This is a rush transcript from "The Kelly File," June 8, 2016. This copy may not be in its final form and may be updated.
MEGYN KELLY, HOST: Breaking tonight, with Hillary Clinton now the presumptive Democratic nominee, and reports the president could endorse her at any point. There's a dramatic new question tonight about whether such an endorsement would create a terrible conflict of interest for this administration.
Welcome to "The Kelly File," everyone, I'm Megyn Kelly. Tonight we are hearing rumbling that president Obama's endorsement of Hilary Clinton could come at any time. While that would hardly be a surprise, it has the potential to be problematic for those who report to President Obama, here's why. Right now, President Obama's FBI director and his attorney general are overseeing the unprecedented investigations into Mrs. Clinton's e- mails.
And Fox News has reported as well her foundation. A probe that could result potentially in her indictment. That has some legal experts asking how this administration could both support her campaign and investigate her criminally all at the same time. Judge Andrew Napolitano reached out to us today after a source approached him about the conflict now facing the prosecutors and the FBI agents on this case.
In moments, we'll be joined by Karl Rove and Bill Burton who have some thoughts on this breaking news. But we begin tonight with Trace Gallagher reporting from our West Coast Newsroom. Trace?
TRACE GALLAGHER, FOX NEWS CORRESPONDENT: Megyn, we know the FBI has interviewed some of Hillary Clinton's closest aides and advisers and is planning to interview Clinton herself. It's unclear if that's an indication, this investigation, as the FBI calls it or security inquiry.
As Mrs. Clinton calls, is coming to a close. But President Obama has repeatedly vowed that the FBI and Department of Justice will not protect Clinton if the probe finds she broke the law. Watch.
(BEGIN VIDEO CLIP)
PRESIDENT BARACK OBAMA: I guarantee that there's no political influence in any investigation conducted by the Justice Department or the FBI. Not just in this case, but in any case.
(END VIDEO CLIP)
GALLAGHER: But the president is also expected to endorse Hillary Clinton, even campaign for her, and according to Fox News senior judicial analyst Judge Andrew Napolitano because Obama is officially the head of both the DOJ and FBI which are both heavily involved in the investigations, it puts them in a legal bind that could create a serious conflict. Here's the judge.
(BEGIN VIDEO CLIP)
JUDGE ANDREW NAPOLITANO, FOX NEWS SENIOR JUDICIAL ANALYST: The decision is made on the basis of the value of the evidence as the President says it will be, she will be indicted. But the FBI agents have vowed, they're finding it hard to believe that there will be no political interference when and if the President endorses her as his choice to replace him.
(END VIDEO CLIP)
GALLAGHER: Judge Napolitano even suggests because the President's own e- mails might have been sent to Clinton's private server, he could be called as a witness. So, the judge says, the only way to alleviate any type of conflict is to appoint a special council. Watch.
(BEGIN VIDEO CLIP)
NAPOLITANO: An independent council would alleviate conflict. Because an independent council is not answerable to the director of the FBI. Is not answerable to the attorney general, and is not answerable to the White House. An independent council would have his or her own budget, discretion, as to what charges to bring. FBI agents to work for him or
her, and it's not really answerable to anyone.
(END VIDEO CLIP)
GALLAGHER: The judge told me his information is coming from career FBI agents who work in the bureau's most sophisticated divisions -- Megyn.
KELLY: Trace, thank you.
I want to bring in now two former White House insiders, Karl Rove as a Fox News contributor who served as senior adviser and deputy chief of staff to President George W. Bush. And Bill Burton served as deputy White House press secretary under President Obama. Good to see you both.
So, Karl, do you see this as a potential issue? You can see it just on paper. How can he be endorsing her at the same time, his DOJ and FBI are investigating her criminally.
KARL ROVE, FOX NEWS CONTRIBUTOR: Yes. I think it would probably be in the best interest of the country and frankly in the best interest of Mrs. Clinton if the President held off his endorsement for now. There is no magic in him endorsing now or endorsing after the Democratic convention.
But if he were to endorse now, and something were to happen where either the former Secretary of State or some of her closest aids somehow were indicted, and/or that the FBI more likely recommended that they be indicted and the main Justice Department turned it down, believing that it lacked credibility. Then people would worry about whether this was all done because the president put his finger on the scale.
