Could a Cruz-Kasich alliance backfire?

On 'The Kelly File,' Herman Cain provides insight into the strategy


This is a rush transcript from "The Kelly File," April 25, 2016. This copy may not be in its final form and may be updated.

MEGYN KELLY, HOST: Breaking tonight with less than 10 hours to go from the first votes in the next critical primaries, GOP frontrunner Donald Trump is blasting his rivals as pathetic as they join forces in an attempt to block his path to the Republican nomination.

Good evening and welcome to "The Kelly File," everyone. I'm Megyn Kelly. We are now just hours away from the battle for the east as voters in Pennsylvania, Maryland, Delaware, Connecticut and Rhode Island head to the polls. While Donald Trump is expected to do very well tomorrow night, that is not what people are talking about tonight. Hours ago, Trump unloading on Senator Ted Cruz and Governor John Kasich. Yesterday their campaigns announcing that they will work together to defeat Donald Trump in some of the upcoming primary contests. It will start next week's Indiana primary where Governor Kasich is helping clear the way for Senator Cruz to take Trump head on. Here are both of the candidates today. Listen.


SEN. TED CRUZ, R-TEXAS, PRESIDENTIAL CANDIDATE: The John Kasich campaign announced that they are pulling out of Indiana. Leaving this as a direct one-on-one choice for the people of Indiana between our campaign and Donald Trump.

GOV. JOHN KASICH, R-OHIO, PRESIDENTIAL CANDIDATE: I don't see this as any big deal, other than the fact that I'm not going to spend resources in Indiana. He is not going to spend them in other places. So what?


KELLY: Tonight, Donald Trump with a response of his own.


DONALD TRUMP, R-PRESIDENTIAL CANDIDATE: Lying Ted announced that he can't win by himself. He cannot do it. You know, he is a choker. He cannot do it. So he said let me form a partnership which I call -- what do we call it? Go ahead. Go ahead. What do we call it? Let me form, it's called collusion, folks.


KELLY: In moments, we will be joined by former presidential candidate Herman Cain and editor of Ben Shapiro. But first, on how this strategy will take shape over the coming weeks.

Chris Stirewalt who is our Fox News digital politics editor. So, I mean, at first it was like I hate that guy. I'm not going to work with him. And now it's like Cruz and Kasich sitting in a tree.


I mean, it's finely dawned on them that, I mean, Trump has a point. They cannot win on their own.

CHRIS STIREWALT, FOX NEWS DIGITAL POLITICS EDITOR: Well, that's true. And these kinds of things aren't entirely uncommon. We remember when Donald Trump colluded. It's not collusion but when he teamed up with Chris Christie to stuff Marco Rubio in a locker in New Hampshire which was an enormous help to Trump.

KELLY: He was little so it was easy.

STIREWALT: Just put him in there.

KELLY: All right. But this kind of stuff happens. The question is, is it effective? Certainly there were times earlier in the cycle where candidates could have teamed up. If Jeb Bush, my God, at any number of points had a chance to have done something effective in this way, Rubio might have had a chance at an earlier point. They are down to the final pairing, is there enough them in Cruz and Kasich together? Are there enough votes left? There is two issues delegates and momentum. Trump wants the momentum. He wants the narrative that says he can't be stopped.
And he is fighting a crooked, corrupt, disgusting roach-food eating Republican Party and that -- and what Ted Cruz and John Kasich have to worry about is, survive that narrative, get as many delegates as you can and fight them on the --

KELLY: Speaking of the food eating issue. I want to show the viewers what you're talking about because Donald Trump came out today and hit John Kasich in a very interesting way. Watch this.


TRUMP: I have never seen a human being eat in such a disgusting fashion.


I'm always telling my young son Barren, and I'm always with my kids. All of them. I would say, children, small little bites. Small. This guy takes a pancake and is he shoving it in his mouth. It's disgusting.



KELLY: This was a reference to Kasich earlier. You know, the viewers can make up their own mind about whether he ate appropriately. But what does this say about the race at this point, Stirewalt?

STIREWALT: That we are all taking crazy pills. I don't know. What does it say about the race at this point?

KELLY: Nothing.

STIREWALT: It's nothing. But it is a remarkable thing to say. And Kasich is going to miss out on all the corn on the cob that he could have had if he went to Indiana.

KELLY: Let's be thankful for that.

STIREWALT: Well, he will miss out on that. And the Cruz will have to skip out on the green chilis in New Mexico and whatever they do --  

KELLY: And that's the deal. That's the deal.

STIREWALT: That's the deal.

KELLY: Cruz is getting out of New Mexico and what's the other state?


KELLY: And Kasich is getting out of Indiana. And Indiana, how much does that help Cruz in Indiana because Indiana it's winner-take-all by state and Congressional district which I don't really understand that. But basically you want to win it and you don't want John Kasich to be in it.

