This is a rush transcript from "The Kelly File," May 23, 2016. This copy may not be in its final form and may be updated.
MEGYN KELLY, HOST: Breaking tonight. New calls for calm in Baltimore after the first of the six officers charged in the death of Freddie Gray is found not guilty on all charges.
Welcome to "The Kelly File," everyone. I'm Megyn Kelly. Tonight we had hoped to hear directly from Officer Edward Nero but the judge has issued a new gag order prohibiting this officer from speaking out despite the fact that he was cleared on all charges. However, you will be hearing from his father in a "Kelly File" exclusive in moments.
Remember, it was just over a year ago that Freddie Gray's case first made national headlines. He had been arrested and died a week later due to a spinal injury while in custody. Six officers were ultimately charged in the case. That sparked violent protests and calls for their heads but today a judge ruled the facts did not support the charges against the Officer Nero just 30-years-old. Outside the courthouse protesters were clearly distraught and took their anger out on the officer's family.
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KELLY: So, Officer Nero faced trial and was found not guilty and that is the response to his father as he left the courthouse today. Again, he'll be with me in moments.
Meantime Baltimore officials were quick to remind everyone that ever that even though Officer Nero was cleared entirely, he is still under threat from his bosses with the mayor saying, quote, now with the criminal case has come to an end, Officer Nero will face an administrative review by the Police Department and his own department saying, quote, "Although the criminal case against Officer Edward Nero has come to a close, the internal investigation has not. We have a big show for you in store tonight.
In moments we'll be joined by Deray McKesson, one of the most outspoken activists in this case. Plus, in "The Kelly File" exclusive, we will speak with Officer Nero's father about the acquittal. And then we'll look at what today's verdict means for the other five officers when Mark Eiglarsh and Arthur Aidala join us.
But we begin with Trace Gallagher reporting from our West Coast Newsroom on
today's events. Trace.
TRACE GALLAGHER, FOX NEWS CORRESPONDENT: Megyn, as the verdict has read, Officer Edward Nero lowered his head and wiped away tears and hugged his defense attorney. Nero opted for a bench trial instead of a jury trial and after five days of testimony, Circuit Judge Gary Williams ruled Nero was not corrupt and there were, quote, "no creditable facts that he was even involved in Freddie Gray's arrest." Nero's partner Officer Garrett Miller who will stand trial in July testified that he alone arrested Freddie Gray but prosecutors allege that Miller twisted the story to protect a buddy.
The very fact that prosecutors charged Edward Nero with assault was considered radical by some legal observers and critics say, these proves State Attorney Marilyn Mosby's rushed to judgment in charging the six officers, was motivated by politics not justice. Mosby was not in court for the verdict and has not issued a statement but last year many say she appeared to side with the protesters. Watch.
(BEGIN VIDEO CLIP)
MARILYN MOSBY, BALTIMORE CITY STATE'S ATTORNEY: To the people of Baltimore and the demonstrators across America, I heard your call for no justice, no peace. Your peace is sincerely needed as I work to deliver justice on behalf of this young man.
(END VIDEO CLIP)
GALLAGHER: Today even the attorney for the family of Freddie Gray commended the judge for, quote, "Not bending to public opinion." Although angry opinions were plentiful after the verdict as protesters surrounded Officer Nero's family calling for justice. Some even calling it par for the course. Listen.
(BEGIN VIDEO CLIP)
SHARON BLACK, PROTESTER: We've seen the Trayvon Martin case and there was never justice. Not in that case, so it's slanted against people in the community, it's bias and racist to --
WALLACE LESS, PROTESTER: Freddie Gray did not kill himself even though he's dead. Somebody needs to be held accountable.
(END VIDEO CLIP)
GALLAGHER: Gray was arrested last April at a high primary of Baltimore for carrying an illegal knife. He died a week after his neck was broken in the back of a police transport van. He was handcuffed and shuttled by not restrained by a seat belt. His death set off more than a week of protests looting and riding. At the time the Baltimore Mayor Stephanie Rawlings Blake said, those causing damage needed their space, today she called for patience. Officer Nero's attorney says, Nero wants to remain a Baltimore police officer but the internal investigation won't be complete until all the criminal cases have ended -- Megyn.
KELLY: Trace, thank you.
Again, when this officer was cleared, found not guilty of anything in the death of Freddie Gray, both the mayor he works for and the bosses he reports to had not a single word of support for Ed Nero. While many of the activists surrounding this case said justice was not done.
Deray McKesson is a Black Lives Matter activists and former candidate for mayor of Baltimore. Deray, thank you for being here tonight. Do you agree with that woman's statement we just heard that this is biased and racist to its core, this verdict.
