burned in his yard 20 feet from his house.


PIRRO: Now, I don't believe in coincidence and you've got a jury, you've got a Pella Court, the highest court in Wisconsin have all agreed that the evidence was solid, that the case was properly tried. And whether it's, you know, anyone of a number of cases as you can claim anything, but it's about facts. And if there are new facts here, a court can certainly make a decision .

KELLY: That's right.

PIRRO: . to reopen.

KELLY: Governor Walker has said he -- he .

PIRRO: Oh, far (ph).

KELLY: . did not plan on pardoning him and that's where they need to go, to the governor, and other thing is, before you petition to get somebody pardoned, don't you have an on obligation, go, read the transcripts, once you read the full confession, take a deep -- deeper dive on your own into the facts of this case as opposed to just taking - and I'm not disparaging the filmmakers. But before you ask for somebody to be let out of prison, you better be damn sure you are in support of that. Judge, great to see you.

PIRRO: Good to see you.

KELLY: She is to put them all prison because she is the one who put bad guys in prison. We do have the filmmakers on this show tomorrow. So we'll talk about some of the issues.

Well, just ahead, a woman convicted of hiring a hitman to kill her husband, certainly how it sounded on the tape, now has a shot of freedom. And wait until you hear which "Kelly File" favorite is representing her. That's next.


KELLY: Unbelievable developments tonight, in the case of Dalia Dippolito. You remember -- may remember this one. She was caught on camera by police back in '09 hiring a hitman to kill her husband. That's how it looked and then faking tears. That's also how it looked. When confronted at the staged murder scene by the cops.

Dippolito now claims the whole thing was a failed attempt to land a gig on reality television, which is actually possible because this is 2016. Her conviction was thrown out and now her famous lawyer is asking that she not be retried and that the entire case be dismissed.

Trace Gallagher live in our West Coast Newsroom with the traitor who represents -- no, I didn't mean that with her representation of her story. Trace?

TRACE GALLAGHER, WEST COAST NEWSROOM: In fact, we just spoke with friend of "The Kelly File" Mark Eiglarsh, she was now representing Dalia Dippolito and filed the motion to dismiss. He's accusing police of entrapment. A judge could hear the motion within days but experts say Eiglarsh may have a tough hill to climb considering his client was caught on tape taking a contract out on her husband and hiring a hitman who turned out to be a cop. Watch.


DALIA DIPPOLITO, ACCUSED OF HIRING A HITMAN TO KILL HER HUSBAND: No, no changing -- no, there is no like -- I'm -- we're talking about -- about .

UNIDENTIFIED MALE: You definitely want to do this?

DIPPOLITO: . I'm confident like.


DIPPOLITO: . 5000 percent sure.


GALLAGHER: A jury convicted Dippolito and under three hours but on appeal, the judge ruled the jury was improperly selected. Dippolito is now under house arrest waiting for a new trial. And speaking out for the first time, she tells ABC's "20/20" that the whole thing was a stunt, a hoax and that she and her husband were in cahoots wanting to upload the video to YouTube to get their own reality show. Listen.


DIPPOLITO: They're saying (ph) now that they could do it. If -- if you're watching these people do it, there is no reason why, you know, we can't do it. We look better than those people. And why not?


GALLAGHER: Yes, in other words, the whole thing was an act. When she was told by police her husband was dead, she was acting when she later seemed shocked that he was still alive, again acting. Dippolito said she is sweet, understanding and compassionate who would never resort to murder. Listen.


DIPPOLITO: All the headlines, the person they're describing, it's definitely not me.


GALLAGHER: And the husband has vehemently denied that he was in on it. Megyn?

KELLY: Oh, that's a relevant fact there at the end. Trace, thank you. Joining me to discuss it, former federal prosecutor and Fox News Legal analyst, Liz Wiehl, and Kent Zimmerman, a contributor at the National Law Journal. Great to see you both.


KELLY: We love, Mark and also Brian Claypool, friend of "The Kelly File."


KELLY: . is the other -- is the other look.

WIEHL: Traitor (ph), yes, yes, we love both.


KELLY: But they are -- they are moving to have the entire case kicked out based on this reality TV.

WIEHL: Based on- yes.

KELLY: If there was reality TV and the husband was in on it, why not just tell the cops?

WIEHL: Exactly. Hey .

KELLY: Don't arrest her. This is not real.

WIEHL: Probably a hoax (ph). But he didn't say that he has through this whole thing. By the way she says on the camera, 5,000 percent but I want to do this. She gives over to the -- to the guy now who says, "Oh, I didn't have any part of this," $1,200, who could buy a gun for this. She wants this guy .

KELLY: That was all acting, as if they're going .

WIEHL: Yes, that's where $1,200 part of it. That's why all --- right.