STIREWALT: Not only do you want to win it, but given the relatively few number of Congressional districts there, a good performance turns into winner-take-all, winner-take-all in pretty fast fashion. Most importantly though, Cruz needs to take as many delegates of the table as he can from Trump right now. Now, if their partnership, it's not really a partnership, it is a non-aggression pact between the two of them. It's still the snake and the mongoose. They just have agreed that they have a mutual enemy that is more threatening to both of them.

KELLY: Uh-hm.

STIREWALT: If it survives through there, they do this well and effectively use this by strategic campaigning in California, to deny Trump the necessary number of delegates, he is going to probably going to be short. They need to hold him maybe more than 100 back. Right now he is on track to be 65 or 70 back. They need to up that number so that he is far enough back so he can't go over the top with bound delegates. That is the delegates play. But the problem is, by teaming up, it looks too good for Trump and the current establishment media narrative which is, Donald Trump, Republican Party, look at these crooks, crooks, crooks, crooks, crooks.

KELLY: Uh-hm. But they had no other chance. They had to do something.


KELLY: But now, your reference to the snake and the mongoose is interesting. Because you I know are a parent as am I. And all I could think of when you said that was, you know, the book Little Bee. Little bee, Little bee, why do you flee? Because there is a scary snake chasing me. And so I want to go to the mongoose is chasing the snake and ultimately the lion is the one -- anyway, check it out. It's a great book.


Great to see you, Stirewalt.

STIREWALT: Good to see you, too.

Joining us now, Herman Cain, former presidential candidate and a Fox News contributor. And author of "The Right Problems: What the President, Congress, and Every Candidate Should Be Working On." And Ben Shapiro, the author of that article joins me now. He is editor-in-chief of of an article critical of Trump for complaining about this plan. Good to see you both.

So, Herman Cain, tell us why this is not a good idea for Cruz and Kasich.

HERMAN CAIN, FORMER PRESIDENTIAL CANDIDATE: It's not a good idea because sometimes divide and conquer works. But, in politics, it may not and we really won't know until after the primaries tomorrow and the primaries a week from tomorrow. That's when we will know. But, here's what this alliance does recognize. It recognizes that John Kasich and Ted Cruz cannot get the nomination. But it does not recognize that it is still possible that Donald Trump could get it. I think they fear that more than they worry about trying to force a contested convention.

KELLY: Ben, Trump says this is evidence of corruption, the corruption he's been telling his supporters about for months.

BEN SHAPIRO, EDITOR-IN-CHIEF, THE DAILY WIRE: Well, I really appreciate the babe in the woods routine from Donald Trump, the guy who said that he spent 30 years essentially bribing Democrats and then cut a deal basically that Ted Cruz and nonaggressive pact with his own with Ted Cruz for several months. And then he cut nonaggression pact with Ben Carson and then he cut one with Chris Christie and then he cut one with Mike Huckabee and then he cut one with Rick Santorum. So, for a guy who, you know, the art of the deal master and now complained and pretend suddenly he has found honesty.

Suddenly he's found that the political process requires honor. The reality here is that Ted Cruz has been begging John Kasich to get out of the race for (audio gap). All this really does is it gets John Kasich out of the race in states where Cruz would do best and gets Cruz out of the race in a states where Kasich would do best. So, the idea that it's both of them taking down Trump, the truth is that, what it's really is, is Cruz is saying to Kasich, you won't get out, fine, let's acknowledge realities. As long as you are not going to get out and as long as I'm not going to win the nomination outright, we ought to split the states we do best in.

KELLY: What about that, Herman Cain, the issue of Indiana because if Cruz is handily defeated by Trump in Indiana, he is in a whole lot of trouble. But if he can win that state it may actually change the course of this election.

CAIN: It could be a game changer. It could be a game changer if Trump wins big in Indiana as well as Oregon and the other states where they have sort of split their resources. It could be a game changer and it will give Trump that momentum Chris referred to in the previous segment. So, I think that it's a calculated risk, obviously. But everything in politics is a calculated risk. So far, the opposition to Trump they have thrown everything, except the kitchen sink against Trump and it has not worked.
It has simply empowered people who want to support Trump. I expect the headline on Wednesday to be kitchen sink is coming down the pike to Donald Trump. That's the only thing they haven't thrown at him yet.

KELLY: Well, Tuesday night, tomorrow night he is expected, Trump, to do very well here in the northeast which they are calling the Acela Primary after the high speed train and services.


KELLY: These states, the question is, what happens after then? And that's what Kasich and Cruz are looking to. But Ben, I know that you are saying your article, there are three reasons why this deal is perfectly legitimate in your view. The first one is that Trump does not have majority support.
What do you mean? Why does this make this deal perfectly legitimate?