DERAY MCKESSON, BLACK LIVES MATTER ACTIVIST: It's good to be here, Megyn. You know, we know to be true that Freddie Gray should be alive today and what the judge said today was that the Officer Nero was not found criminally responsible but it's important to know as you done so far that the mayor and the police commissioner have said that they will conduct an investigation because we know that in the state of Maryland, that the law enforcements officer's bill of rights but the police here in contact in Baltimore with policies in the city, that almost guarantees that officers will not be held accountable for their actions, so the administrative review that is going to undergo with Nero is important. And remember that this is --
KELLY: But what the court found is, there were zero facts, there were zero facts to support this charge against this officer and this is a judge who himself had prosecuted cops, bad cops for the last five years before he took the bench.
MCKESSON: So, Megyn, it was facts around a criminal, this is a criminal case. So what the judge found today was there was no crime committed based on the current laws.
KELLY: Right. So, my question is, do you accept that or do you agree with that woman we just heard who said, this verdict is biased and racist.
MCKESSON: So, like I said Megyn. So, I agree that this is a reminder that we need to make the laws so that they can hold police officers accountable.
KELLY: Like Officer Nero?
KELLY: What did he do that was wrong?
MCKESSON: So, again, what this said today was a given the current standards that he was not come and be responsible, we've seen this play out in verdicts all across the country.
KELLY: What did he do that was wrong, Deray? What specifically did this guy do because what the evidence showed us was he had virtually no interaction with Freddie Gray. None.
MCKESSON: So, did you read the verdict? What the judge does say that he actually did have involvement with the stop but not the arrest specifically so he was involved. Freddie Gray should not have been stopped. He was no threat to the officers. The officers were a threat to Freddie Gray. So, remember that this is about a range of circumstances today and it's a reminder that we have to change the laws and the policies in the city and the state --
KELLY: We do? Don't you see there's danger to the community if we start locking up cops for making a bad judgment call?
MCKESSON: Do you think that Freddie Gray should be dead, Megyn?
KELLY: Deray, my question to you, don't you see the danger to the community --
KELLY: -- if you change the laws to make it illegal for cops to exercise poor judgment?
MCKESSON: Megyn, I will never agree that an officer's role is to kill unarmed citizens. Freddie Gray entered that van alive and he left the van with his spine damaged. And we know --
KELLY: So, the only two groups to weigh in on whether that was the fault of the cops have concluded that this is a mistrial and the cop was not guilty. So the facts so far are not coming out to support some sort of
MCKESSON: I hope that you're not suggesting that because there was one acquittal. That means all of the other cases don't matter. That's a really interesting --
KELLY: You're suggesting these cops kill this man. And I'm telling you that while Freddie Gray died in police custody that has not yet been established.
MCKESSON: What I was saying is that Freddie entered the van alive and that was not the condition that he came out in.
KELLY: Right. And who caused it and how remains to be seen but you're telling the audience that these cops did it and I'm telling the audience does far, the evidence doesn't support that.
MCKESSON: What I'm saying is that there is one trial. So, you don't know what the evidence is in the other five cases and neither do I. And that's why I'm excited to follow --
KELLY: Well, I know one guy was a trial by a jury and it was a hung jury so they were not able to conclude guilt.
MCKESSON: Yes. Yes. Which again is not an acquittal. Right?
KELLY: And then the next case was tried by an African-American judge concluded that there was no case against this officer and he was just acquitted on all charges.
MCKESSON: And that's important. We'll see the next five, you know --
KELLY: But even now that you have a not guilty verdict against Officer Nero, you continue to tell this audience that he did something wrong.
MCKESSON: No, what I continue to say is that, I'm looking forward to the administrative review and that we do need to take a whole list of -- look at the laws in the state of Maryland.
KELLY: What did she do Deray?
MCKESSON: Maryland is still -- in Baltimore City it is okay for officers to hog tie and choke hold citizens. We don't think that that is okay.
KELLY: That's a separate thing. Okay. So, you look at that. But what did Officer Nero do?
MCKESSON: So, I've already said this to you. This officer was involved in this case and what it says, what the judge said was that the officer was not criminally responsible and what it says, what the judge said is that the officer was not criminally responsible and this means that we need to continue the fight to make sure that the laws hold officers accountable. He had no responsibility as noted in the judge's decision today to intervene when he saw others misbehaving and that is important. We should push for --
KELLY: That's not what the judge concluded. He did not conclude anybody had misbehaved. No, he did not Deray. Thank you for being here. I got to go. Officer Nero's father is with us, next.
Joining me now in a "Kelly File" exclusive, Ed Nero, Sr., the father of Officer Nero. Thank you so much Ed for being with us tonight.
ED NERO, SR., FATHER OF OFFICER NERO: Thank you, Megyn.