I though Judge Napolitano had a great deal of wisdom, and this should have been handled early on the administration in my opinion should have called for an independent council. The American public would have had a lot more confidence in how this rolled out, regardless of what it ends up being if it were done independently as opposed to being done by this Justice Department and the FBI. But it is what it is, and it is where it is and having said that, I do think the President for the appearance of propriety should hold off endorsing her until he actually, you know, until get to the fall campaign and this issue was resolved behind this one way or the other.
KELLY: It could be any time now, that we find out what the decision is. It's a special council now. I guess technically they got rid of independent council.
But, you know, Bill, let me ask you. Because it seems like President Obama is getting ready to endorse. He is going to have his meeting with Bernie Sanders tomorrow, with Sanders requested. They're going to have a mano-a- mano. Man to man. They're going to have a chat. And the, you know, the belief is then they're going to endorse Hillary.
BILL BURTON, FORMER OBAMA WHITE HOUSE PRESS SECRETARY: Look, I think for anyone to revere that the Justice Department and the FBI aren't totally independent of what the White House is doing, it's ludicrous. Right? And just for context. I think viewers should know Judge Napolitano is a Republican partisan who is making a point on the Republican side --
KELLY: I think he's a libertarian.
BURTON: Okay. Fair enough.
KELLY: He's not a Hillary Clinton fan.
BURTON: Not a Hillary Clinton fan. And secondly, if the Justice Department really were trying to help the Clinton campaign. Don't you think they would have dealt with this and just smashed with it long before now? Hillary Clinton's been saying that she's wanted to get interviewed since last August. If the Justice Department were really trying to help her politically, they were doing a really bad job at it.
KELLY: Well, she says that. But then she refused to get an interview even to the state inspector general who was looking into her e-mail procedures. And did not get the answers that they wanted. In fact Bret Baier interviewed her today and she stumbled on this question. Watch.
(BEGIN VIDEO CLIP)
BRET BAIER, HOST, "SPECIAL REPORT": The State Department IG though wanted to talk to you and you didn't want to do that.
HILLARY CLINTON (D), PRESUMPTIVE PRESIDENTIAL NOMINEE: It just didn't even -- what they wanted to ask, we had already talked about, talked about in the public arena. And, you know, look, I think that report actually --
BAIER: You said Secretary Clinton. And I just want to press --
CLINTON: The report actually supported what I have been saying for years.
The rules were not clear --
BAIER: Well, you said, hundreds of people knew about that private e-mail.
CLINTON: The practice was used by other secretaries of state. I've said it was a mistake, I certainly wouldn't do it again.
(END VIDEO CLIP)
KELLY: Bill, do you think she handled that one well?
BURTON: Well, I think that she's making a factual point. If the inspector general is asking a series of questions that have already been answered. Separate and apart from the Justice Department investigation, then you know, why would she participate with that part of the inquiry.
KELLY: He's a Democrat, Karl. He's a loyal man. Go ahead.
ROVE: I can answer that question.
BURTON: Right. No. I'm sure that Karl could answer this better than I could, because in the Bush administration, the Justice Department investigated many members of the Bush administration and many of them decided that they didn't want to answer all those questions.
ROVE: No, that's not --
(TALKING OVER EACH OTHER)
KELLY: Okay. Go ahead, Karl.
ROVE: No, no, no, no, no, that's not accurate, Bill. With all due respect, you're talking about the special prosecutor investigation of me and others, and I answered every single question and took every single meeting the FBI wanted me to take. Let me tell you why Hillary Clinton didn't want to meet with the inspector general. First of all, he would ask questions that the FBI would then have access to, and then if she answered improperly, that is to say, if she lied to them, like she's been lying to the American people. She could be found guilty of perjury.
And look, let's be honest. She has misled the American people. This was allowed and permitted. The inspector general report says, it was not permitted. She never asked for it, and she would have refused if she had.
She said nothing classified past through this network. We now know that it's absolutely not true. There was nothing classified at the time it passed through the network. We know that is not true. We have been misled about this, talked about them, and the reason she did not cooperate. And in addition, none of her top aids cooperated with, none of them even returned the written questionnaires to the inspector general, was because they were afraid of getting thereby charged with perjury, what was found out that they were misleading.