SHAPIRO: We got 37 percent support. And again, unless the other side of aisle actually, quote-unquote, "colludes" and gets the other, and puts one anti-Trump candidate out there, we never get to see exactly how many people are against Trump. So, Trump can complain all he wants. He hasn't won a majority. There is no world where he has the majority and support in the popular vote. And while he complains about the process being rigged, he's got 37 percent of the popular vote and he is getting 50 percent of the delegates. So, it is not obviously rigged enough to stop him.

And beyond that, you know, Donald Trump can complain all he wants about losing the pledge delegates. The reality is this, if he comes up short and then he doesn't get enough on pledged delegates, that is his own fault. Trump has his campaign manager out there, Paul Manafort trying to tell delegates that he can be a different guy, he can suddenly strip off his mask and he will be Ronald Reagan in the flesh. The reality is, delegates don't believe this and Donald Trump is having a tough time convincing them of it. It makes it more difficult when you spend most of your day ripping on how John Kasich eats pancakes while he dust your face of Cheetos before you do TV appearances.

KELLY: Oh, come on! Stop that. There was a big pancake. That was a big bite.


You know, it's not that -- tinier bites are more lady like or gentlemanly. We can all agree on that. And, you know, even his critics should be able to allow for that.

Herman, let me ask you about that point that Ben has made about, what Paul Manafort said to the delegates or to the party leaders down in Hollywood, Florida. Because that made a lot of news that he's telegraphing that Trump two people. That he has been playing a part. What say to that allegation?

CAIN: He is not telegraphing that Trump is two people. This is just a sound bite that Ben and others want to pick up on. That's not the case. What Manafort is basically saying, is that one, Donald Trump has been running a wholesale campaign appealing to the masses ever since last June. But he is also saying that Donald Trump realizes he is going to have to do some more retail politics with the delegates as we go forward. So, that's not two people. That is a businessman realizing the reality of the situation that he has to appeal to some of those delegates. And I believe that he is going to be able to do that despite all of the noise that Ben is referring to along with a lot of the other people.

KELLY: Ben, I know the other two points that you have raised in defense of this alliance is, number one Trump made alliance with Cruz himself which you've mentioned. And the third point is, you say Trump does not have the capacity to reign it in, to be sort of the more presidential version of himself that Manafort was suggesting to the party he can be. Why do you say that? Because Trump has -- he has been controlling himself over the past few weeks. Wouldn't you agree?

SHAPIRO: If this is Donald Trump controlling himself, I cannot wait to see what he looks like uncontrolled. I mean, he -- it back from a spinal tap 11 to his spinal tap 10.5. Again, you just played a clip about five minutes ago of him talking about John Kasich eating pancakes and then yesterday at a rally, he did a full on impression of what he would look like if you were presidential. And he kind of staggered on the stage and did an impression of Hillary Clinton. Listen, it's funny stuff. But is this the kind of stuff that people expects from a commander-in-chief? Is this the kind of stuff that makes delegates comfortable, to make him a commander-in-chief. I highly doubt that especially given the way that delegates are splitting right now. Delegates are splitting disproportionately against Trump which is surprising given the fact that Trump has basically threatened riots at the convention if they don't give it to him.

KELLY: But Herman, do you think it his sense of humor that has got him in trouble with some of these groups or the more incendiary comments he has made that, you know, we all have heard about at this point.

CAIN: Here's the thing, Donald Trump has not gotten himself in trouble being Donald Trump. And to talk about his tone, well, last time I checked, he is leading in delegates. He is favored to win all those primaries tomorrow and he might just pull it off and get 1237 delegates. This game is a long way from over. So, all of this political noise about what Trump said, what he did, I think people appreciate two things. Many things in Donald Trump. Number one, they appreciate his honesty and integrity and they appreciate his sense of rumor. But every time he says something that might be considered funny, well, some people who is anti-Trump, they try to turn it into a frenzy and it simply is not working.

KELLY: There had been some controversial. But I got to ask you before I let you go quickly, Herman. Seriously when Kasich ate that pizza with a fork and a knife, as a pizza man yourself, that had to be a problem for you. That's when you went chief Trump, wasn't it? That was the thing that did it.

CAIN: No. No comment.


Look, I don't care whether you -- I don't care whether you eat pizza with a fork or whether you eat it New York style and you told it and you take a bite. It does not matter if it's good pizza.

KELLY: Amen. Good to see you guys. Both of you. Thank you.

CAIN: Thank you.