KELLY: Your reaction today when you heard the not guilty verdict?
NERO: Extremely happy.
KELLY: Describe for the audience what your son has been through this past year?
NERO: It's been a very trying year for the entire family from the moment he was placed under arrest and charges were brought against him by Miss Mosby and up until today it was a very hard year and now that it's over I
personally am very static about the whole situation.
KELLY: What did you make listening to Deray just now talking about how notwithstanding the verdict your son needs to be facing more penalties and that the laws need to be changed so that people like him are held to a
NERO: As far as your previous guest I find him to be a very ignorant person. He obviously has no clue what he's talking about. I sat in the courtroom every day and listened to what each side had to say and not even being a father, just being a person listening, the facts were what they were and the state appeared not to prove the case and my son was found not
guilty as a result of that.
KELLY: Officer Miller who is also defendant in this case and was the one who first placed Freddie Gray under arrest was given immunity and forced to testify against your son. When he took the stand, he testified I think to the prosecution's surprise potentially that he and he alone caught and handcuffed Freddie Gray. He minimized the involvement of your son and today he sat with your family as your son was found not guilty and he appeared very emotional. Your thoughts on Officer Miller in all of this.
NERO: Officer Miller appears to be a very good man. I don't know him. He is a co-worker with my son. But I believe he would have quite a bit at stake in this as well the rest of the defendants and the entire country of police officers.
KELLY: What was your reaction today Ed when the protesters followed you out of the courthouse and shouted at you.
NERO: Scared. Scared because they were shouting things that were uncalled for. They were rushing to judgment. Obviously people didn't pay attention to the case. It was amazing that during the entire process there was one protesters that stood on the corner. Beyond him there was nobody else there and today there was a lot. It was very fearful for my younger son because apparently they assumed he was my older son who was Officer Edward
Nero and it was difficult getting out.
KELLY: So, they didn't watch the trial play out at all unlike you, they didn't sit in there day after day after day and yet, you have people like Marc Lamont Hill over at CNN tweeting out the criminal justice system is not designed to yield justice for dead black bodies. This is yet another reminder of that. Your thoughts on that.
NERO: I don't think it has to do with color and people are making it into a black and white issue. It really doesn't matter what color the person is. I mean, people do deserve justice but, you know, it played out in the court system. Fortunately for myself and my family it played out the way that we hoped that it would and felt that it would. We never felt for a moment that my son had done anything wrong and the court proved that and I'm so happy with the judge. Judge Blane (ph), I thought he did a superb job on both sides. He was very fair.
KELLY: He's been praised by everyone. Ed, let me ask you about your son before I let you go. He's 30 years old. He was a volunteer firefighter for ten years and then joined up with the force, had no marks on his record whatsoever. Sometimes we forget about what this kind of an experience puts the officer through. It was described as a year of hell for him. Has it been?
NERO: Yes, it has, truly. But as far as what he is intending to do, obviously I heard before you went on air some of the things that have been issued, the gag order, wasn't aware of it, as well the process that he'll have to go through, I assume that he would have to go through police administration, but I don't think it's essentially fair that he is not allowed to resume his duties until all the others are completed. I don't think that's fair.
KELLY: Uh-hm. He's stuck in a desk job now until everyone has their trial and the outcomes are settled even though he's been adjudicated not guilty.
NERO: Yes, even though he's not guilty.
KELLY: Ed, thank you for being here.
NERO: Thank you, Kelly.
KELLY: Well, with the first trial in Freddie Gray's death ending in a hung jury and the second ending with an acquittal. What's next? Mark Eiglarsh is a criminal defense attorney. Former prosecutor Arthur Aidala is a Fox News legal analyst and New York trial attorney. Guys, thank you for being here.
Mark, what did you make of those first two segments?
MARK EIGLARSH, CRIMINAL DEFENSE ATTORNEY: Well, first, the judge is especially courageous in my eyes when I see the treatment that the family gets. So, it kind of shows you what the energy is like there.
KELLY: And they weren't even in the courtroom. The people yelling at that -- were not -- they hadn't even watched the trial.
EIGLARSH: Pure ignorance. Your prior guest clearly is just speaking from an emotional place. He doesn't know the facts of these cases. This judge risked his livelihood because he's certainly going to face, problems getting reelected but his own life and his family's life because there are people who are willing to kill for judges making decisions based exclusively on the law and the facts keeping emotion and politics to the side.
KELLY: Look at this, Arthur. Marc Lamont Hill saying this is yet another reminder that black life isn't worth much in this nation. Really? Really, Arthur?