KELLY: And this is the problem, Bill. This is her biggest problem, is it not? The distrust of Hillary Clinton. They don't trust Trump on the GOP side according to the exit polls. But they don't trust her far more, they trust him more than they trust her, because her numbers are, I mean, these are Democrats who say like 90 percent don't think that she rates well on honesty and trustworthiness.
BURTON: Look, Megyn, I think if you were -- if you were just listening to this interview, you just listened to what Karl had to say, you would think that Hillary Clinton and her aids answered no questions, participated in no attempt to get to the bottom of what happened here. They have answered
hours and hours and hours of questions.
KELLY: She would not sit with her -- she was the secretary of state, she would not speak with the State Department inspector general. She was the secretary of state.
BURTON: She only. Her people --
(TALKING OVER EACH OTHER)
KELLY: And then I'll go back to you, Karl.
BURTON: Karl, just hold on one second. Karl, hold on one second. She has endlessly answered these questions both publicly and privately. She's asked the FBI to come and interview her, they haven't. And so, I think the notion that the Justice Department is somehow tangled up in this political web trying to help Hillary Clinton, it is just silly. No independent minded.
KELLY: It's a question of whether their boss --
BURTON: One step away from this.
KELLY: Hold on. Hold on. I'm going to give it back to you, Karl, but there's a question of whether when their boss comes out and says, I'd really like Hillary to be president, if you know what I'm saying, whether not James Comey, who's been suggested to be a very independent person. But perhaps, our attorney general says, you know what, I get the message or she is placing a very difficult position. Go ahead, Karl. Take it away.
ROVE: Yes. Let's be clear. Hillary Clinton and none of her top aids talked voluntarily to the inspector general at all. The only reason we're now understanding that her aids are talking to the FBI which is also in that same room are representatives of the U.S. attorney for the Eastern District of Virginia and representatives of the national security division of the Department of Justice. The only reason they're sitting down and talking with them now, is they're being compelled to, so you know, there's a reason why they haven't yet talked to Hillary Clinton, they want to talk to everybody who is involved in this, before they talk to her, so that they know everything they need to know in order to ask her the questions of why did you do this? Who permitted you to -- who do you think permitted you to do this, and go into the meticulous detail of the kind of communications throughout that said network.
KELLY: Got it.
ROVE: That is why --
BURTON: Thank you, Karl. And that is not to me -- sounds like a Justice Department trying to help Hillary Clinton.
KELLY: Question for you, Mr. Burton.
BURTON: -- going into meticulous details.
KELLY: Your former boss may or may not be about to endorse. Are you ready to endorse Hillary?
BURTON: I am ready to endorse Hillary. Yes. I think you would be a great candidate for president, Megyn. I think that you should throw your hat in.
Republicans, people who are independent minded are looking for someone to take down the mantle, Bill Kristol I here is looking for somebody.
KELLY: I have enough headaches, Bill. I have enough headaches. Great to see you both guys. Thank you.
So, we also have new fallout after Trump supporters are attacked in San Jose. And the mayor tries to blame Donald Trump for the beat down of the Trump fans. One of the Trump supporters, a Latino, who took the worst of
it joins us next with his story about what happened to him.
Plus, there is breaking news tonight on talk of a new plan to dump Trump at the Republican convention. Really? Bill Bennett joins us on who is behind this and why.
And then what could be the most important trial in the Baltimore six case starts tomorrow, the driver of the van that had Freddie Gray in it. Faces justice tomorrow as prosecutors try to bring a second degree murder convention against him. Marther (ph) are back in just a bit.
KELLY: We have a follow-up tonight on the violent protests in San Jose. The attacks on Trump supporters and the attempts by the mayor of that city to blame the candidate for the violence there. Protesters in San Jose mostly Latinos according to the Mercury News. Some waving Mexican flags, spot on punched and pelted Trump supporters with eggs last week protesting what they said was the candidate's racism. Four of the worst offenders are now facing charges of assault with a deadly weapon. Despite those arrests, Mayor Sam LicCardo reacted to the chaos on his streets by saying it is Trump's campaign that need to take responsibility and now that mayor is facing a growing chorus of critics.