KELLY: So big news today as Donald Trump has agreed to sit down with yours truly for an interview in my upcoming FOX broadcast network special. This is big news. This following our heart-to-heart earlier this month at Trump Tower which he agreed to it at my request. The GOP presidential frontrunner will be a guest on "Megyn Kelly Presents" or it might be "Megyn Kelly Presents." We will see. A prime time event that airs on May 17th, that's a Tuesday night on FOX TV, the "American Idol" FOX. The Empire FOX. Not the Fox News Channel. Big Fox at 8:00 p.m. Eastern Time.

Extended portions of that interview that you will not see over on big FOX will then appear over here, right here on "The Kelly File" the very next night on the FOX News Channel. I look forward to what promises to be a compelling and wide ranging sit-down.

Well, Hillary Clinton says she has a battle plan ready in case Donald Trump tries to soften his image in the general election matchup. But there is new polling tonight that could send and shivers down the spine of Democrats as well as some Republicans. Ben Domenech and Tucker Carlson on what the polls shows on whether which one to believe.

Plus, in a touching display of patriotism, a group of middle school students begins singing the national anthem during a visit to the 9/11 memorial. So, why were they ordered to stop in the middle of the song? "The Kelly File" gets answers.

And there is some 200,000 ex-felons, including murderers and rapists getting their voting rights concerned. There are growing concerns that this has nothing to do with equal rights and everything to do with helping Hillary Clinton. Judge Andrew Napolitano explains why he says there is no way you can ignore the politics at play.


GOV. TERRY MCAULIFFE, D-VA.: I think some of the languages come out of the Republicans, I would tell them to be very careful on how they frame this. Very careful their rhetoric.



KELLY: Breaking tonight, two national polls delivering mixed signals for Hillary Clinton as she prepares for a potential general election matchup against Donald Trump. In one poll Secretary Clinton holds a sizeable 11 point lead over Trump. But another suggests a much tighter race with Clinton ahead by just three points over the GOP frontrunner. This as Mrs. Clinton's camp releases a new political ad targeted not at her democratic rival Bernie Sanders but at Donald Trump. Watch.


TRUMP: I will be changing very rapidly. I'm very capable of changing to anything I want to change to.

At the right time I will be so presidential, you will be so bored.

They're bringing drugs. They're bringing crime. They're rapist.

I will use the word anchor baby. This is a country where we speak English, not Spanish.

HILLARY CLINTON, D-PRESIDENTIAL CANDIDATE: One of my personal heroines Maya Angelou is that, when someone shows you who they are, believe them.



KELLY: Well, for his part, Mr. Trump doesn't seem so concerned about his standing versus Secretary Clinton or that of his GOP rival John Kasich for that matter who right now beats Hillary in most head-to-polling, watch.


TRUMP: He keeps talking about how he does with Hillary Clinton. He hasn't had one negative ad yet. When they put in the first negative ad about him. He is going to collapse like a rock. Wait until you see this. Boom. Boom. You will see. You will see. I will beat Hillary Clinton, crooked Hillary. I will beat her so badly.


So badly. So badly.


KELLY: Ben Domenech is publisher of The Federalist. Tucker Carlson is editor-in-chief of "The Daily Caller" and co-host of "Fox & Friends Weekend" right here on FNC. Good to see you both.

Ben, effective ads?

BEN DOMENECH, PUBLISHER, THE FEDERALIST: I think it's an okay ad. I think that she is obviously shifting to this general election conversation and anticipating that Trump is going to soften his message as he gets closer to the Republican nomination. You know, for my part, I don't think we actually see that yet. It was interesting listening to you talk to some of your prior guests about this. From my perspective Megyn, being presidential actually is not so much about the tone but it is about the message. In the sense that at this point in virtually every presidential campaign in the past you see a nominee as they get closer and closer to the mark that they need to hit. Recognize that they need to win over the supporters of some of their closest competitors.

They do so by extending olive branches, by inviting people, who supported people like Ted Cruz or John Kasich. Into the fold by saying, hey, I'm looking to represent the whole party here, not just the people who backed me. That is not what we're hearing from Trump thus far. And I'm kind of surprise. I would have thought that he would have shifted to that already.

KELLY: Uh-hm. Tucker, what did you think of the ad?

TUCKER CARLSON, THE DAILY CALLER: I emphatically agree with Ben that it's about the message tone. And still a contested primary. Maybe that's why it is so bitter. I thought the ad was ineffective. There are ways to attack Trump. You could say he is reckless, he is a no one off. Those are fair criticism. This doesn't make them. It doesn't make any argument actually. It basically says he says outrageous things. Well, that's demonstrably true like you were voting for them because of that. And he says he changed his opinions.

Well, he brags about that. So, it's hard to expose a man who exposes himself as often as Trump does. And it also assumes that you are appalled by his positions. Now, people's attitudes have changed a lot and have changed an awful lot in this year. Is it really so crazy to say surveil extremist mosques. We have been doing that since 9/11. Is it insane to claim illegal aliens bring some crime? Well, actually they do. So, she could win if she made an argument. But saying this game is prima facie a racist isn't really a rebuttal against what Trump is saying. It only wins people who are already on your side.