ARTHUR AIDALA, FOX NEWS LEGAL ANALYST: I mean, that's just to start more trouble. That's the worst possible, and you know, he's a smart guy, Marc Lamont Hill. I think he's a smart guy.
KELLY: He is a smart guy. He is a smart guy but this is out of line. He wasn't in that courtroom either.
AIDALA: Absolutely. And I will tell you and Marc we see this all the time unless you're in that courtroom and you hear all of the evidence, it's very, very hard to make these very like broad statements --
KELLY: And you tell the audience Arthur whether there was any evidence to convict this cop on these charges.
AIDALA: Look, all three of us have been saying this for a year. There was a rush to judgment to charge all these officers. It's a tragedy that this young man is dead.
EIGLARSH: Megyn, here's the problem --
AIDALA: There's no doubt about it. But that doesn't mean it's a crime that it was a crime that was committed. It's that simple.
KELLY: That's right. Go ahead, Mark.
EIGLARSH: Here's the problem. Marilyn Mosby stood out there. She is a leader. People hold her in high regard. And she went out and she cast her big net and in her big tuna net, she caught some sweet innocent dolphin and she is looked up upon by people in the community so when this happens they think, well, something must have gone wrong. It couldn't have been the lack of evidence. Mosby must be right. It must be the judge.
KELLY: Uh-hm. But just to remind the audience of what Miss Mosby told the jury pool in Baltimore, recall this moment.
(BEGIN VIDEO CLIP)
MOSBY: Last but certainly not least to the youth of this city, I will seek justice on your behalf. This is a moment. This is your moment.
(END VIDEO CLIP)
AIDALA: Yes, what is that about?
KELLY: No. It's not your moment. And it wasn't your moment either, Miss Mosby. It wasn't.
AIDALA: It's the criminal defense attorneys that have to continue to go on. Look, you're very happy about this because it's in the atmosphere,
acquittal, not guilty, hung jury.
KELLY: Even though it was by a judge.
AIDALA: You know, the three of us are paying attention to that but someone who is, you know, taking their child to school every day and checking the water meters for a living, they're not digging that deeply into the
KELLY: The case against the driver of the van is up next however and that's a stronger case, is it not?
EIGLARSH: Well, let me just say --
KELLY: Go ahead, Mark.
EIGLARSH: Let me say, it is because there was an expert in this trial who said that it wasn't Nero, Officer Nero's responsibility to buckle him in, it was the driver's responsibility. Clearly different facts, different evidence. Listen, Freddie Gray did die and he died because he was -- listen, he was under their watch. Someone didn't do what they were supposed to and I think that if it's a jury, they may hold the driver
KELLY: So, all eyes are on Officer Goodson who gets tried in June. But listen, but the thing is the other piece of evidence that came out in Nero's trail was, even though they changed the policy three days before Freddie Gray got in that van to require them to belt in the suspects, he was never told. All the evidence showed that Nero didn't know. And if Caesar Goodson can prove he didn't know too Arthur, I give you the last word, that could be critical.
AIDALA: The judge articulated the prosecutor failed to prove beyond a reasonable doubt that Nero knew of the new policy and that's what the defense attorneys us now -- I'm sure they were in the courtroom, I'm sure they are going over their transcripts and they're going to use all this for ammunition in the future trials.
KELLY: Yes. Guys, great to see you.
AIDALA: Thank you.
EIGLARSH: Take care, Megyn.
KELLY: Breaking tonight, Fox News confirming the FBI is now investigating the Virginia Governor Terry McCaul for possible corruption during the time he served on the Clinton Foundation. This is just breaking. Just ahead, we will be joined by the man who investigated the Clintons about what he found at the $500 million fund and he'll put this news in perspective for us.
Plus, explosive new allegations in the fight over illegal immigrants as a federal judge accuses the Department of Justice of knowingly lying repeatedly about the President's plans to protect millions of illegal migrants.
Fox News's senior judicial analyst Andrew Napolitano is next on the stunning ruling.
And then Donald Trump went there in a disturbing new hit on former President Bill Clinton. We've got the ad and reaction with Dr. Ben Carson still ahead.
(BEGIN VIDEO CLIP)
UNIDENTIFIED FEMALE: I tried to pull away from him.
(END VIDEO CLIP)
KELLY: Developing tonight, shock reaction after a federal judge lashes out at the Justice Department attorneys accusing them of lying, flat out lying about the President's plan to protect millions of illegal immigrants. In a fire-up opinion, U.S. District Judge Andrew Hanen says, it is hard to imagine a more serious, more calculated plan of unethical conduct. Clearly there seems to be a lack of knowledge about or adherence to the duties of professional responsibility in the halls of the Justice Department.
Joining me now, Fox News senior judicial analyst Judge Andrew Napolitano. Wow! This judge is very unhappy with the DOJ and made no bones about it. You lied, you knew you were lying when you lied.