KELLY: We have to tell Mark and Brian, she's not that good an actress.

WIEHL: Why .



KELLY: And I give them -- I give her the jury at home exhibit A of her attempting to cry when the cops, who knew he wasn't dead, and knew she knew that she set it up, look. She's trying to fake her upset at his death, but he's not really dead. See. Not a tear in her eye, they said, Kent.

ZIMMERMAN: Listen, the facts are terrible in this case .


ZIMMERMAN: . for her. This is Lisa's dream as a prosecutor. But here's what we all know. Criminal defendants, no matter how bad the facts, they deserve the right to due process. They deserve for the police to fall .

KELLY: Beyond (ph) .


ZIMMERMAN: . well hold on a second.

KELLY: We all know that.


ZIMMERMAN: The motion .

KELLY: This is how they're going to get that woman off.


ZIMMERMAN: . the motion -- the motion to dismiss is what that's issue right now and that motion is not about whether or not to do she did at the motion. It's about whether the police pressured the confidential informant .


ZIMMERMAN: . to get her. It's whether the police .

KELLY: Now we're on to something.

ZIMMERMAN: . suppressed evidence in which she said, she didn't want to follow through on this according to defense.

KELLY: Oh, so, no that -- that will depend (inaudible).


ZIMMERMAN: Absolutely.

KELLY: There you go along .

ZIMMERMAN: That's -- that's what the .

KELLY: . there you go -- that's where you need to go, the police.

WIEHL: And boyfriend is right there going along with this and say, he's not saying that he was -- a consent he was coerced into doing this about saying that .

KELLY: Because if they can prove that they pressured that alleged hitman .

ZIMMERMAN: Absolutely.


KELLY: . to entrap her.

WIEHL: . no, not that -- not entrapment at all. She would have -- entrapment if she would have done the same thing. It didn't really matter whether there were cops there or whether someone else there, you know, kind of cajoling or into the -- he would have done that. They cajole that intent, 5,000 percent? Here's $1,200 .

KELLY: They seemed to be .

WIEHL: . and Megyn, at photo of the husband by the way to make -- here's the -- there's the .

KELLY: Oh, yes.

ZIMMERMAN: Hold on a second there.


WIEHL: That is a murder .


KELLY: They were just the leave the house at 6:00 a.m. Go to the gym and we'll have him dead by 6:30.


ZIMMERMAN: They have .

KELLY: 6:00 a.m., she's like you're oh .


ZIMMERMAN: There were 500 phone calls .

KELLY: Come to mine.

ZIMMERMAN: . from the defendant to the C.I. that the police fail .

KELLY: What's the C.I.? Confidential .

ZIMMERMAN: The confidential informant.


ZIMMERMAN: That police failed to monitor or record in those phone calls according to the defense. He tried to get out of doing this.


ZIMMERMAN: She didn't want to follow through with it and she was pressured by the C.I. who was pressured by the police.

WIEHL (?): No.

KELLY: Did she add up on all that?


ZIMMERMAN: The defense back at the police .


KELLY: Did that get her off?

WIEHL: No, it doesn't. They're having all those phone calls to set the darn thing up. It takes a little logistics. What are you going to do it? How they're going to look? What's the story (ph) about it?

ZIMMERMAN: This is about police misconduct from the defense's angle and that is their fault to take this pay (ph).


KELLY: Does it matter that the cop -- the serious cop was filming this whole thing while it happened? The defense team .


ZIMMERMAN: It sure what -- it looks like .

KELLY: . may have said about that.

ZIMMERMAN: . the police over there .

WIEHL: All right. Much love (ph) that.


ZIMMERMAN: . were more interested making good TV for cops and actually trying this case. Not only they did they set it up .

KELLY: They did.

ZIMMERMAN: . for cops.

KELLY: They did.

ZIMMERMAN: They set it up a fake murder scene.

KELLY: The cop's victim (ph).

ZIMMERMAN: They put it on YouTube making it very hard for her to get a fair trial.


KELLY: He -- and look at him.

WIEHL: He's advising her right now.


WIEHL: He's trying to get this murder -- well, attempted murder.

KELLY: No, just kidding, I know what she is.

WIEHL: And fake -- fake scene.


WIEHL: It was a fake scene because they had to -- they had to get her saying, "Why?" so that was - that's evident.


KELLY: Can we see -- can we see the crying one more time here. Trying to do that.



KELLY: I want to see it one more time. We don't have time. We want to show to you after the break -- right after the break and going to let this play out and you decide. Don't go away.


DIPPOLITO: Oh, no, no.



KELLY: So, the bad news for this woman is, she knew Julia Roberts. The good news is she has a great lawyer. Good luck, Mark. I think. Good night, everybody.

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