KELLY: Already with her.

DOMENECH: -- Effective.

CARLSON: Right. Ben, let's talk about these polls, because there is one that shows her 11 points ahead of Trump in a head-to-head matchup. That's a Suffolk University poll. And then another one George Washington University battleground poll that shows her only three points over him,
which is about as tight as we have seen it. What do you make of it?  

DOMENECH: You know, the battleground poll is a bit of an outlier. Most of the polls that we have seen have shown, you know, Trump in the high singles, to even the double digits in terms of lagging behind Hillary. It is a poll that should encourage the Trump camp. At the same time, it does have a couple of aspects to it that seem a little off kilter in the sense that they show a significant Republican advantage when it comes to economic ratings. That's not something that we see across other polls. And so it's really difficult to see -- say whether this is going to be the kind of beginning of a trend that continues.

One thing that we have to recognize about this is that we are in new territory. We are with two potential candidates who are in the most unpopular ratings amongst all sorts of different segments of the electorate than we have ever seen in the modern era. And because of that, it's very unpredictable. To Tucker's point, you know, the idea that Trump can be criticized because he has changed his positions a lot. Hillary Clinton is the queen of that and has been through her entire career. It's not like she is can make the argument that you can look at her where she stands and trust what she is going to say any more than you could Donald Trump.

KELLY: Tucker, what do you think -- I mean, at this point, Trump obviously see what Kasich and Cruz are now doing to try to stop him from getting the nomination.


KELLY: He needs to consolidate his support. You know, he needs to get more than the core Trump supporters to come over to team Trump.


KELLY: But the question is how? How does he do it?

CARLSON: I think it's tough. I mean, I think some of these gaps are unbridgeable. Once you call someone a Nazi it's kind of hard to go back and say, yes, but you know, you are Nazi. I mean, it is sort of a Rubicon

KELLY: Sure.

CARLSON: -- that a lot of his critics have crossed. That's right. And I don't think they can come back. They have declared him immoral. And so, it would be a stain on their own moral record were they to support him. So, I think the Republican Party is broken and it may split down the line. But really his argument, the only good argument for Trump, the real argument is he is probably not likely to beat Hillary but he is the only Republican running who even has a shot. Because America has changed a lot.
Everybody knows this because of immigration. The demographics are just strongly in favor of the Democrats.

KELLY: Uh-hm.

CARLSON: And yet --

KELLY: That's what Kasich is saying. Kasich is saying, that's why you should choose me even though he has lost what they would be calling one in 38.

CARLSON: Look, this is not endorsement of Trump obviously but that is just a silly argument. I mean, you have had all of these elections and Kasich has won only his home state.

KELLY: Uh-hm.

CARLSON: I mean, so, in some theoretical head-to-head, six months out, sure, he does fine. But that's not reality. I mean, the truth is, Trump in a dynamic, insane year like this one, perhaps the Trump campaign could just scramble the map and pull off something really unexpected. It's impossible to see any other Republican doing that. Now, I'm saying that really as objectively as I can.

KELLY: Great to see you both. I have got to run.

DOMENECH: Thank you.

CARLSON: Thanks, Megyn.

KELLY: There is growing concerns tonight that Hillary Clinton could find herself in the White House with the help of some ex-felons as a governor with very close ties to the Clintons restores voting rights to some 200,000 ex-cons, murderers, rapists and others just before the election. Judge Napolitano is here next. He says there is no way you can ignore the politics at play here.

And then, a star college athlete, 3.67 grade point average kicked out of school for consensual sex. He didn't complain about it. The woman he was having sex with didn't complain. But a friend of that woman complained. We'll ask our legal panel what the chances are that this young man will be successful in suing his school and the Obama administration, which helped put him in this situation.


KELLY: Well, new concerns that one governor's push to restore voting rights may actually be a ploy to get Hillary Clinton into the White House.

Virginia governor Terry McAuliffe who was Mrs. Clinton's 2008 campaign chairman just restored voting rights to more than 200,000 ex-felons in his state. Why did he do that? Trace Gallagher is live in our West Coast news room, Trace?

TRACE GALLAGHER, FOX NEWS CORRESPONDENT: Hey Megyn, you should know these armed robbers, rapists and murderers would be allowed to do vote even if they didn't pay their court fines or restitution to their victims.

Governor McAuliffe says he's rectifying Virginia's long sad history of suppressing African-American voting power. One in four black residents of the state has been banned from voting because of restrictions on felons.

By using the power, the governor circumvented Virginia's republican run legislature and is now being accused of providing a blatant favor to his old friend Hillary Clinton, trying to give her a crucial edge in a swing state.