JUDGE ANDREW NAPOLITANO, FOX NEWS SENIOR JUDICIAL ANALYST: And they lied four times and they lied to the detriment of the state. So, here's what happened, the states file an application saying, we want to stop the Justice Department from accepting applications under what we believe the
President say, legal orders. The Justice Department says --
KELLY: Because the President said, gave the executive order saying, okay, a certain group of illegal immigrants --
NAPOLITANO: Can stay.
KELLY: -- can stay.
NAPOLITANO: You follow my rules that I made up.
KELLY: And so, they got that ball rolling and then they got sued.
NAPOLITANO: In court they said don't worry, nobody has applied for this yet. Four times they said it, twice verbally to Judge Hanen and twice in writing to Judge Hanen. Then he discovers that not only did they lie but 100,000 people applied for this program when the states had been lulled
into a false sense of security and the judge had been lied to.
KELLY: And what they told the judge was, don't worry Judge, those people applied under a thing that happened back in 2012 and not under the current executive action and it was a complete lie and the lawyers from DOJ knew that they were lying, that this had nothing to do with what happened in
NAPOLITANO: I know this sounds silly. They lied and then they lied about lying. And the only thing that the judge did to protect them is in this opinion which he ripped them apart and he didn't tell us who they are.
KELLY: Where are the names?
NAPOLITANO: And we don't know who these lawyers were and instead of throwing them out of the courtroom and ordering them off the case and referring their lies to the ethics prosecutors --
NAPOLITANO: He said, go take a course on ethics so that you don't lie in the future.
KELLY: That will do the trick. Because you know, the first time you take the bar they don't mention anything about that.
NAPOLITANO: Who would trust them another time in the same courtroom? They represent you and me, they represent, everybody watching us now. They represent the United States of America and they lied four times and people were lied to their detriment on those lies. They cannot be on this case any longer.
KELLY: And even though now the Department of Justice has come out and said, we strongly disagree with the order, the lawyers the DOJ admitted that it knowingly lied. They admitted it.
KELLY: So, they may disagree with the penalty but they admitted that they lied.
NAPOLITANO: I don't think he has the right to order all lawyers on this case even the ones that didn't lie to him to take these ethics course.
KELLY: And even if he does, it's not going to do any good.
NAPOLITANO: He can and should kick them out of the courtroom, kick them off the case and let the ethics prosecutors decides whether or not they should --
KELLY: Explain to the audience how serious that is. I can't imagine, I mean, I practiced law for nine years, actually going into a federal court and lying right to the judge's face repeatedly.
NAPOLITANO: The whole system of litigation in America is based on trust.
When a lawyer says something to a judge, the judge believes it because the consequences of misleading the court are draconian. Whether the lawyer is a defense lawyer or whether the lawyer works for the government. Here you have -- I think there were four lawyers working for the government who collaborated in this lie, four lies, two verbal and two written down. That will of course, the collapse of the system, if judges can't believe what lawyers say to the --
KELLY: Something stinks, Attorney General Lynch. Something stinks. And the country needs her to look into it.
NAPOLITANO: She should do something about it.
KELLY: That's right. Because they work for her so this a moment for leadership. Great to see you, Judge.
NAPOLITANO: Thank you.
KELLY: Well, we also have a big story on the 2016 race. As new polling puts Donald Trump in the lead for the first time against Hillary Clinton.
Plus, a big story breaking just moments ago as Fox News confirms that the Virginia Governor Terry McAuliffe is under federal investigation right now for his time at the Clinton Foundation. The man who wrote the book on that
fund is here next.
(BEGIN VIDEO CLIP)
HILLARY CLINTON, D-PRESIDENTIAL CANDIDATE: So please, as I look out in the audience to see a lot of familiar faces, but also to be here to enthusiastically endorse my friend Terry McAuliffe to be your next
(CHEERS AND APPLAUSE)
(END VIDEO CLIP)
KELLY: Breaking tonight, Fox News confirming that the FBI has an ongoing investigation of Virginia Governor Terry McAuliffe for possible illegal campaign contributions he may have received while running for governor.
Now, apparently it was also the time that he was at the Clinton Foundation and this could mean new trouble for the Clintons politically, already dogged with questions about the $500 million fund.
The author who led an explosive investigation into the foundation will join us a moment, but first let's get the facts straight about what exactly is being investigated and what's not. Trace Gallagher has that.
GALAGHER: Megyn, aside from being the former chair of the Democratic National Committee and Hillary Clinton's 2008 campaign manager, Virginia governor Terry McAuliffe also served as a board member of the Clinton Global Initiative founded by former president Bill Clinton. Records show more than a hundred donors contributed to both the foundation and the McAuliffe's 2013 gubernatorial campaign.