So far, this election season black voters, especially in the south, have turned out in very large numbers for Hillary Clinton. Here's McAuliffe on ABC this week, watch.


MCAULIFFE: Tell the republicans quit complaining go out and earn these folks right to vote for you. Go out and talk to them.


GALLAGHER: Even republicans who support giving some felons back their right to vote say McAuliffe went too far by including violent offenders. Back in 2010, then democratic Virginia Governor Tim Kaine also wanted to restore voting rights to felons but thought that legally it had to be handled on a case-by-case basis.

Writing, quoting here, "A blanket order restoring voting rights of everyone would be a rewrite of the law rather than a contemplated use of the executive clemency powers." But governor McAuliffe believes he not only has the legal authority for this move, he plans to sign similar executive orders each month to cover felons as they are released, Megyn?

KELLY: Trace, thank you. Joining me now with more of Fox News Senior Judicial Analyst and The New York Times bestselling author Judge Andrew Napolitano. Judge, good to see you.


KELLY: So he -- just to put this in context, in 2012, President Obama beat Mitt Romney in Virginia by 150,000 votes.


KELLY: McAuliffe is adding 200,000 ex-felons to the voting rolls. That will help -- that will help lengthen that potential lead by quite an amount.

NAPOLITANO: It probably will. So, there are two arguments at play here. One is the argument from justice and from the constitution and one is the political argument.

The argument from justice, I happen to be one of those people who believe you should not be perpetually punished. That when you do your time and pay your fine and make restitution, whatever the court has ordered, you should get back into society and you should be able to vote.

KELLY: You could have your full citizen rights restored.

NAPOLITANO: Correct. That the eighth amendment to the constitution prohibits perpetual punishment and denying people the right to vote after they've done their time is a form of perpetual punishment. But you have two attorneys general, one republican and one democrat in Virginia in the past eight years, who each said it can't be done on a blanket basis.

The law gave the governor the ability to relieve convicted felons of some of their punishment as long as the governor examined each felon individually rather than did it in a group of 200,000 people. One of the problems is these 200,000 people lost their registration to vote at the moment they were convicted of the felony.

So they have to go back and reregister and they had plenty of time in which to do that. But given his relationship to Mrs. Clinton., given his financial relationship to the Clintons, remember we're dirt poorer and we need money to buy a house and Terry McAuliffe bought the house for them, given the fact that.

KELLY: So his debt is paid, really. I mean, he doesn't need to do anything funky with the voting polls.

NAPOLITANO: But given the fact that Virginia is a very very key, pivotal state.

KELLY: That it's -- it's more swing than it's ever been.

NAPOLITANO: Correct. It's kind of obvious what he's trying to do, so there's going to be a challenge.

KELLY: Because the presumption is they say that the vast majority of these ex-cons are African-American and there is an assumption that they are going to vote democrat. But McAuliffe is saying you are walking on dangerous ground when you say that. Why don't you go out and fight for those votes, republican candidate where.

NAPOLITANO: Well, is he actually making a good point, but I will tell you this. This is not going to be decided at the voting booth and not going to be decided by Terry McAuliffe. It's going to be decided by the Supreme Court of Virginia as to whether or not he can actually do this in such massive numbers.

KELLY: Can they revoke it?

NAPOLITANO: They could very well follow the attorneys general who said to him you have got to do it individually.

KELLY: I was surprise to do see that in some 38 states, voting rights are automatically restored once prison, parole, probation time has been complete, 38 states say.

NAPOLITANO: Yes, that is the modern rule and Virginia has kept the old rule, but it is given.

KELLY: And a lot of people think you murder somebody, you are done. You don't get to vote anymore. I don't care if you did your time. There are certain things you don't get to do any longer.

NAPOLITANO: You know, when people have paid their debt to society, they have the right to be fully rehabilitated and to come back in society and start their life anew and that includes voting.

The question is, is this the way to do it? Is this the time to do it? Or should it be done by the Virginia legislature if they want to do it in a group of 210,000 at once?

KELLY: Fascinating. Judge, great to see you.

NAPOLITANO: Good to see you.

KELLY: Well, do you remember this video showing a doctor -- female doctor attacking a male Uber driver? This story made headlines as few months ago and now the hospital where she works just made the decision on whether this woman should lose her job.

Yes, the judge wants to weigh in. This is not your segment. So should what you do in your private life, matter in your professional life? A lot of people at home say, "No, no, don't look at." We've got a decision in the case as "Marthur" are back together next.


KELLY: A Kelly file follow-up for you tonight. On Friday, we spoke with a college student who says he was suspended from Colorado State University Pueblo for having consensual sex with his friend. Grant Neal says he and his girlfriend were -- or this woman that he knew, were having unprotected sex but she stopped him and asked him to wear protection, which he did immediately.

The next day, his girlfriend told her friend about the incident and that friend thought that this was a rape. Even though neither one of the participants thought it was a rape. So the friend reported it to university authorities. Then even though the girlfriend testified the college administrators she was not raped, they did not care. Listen to the part of our interview with Grant and his attorney.


KELLY: Andrew, we have been covering this repeatedly. And what has happened in these cases from college campus to college campus is the administration has set up young college men to have the book thrown at them and basically to be convicted without a lawyer and under a standard that no court would accept. Isn't that true, Andrew?

ANDREW MILTENBERG, GRANT NEAL'S ATTORNEY: That's absolutely true. And, in fact, what is unfortunately happening is the Obama administration has laid a very heavy hand on the disciplinary process in colleges such that it's virtually assured that an allegation will turn in to a finding of responsibility and expulsion.

GRANT NEAL, VICTIM: I have been having to deal with this for so long and it's just really hard thing to do when all the rights that you're given as a natural born citizen of the United States, as constitutional due process, I didn't even have that. So, that was extremely difficult to handle.

KELLY: What are your odds of reversing this policy or getting the Department of Education to listen?

MILTENBERG: I think it takes a situation as dramatic as Grant's to have the people of this country and the Department of Education sit up and say, "Yes, we want to be proactive about sexual assault, but we can't do it at the cost of due process."


KELLY: Joining me now, Arthur Aidala. He's a New York trial attorney and Fox News legal analyst and Mark Eiglarsh. He's a criminal defense attorney, former prosecutor. Great to see you both. So Arthur, let me start with you. Did the school get it wrong?

ARTHUR AIDALA, NEW YORK TRIAL ATTORNEY: The school probably got it wrong on the facts themselves, but not in the society that we're living in now, Megyn. Like, what you said and what the lawyers said, we've created the Obama administration governors, the legal system, the lawyers have created an environment that once a school is put on notice.

And that's what happened when the girlfriend, not the person who engaged in sexual relations her friend, puts the school, "Hey, a sexual encounter took place. She didn't want something to happen at first but then he fixed it", they are on notice and if they don't do anything, they are absolutely liable for something. But on this fact, of course it sounds ridiculous, but we're the ones who created that.

KELLY: Mark, it doesn't sound ridiculous. It is ridiculous. It's ridiculous. Neither party that think there was a rape.

MARK EIGLARSH, CRIMINAL DEFENSE ATTORNEY: Of course it's ridiculous. Megyn, I looked up in the dictionary under miscarriage of justice and do you know what I found? Not that because they list words individually. But if they clumped them together, they would have miscarriage of justice in this case because it is.

It's fundamentally unfair. No due process and now is he labeled a sexual offender and can't get in any college? It's outrageous.

AIDALA: Listen -- god bless you for talking about this now. I have been handling cases like this for decades. That's just the environment that needs an education.

KELLY: No, no. That's not true. The Obama administration changed the standards to just preponderance of the evidence to basically get yourself booted off campus. You just have to prove by 51 percent that you were raped or in this case, that somebody you know on campus was raped and accused has very few rights. He is not allowed to do confront his accuser. He can't have a lawyer in a lot of these proceedings, Arthur.

AIDALA: Correct, you're right but that's what's been going on in educational facilities for quite some time now. This is not a brand new thing. I've represented people. You're right, I'm not allowed to be there.
I am allowed to do write a letter but not allowed to do be there with my client for -- as a criminal defense attorney, let me just.

KELLY: Do you think can a guy labeled a sex offender and take away his college degree, he wants to be a doctor, 3.67 GPA, promising athlete, done. You're done and good luck getting into another college when you have that on your record.

I have to move on because we have two other cases to get to. We're going to continue to follow this case. Mark, our old friend and neurology resident, very smart young woman made a very stupid decision. Here she is, let's watch it, attacking the Uber driver. She was angry. She is throwing things and well, she is angry, yes, you can see that and tell us what the deal is now. So her hospital had to make a decision about whether she was going to continue on as a resident there and?

EIGLARSH: Yes, it was very easy decision as far as I'm concerned. She is gone. And do you know what? She should count her lucky stars that she wasn't stripped of her liberty because she committed probably about four or five different offenses that I counted.

KELLY: But he didn't press charges. The Uber driver did not press charges.

EIGLARSH: Merely because he didn't press charges didn't mean that she didn't commit criminal offenses and it relieves me, my wife, and my kids of going to Jackson Memorial Hospital here in Miami. I'm not done, and looking at her and saying, "That's our doctor?" I will pass on her. Let the showcase on price is right.

AIDALA: If you and your wife or one of your children need her care, at a time when she is sober, you don't really care about her bedside manner or what she does when she's out of the Uber car. It's about her ability to perform her duties as a doctor.