And now Fox News has confirmed the FBI and Department of Justice are taking close look at those overlaps especially $120,000 contribution from Chinese businessman and politician Weng Wenliang. The contribution was made through his U.S. businesses. U.S. election law both prohibits foreign nationals from donating to U.S. political campaigns.
Wenliang is a delegate for Chinese Ceremonial Legislature but he also holds permanent resident status here in the U.S. which could make it legal but that's what the feds want to find out.
So far, the FBI has not contacted either the Chinese businessman or the Governor McAuliffe but the McAuliffe's campaign attorney says they will cooperate. Terry McAuliffe has not yet ruled out becoming Hillary Clinton's running mate but he is now the second consecutive Virginia governor to be investigated by the DOJ. Bob McDonnell was convicted of corruption charges in 2014 for $175,000 in loans and gifts from a friend. McDonnell has appealed to the Supreme Court, Megyn.
KELLY: Trace, question, is there an allegation that it was while Terry McAuliffe was with the Clinton Foundation that he may have done something improper or after that fact.
GALLAGHER: Nothing improper on behalf of the foundation itself. This is all for his campaign. It's unclear if ir was simultaneously while he was with the foundation and running for governor or just his campaign itself, Megyn.
KELLY: Okay. That's an important clarification and I appreciate that. Trace, thank you. Joining us now is more of Peter Schweizer, the author of "Clinton Cash" and president of the Government Accountability Institute. Peter, good to see you again. So, explain this in terms the viewers can understand.
PETER SCHWEIZER, AUTHOR, "CLINTON CASH": Well, I think it's really an investigation, a broader investigation that's going on about the Clinton Foundation. Now, Fox News has reported as have others that since May of last year, the FBI has been investigating not just the e-mail server but also the Clinton Foundation. I would note that the Terry McAuliffe investigation appears to have been launched at the same time as they were investigating.
KELLY: Yeah, they say a year ago it was launched. CNN have reported that.
SCHWEIZER: Yeah, I reported that. Exactly. I would dare say I think the McAuliffe investigation is about more than just the question of foreign donations. Mr. Wang appears to have permanent resident status, which means he can contribute to campaigns and it doesn't take a year to determine a technical question like that. This to me has all the markings of the broader investigation of pay to play and favors being exchanged for money flowing to the Clinton Foundation and in this case, to Terry McAuliffe.
KELLY: So, just to put a point on it, the theory would be that Terry McAuliffe got some campaign donations to help him out in his gubernatorial run and then said donor would make a big donation to the Clinton Foundation and everybody walks away happy on the Clinton/McAuliffe side.
SCHWEIZER: That's right. And if favors were done for Mr. Wang on their behalf, that I think is the critical question. What we know is that the FBI has been looking at this for a year. There is this pattern of behavior. The Clinton team has put out this, you know, there's no smoking gun argument, which is really a misnomer.
I mean, Megyn, you would know better than I would because of your legal training. You don't need a smoking gun. If you look at Terry McAuliffe's predecessor in Virginia, Governor McDonnell, he is on jail. There was no smoking gun per se in that case. Senator Menendez of New Jersey of course facing prosecution. There's no smoking gun per se in that case.
If there was a pattern of behavior in which money has flowed to politicians or their family members or to charitable foundations connected to them and they end up doing or taking beneficial actions on behalf of those donors, that can be prosecuted and I think the question here Megyn is are the Clintons and the McAuliffe's of the world going to be held to the same standard as the Governor McDonnell or Senator Menendez or do they get a pass where other politicians do not.
KELLY: And just to underscore, in this particular case, there is no allegation that the Clinton Foundation did anything improper. The probe has focused on McAuliffe and the electoral campaign donations according to the officials in this case. I understand your point. And McAuliffe and his people have said they don't know anything about it, that they have no knowledge of it and they have not been contacted at least as of this point, although they also say this man's donations were lawful. Peter great to see you.
SCHWEIZER: Thank you.
KELLY: So ahead, a new Trump ad hits the Clintons with an attack so explosive that Trump is already being asked if he wants to apologize for it. Dr. Ben Carson is here to react.
Plus, we'll have some fun at the graduation for the Albany Law School Class of 2016. Check out the hat.
(BEGIN VIDEO CLIP)
KELLY: The true test of strength is not avoiding upset, its feeling emotional distress and functioning in the face of it.
(END VIDEO CLIP)
UNIDENTIFIED MALE: From the world headquarters of Fox News, it's "The Kelly File" with Megyn Kelly.