EIGLARSH: You are right, and it has been called into question by what I see on that video. I will pass. I will wait for the next doctor.

KELLY: I mean, if we're going to start eliminating all doctors prone to fits of rage, we'll going to get rid a lot of doctors.

AIDALA: Yes. I mean, Mark, the way you and I behave that Megyn.


EIGLARSH: What you saw in that video, Arthur, this was rage?

KELLY: She said -- she had cocktails that was clear, but she also said that her father had recently been hospitalized, so you got to give her, you know, a little sympathy for that and she said I know something else bad happened.

AIDALA: Mark, quite simply if people saw the way you and I behaved at Megyn's Christmas party, they say we shouldn't be in the courtroom, but yet still go in the courtroom and we do a great job every day so.

MARK: Be yourself. I saw you at that party. That's all you, my friend, come on?

KELLY: All right, I want to get to this. She has gotten booted from her university, but she has an appeal because it is a real question about what you do in your off time should really, you know, cost to you or lose your job.

She didn't do this at the hospital to a patient. Okay, a guy walks into a Wholefoods, Mark, walks into a Wholefoods, leaves a pastor and claims that they put an anti-gay slur on his cake, that Wholefoods said we're very sorry, this is -- oh, wait, and they say now he is lying and say they have proof, so tell us?

EIGLARSH: Right. It looks like he is lying. I can't say with certainty, but then when he gets home, he then sees it says -- well, it says a gay slur on there and he claims that the sticker, showing the UPC code was at the bottom of the cake.

The video that Wholefoods released shows it was the top of the cake that he then is probably lying about this experience. Think of what somebody is like to do that. Just think about it for a second. Yes, I mean, if Wholefoods should own that guy.

AIDALA: So just seeing you know, the legal part of it is he filed a suit against Wholefoods for picking up his cake that says Love all or Loved everyone and then he.

KELLY: So he wanted it to say Love Wins and he claimed they put on Love Wins and then the F word which is a derogatory word for gay men. And Wholefoods, they looked at the surveillance tape and they finally said, "That's absolutely false", completely and now the question is whether whole foods should sue him, Arthur?

AIDALA: OK, but here going back to the first topic we did. OK, he is suing Wholefoods because they had a gay slur on there, for what? What's his mental damage? Why is this a lawsuit? Why are we bringing this to the court?

EIGLARSH: Because of the damages? Hold on, Arthur. Those are the damages that presuppose anything.

AIDALA: No, my point is why the legal system always involved in these things? Why is it always a lawsuit?

KELLY: Because if it was true that he made the whole thing up, he was looking for attention.

AIDALA: So that's the counter suit. So that's -- that's the only reason why we are in court. He sued Wholefoods because he picks up a cake and has this slur on it and then a couple days later after this internal investigation, they are saying you are lying and they are counter suing him and there are whole justices.

KELLY: I don't know what you're saying, you lost me but I do have something important for you which is, I hope your cake this weekend. Happy times, Arthur and Mary Anne. The big weekend, Arthur is taking the plunge.

AIDALA: Yes. Let me use this.

EIGLARSH: Congrats, brother.

KELLY: You don't need that, stop that.

AIDALA: The greatest gift on the whole world, right, Meg?

KELLY: You're absolutely right. You got nothing to worry about. It's a match made in heaven and I'm wishing you all the best, all my love to both of you.

AIDALA: Thank you. Two beautiful people in every sense of that word. Great to see you guys. We'll be right back.


KELLY: A patriotic moment cut short at the 9/11 memorial in downtown Manhattan. A children's choir from Waynesville, North Carolina, was told to stop singing the national anthem by security guards. Trace Gallagher has the story. Trace?

GALLAGHER: Megyn, the choir were in New York on a music-filled itinerary singing at the Cathedral of the Saint John the Divine, singing the Lion King on Broadway and when they got to ground zero, they were so touched they wanted to honor the site the best way they knew how with a song.

So they asked one security guard if they could sing and the guard said yes as long as they moved to the side. But in the middle of what their teacher calls a reverent rendition of the national anthem, another guard came over and cut them off because the rules say, you have to have a 35 dollar permit to sing. One of the mom was so furious, she posted the video online, got hundreds of thousands of views. Watch the video followed by some of the kids on Fox and Friends.




GALLAGHER: A spokesman for the memorial admitted the situation was -- yes, the situation was mishandled and invited the kids to come back. Megyn?

KELLY: Good. Trace, thanks. We'll be right back.


KELLY: Tune in tomorrow night at 6:00 P.M. eastern as Bret Baier and yours truly bring you live election results from the battle for the east. In the meantime what do you think of the Cruz-Kasich alliance? and on Twitter@megynkelly, thanks for watching. I'm Megyn Kelly.

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