KELLY: New reaction tonight after polls push presumptive Republican nominee Donald Trump ahead of Hillary Clinton for the first time ever. A new Washington Post poll showed Trump two points ahead of Clinton marking the first time Clinton has managed to fall behind Trump in this poll and pushing Trump ever so slightly ahead in the national average of all polls. Look at that. Joining me now, Chris Stirewalt, our Fox News Digital Politics editor and Howie Kurtz who's the host of "Media Buzz" right here on Fox. Good to see you both.
KELLY: Howie, what do you make of this?
KURTZ: Well, you know, these polls may prove ephemeral. There may be a Trump dump because of the fact that he's wrapped the Republican nomination and Hillary is still fighting off Bernie. But they have profoundly changed the political conversation. I mean, the political establishment and the media establishment have consummately predicted that Donald Trump would be a disastrous nominee. Let's see, when was the last time anything like that happened? And now they have to reckon with the fact that, yes, he could actually be president.
CHRIS STIREWALT, FOX NEWS DIGITAL POLITICS EDITOR: We are where we were four years ago and we were before that and before that and every time, which is they both started out at about 45 percent. Donald Trump does not run as an ordinary candidate. He does not campaign as an ordinary candidate. He is extraordinary, but as it turns out, voter behavior is quite ordinary and he does look quite a lot like Mitt Romney in terms of the way his support looks.
He's a little weaker among Republicans. He's a little stronger with men and weaker with women but as we look across the broad spectrum here, he is functioning right now as a typical Republican nominee and she has functioned as a typical Democratic nominee. They're just both a little lower because they're unpopular.
KELLY: As the thing Howie said, Romney got a four point bounce when he secured the nomination. Trump got a four point bounce when he effectively secured it. But you look back at this time, May of 1988 during that race and Michael Dukakis was up 16 points over H. W. Bush at that the time. It didn't wind up being the case in November.
KURTZ: Well, I always get on my soap box and say, you know, don't fall for these early May or June polls because so much can happen. The campaign is in play (inaudible) and this can change dramatically, but Trump had a psychological barrier to get over, which is if he went to the general election right now, 10, 15 or 20 points down, it would make the Never Trump crowd say, "Aha! We say this guy was the next Barry Gldwater."
I think this has really, again this maybe just a snapshot but I think this siphons the gas out of the tank of the Never Trump crowd and their super duper long shot third-party conservative crowd because it shows that Trump at least for now is competitive.
KELLY: Does it Chris, because, you know, obviously national polls are interesting but the election is won or lost on the state by state polls and in particular how it's going in the swing states.
STIREWALT: There is going to be a different swing states this cycle and that is becoming clear and clear.
KELLY: It's going to be what.
STIREWALT: A lot of different swing states this time. Arizona, Georgia typical Republican strong holds -- those look to be swing states but so does Minnesota and so does Wisconsin, Maine, New Hampshire. These are states with huge numbers of white voters...
KELLY: So confusing.
STIREWALT: ...lots of blue collar whites so, maybe. So, we're getting to, you know what we're getting to do? We look at the whole country again instead of caring about three counties in Ohio and Florida and that's good for us.
KELLY: That's' right. Now, the other thing that we've seen in these polls though Howie is, oh my goodness, the electorate does not like these two people. They do not like them. The unfavorables are so high and they're kind of mean. Look at that.
KURTZ: It's kind of an unpopularity contest they say (ph). Wow, Trump's unfavorables are so high. Hillary's not very popular either. So, presumably either who becomes the lesser of two evils kind of contest or one of them manages to make the other more unacceptable. It doesn't seem like there's going to be election won on love, maybe more on ugliness.
STIREWALT: Thanks Ron.(ph)
KELLY: So, could we make so many jokes around -- I'm not going to.
KURTZ: I really like that.
KELLY: It's great to see you both. It's great to see you.
STIREWALT: You bet.
KELLY: Coming up still, a special message for the class of 2016, go Albany Law.
Plus, Donald Trump is already taking heat for a new hit on Bill Clinton.
We'll show you the controversial ad and talk about it next with Dr. Ben Carson.
(BEGIN AUDI CLIP)
UNIDENTIFIED FEMALE: I was very nervous. No woman should be subjected to it. It was an assault.
UNIDENTIFIED FEMALE: He starts to --- I love (ph) my job. I tried to pull away from him.
(END AUDIO CLIP)
KELLY: Breaking tonight, the Trump campaign not backing down as the candidate takes heat for a new hit on Bill Clinton and Hillary. The message involves a web video featuring some of the women who have alleged sexual misconduct by the former president. Watch.
(BEGIN VIDEO CLIP)
UNIDENTIFIED FEMALE: I was very nervous. No woman should be subjected to it. It was an assault.
He starts to -- I love (ph) my job. I tried to pull away from him.
(END VIDEO CLIP)
KELLY: Joining me now, Dr. Ben Carson. Dr. Carson good to see you.
BEN CARSON, FORMER PRESIDENTIAL CANDIDATE: Good to see you, Megyn. Well, you know, it does bring out a story. And the reason, of course, that it was brought out is because Hillary Clinton is claiming to be this great protector of women. And, yet, in these situations, she didn't in any way lend assistance to these women. She's had an organization that accepts money from countries that treat women as second-class citizens. It's been demonstrated then in her own campaign, women are paid less than men. You know, the list goes on and on. So, it's a hypocrisy that's being brought out here.
KELLY: But, you know, Trump has said of Bill Clinton's accusers that they're, "a really unattractive group, physically." And he's actually also said that Bill's victims, he says, are terrible. He is actually a victim.
So, is he really in a place to be putting this ad out there?
CARSON: Well, I think anybody who is campaigning against someone who obviously has not been honest and straightforward needs to bring that out. I'm sure if the other side feels that there are things on the Republican side that need to be brought out, believe me, they're going to do it.
KELLY: And have been.
CARSON: They've been -- they've been very successful at that over the last few elections and the Republicans really haven't pushed back very hard. I think that maybe different this time.
KELLY: You know, it does underscore the problem for Hillary because she -- she put out this tweet, okay, this is from her account back in November, "Every survivor of sexual assault deserves to be heard, believed, and supported." I mean, Juanita Broaddrick is somebody who alleges Bill Clinton raped her in 1978. She sued him in 1999 to prevent the destruction of documents or smear campaign she believed that was against her. It was dismissed. Some people say its old news, but under Hillary Clinton's own rule, we're supposed to believe this woman.
CARSON: Under her own rule, correct. And also, you may remember she was defending an adolescent girl who had been raped and had a very flippant attitude about it. You know, these things are going to be brought up.
They're not going to be swept under the rug. So, you know, get ready for a rough ride. But it's a necessary rough ride because our country is in so much trouble right now and people have got to be awakened.
KELLY: Man, oh man. Dr. Carson, great to see you, sir.
CARSON: You, too, Megyn.
KELLY: When we come back, a special message for the class of 2016.
(BEGIN VIDEO CLIP)
KELLY: As you leave this place, be bold. Go out and take some risks. Make decisions. Even bad ones. Fail. Encounter people who have different viewpoints from your own. Even offensive ones.
(END VIDEO CLIP)
KELLY: So, last Thursday and Friday I wasn't here because I was out of town up visiting my mom and 100-year-old nana, thank you, before giving the commencement speech at my alma mater, Albany Law School. I was honored to be the keynote speaker at such a terrific and inspiring event.
You know, I've been writing this book, "Settle for More," which you can preorder wherever books are sold and I have realized in the process that Albany Law was really the place I found my mojo. You know, it was the firsts place I realized I was actually good at something. And speaking of this year's graduates, I wanted them to know the value of hard work, of adversity, and of settling for more.
(BEGIN VIDEO CLIP)
KELLY: Since I graduated from law school 21 years ago, I'm amazed -- I've been amazed to see how so many are not inclined, they're not inclined to do the hard work it takes to succeed. You got to work. You got to work.
My advice to you is to say yes to everything. No job is beneath you. No reasonable job. Your job is to make other people's jobs easier when you're coming up the ranks. Now, once you've established yourself and you've built up some good will, you'll have more power to make good life choices.
Competition feels like a dirty word in some circles today, right? You know how it is, like everyone wins, everyone gets a trophy, everyone makes the team, everyone plays even if they stink. This makes some sense at the grade school level when we're trying not just crush their little spirits but in real life, come on.
Too much time watching the up and comers or down the hallers is energy you have wasted. Its energy you could have been putting back into yourself. Every time you find yourself starting to focus on your fellow associates and what assignments they are getting and you are not, you remind yourself of how damaging that is to you.
All of that energy that you feel worrying about someone else and what they are doing, either in your professional or your personal life, you channel that back into yourself. Channel it all back into yourself. I never lined up outside of my boss' office whether I was an associate at the law firms or in television asking for opportunity.
I stayed in my own office and busted my tail and opportunity came to me. What can you do better? That's the question. How can you get better? If you're not on the partner's radar, you get yourself on there. Don't succeed by hoping others fail. Work harder. Do better. Settle for more. That's how you win. Congratulations. Give them hell.
(END VIDEO CLIP)
KELLY: Congratulations to the class of 2016 across this country. And speaking of my mom's, don't forget her motto, "lack of planning on your part does not justify an emergency on my part." By the way, for those of you asking, nana is doing great. Thanks, good night.
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