Joining us in a moment is Juan Hernandez, a Latino Trump supporter who was violently attacked in this group last week. But first we go to Trace Gallagher live in our West Coast Newsroom. Trace.
GALLAGHER: Megyn, two online petitions in Texas and Minnesota have so far gathered more than 10,000 signatures trying to force the resignation of San Jose Mayor Sam LicCardo. And the movement also has the support of 29-year- old Rachel Casey, she's the Trump supporter that was pelted with eggs and tomatoes in San Jose by Trump protesters. Casey Told the TV show "Inside Edition" that she may have provoked the crowd by giving the middle finger to someone wearing a sombrero. But she also claims she didn't start it and was simply standing up for herself like any other American.
She says she was just thankful they weren't tossing bricks and rocks. Other Trump supporters were not as lucky including a man who was sucker punched by a Trump protester, and another who was blindsided. San Jose police were criticized for their lack of intervention but responded by saying, they thought it might make matters worse. And some accused the San Jose Mayor of telling police to stand down. The mayor says impossible.
(BEGIN VIDEO CLIP)
SAM LICCARDO, SAN JOSE MAYOR: The notions there was some stand down order is ridiculous. I don't have the authority to give a stand-down order. I would never give such an order anyway.
(END VIDEO CLIP)
GALLAGHER: The mayor was criticized for saying Trump was responsible for stirring up antagonism and only later condemning the violent protesters. A small group of Trump supporters gathered in San Jose this week saying, it's un-American for people to suddenly be afraid to support Donald Trump.
By the way, the Trump campaign has invited Rachel Casey, the woman pelted by the eggs to appear on stage with Trump at future rallies -- Megyn.
KELLY: Trace, thank you. Our next guest is a Latino Trump supporter who actually attended Thursday night's rally and who went home with a broken nose, a mild concussion and his clothing looking like this. Look at this.
Just for supporting his presidential candidate of choice Donald Trump.
Juan Hernandez is a Trump supporter and member of the Log Cabin Republicans. Juan, great to see you. So unfortunate.
JUAN HERNANDEZ, LOG CABIN REPUBLICANS: You too, Megyn.
KELLY: So, you're on the air. I mentioned that most of the protesters according to the San Jose Mercury News were Latino, because they were there, they said to protest what they viewed as the candidate's racism, his outrageous behavior in their view. And in response to that perception, they came after you. Another Latino who happens to see Mr. Trump in a different way and tell us what they did.
HERNANDEZ: Right. So just walking, turned down the street and come down behind, the way that the cops led us, and out of nowhere, just protesters start coming up to us. Sucker punching and I think there's about three or four on me who were doing -- carrying American flags. Burning the American flags, carrying the Mexican flag and sucker punches. There's about three or four of them on me and on my friend also.
KELLY: Were there any police in sight?
HERNANDEZ: As we were walking, there -- the police have dissipated, there weren't that many, where they -- the police had gone over the -- they weren't anymore. It was like it was riots, right, were happening everywhere. And the protesters were picking out supporters and sucker punching them, taking them down. And I had a friend who had her glasses ripped off and she went and talked to the police and someone that was standing there. And she said, so, why aren't you doing anything.
And an officer said, we were told to have a stand-down by the police chief and mayor. And I don't doubt that. I don't doubt that. She said that because when we were walking around, we saw that, we saw the cops just standing there.
KELLY: The mayor wants to blame Donald Trump and his rhetoric. And there's no question he said some controversial things including about a Hispanic judge, he's an American of Hispanic heritage just like week. But they're presumption seems to be on one. People like you, you asked for it by donning that Make America Great hat, and supporting a candidate who well controversial, has taken positions very, very mainstream on the number of issues and very acceptable to the large majority of Republicans.
HERNANDEZ: Right. So, we have the Trump supporting hats on it. And even if -- we didn't antagonize them. But even if we were to antagonize them, it still does not warrant what they did. And Mayor LicCardo's sole purpose is for public safety. Right? That's his main focus, and it seems like Mayor LicCardo had his vices just because it was against Donald Trump.
KELLY: Now, what do you make of it? You know, in the wake of the Trump dustup last week with the judge. Some of the people has said, he's not going to get a single Hispanic vote. Not a single Latino would vote for Donald Trump. You beg to differ. Tell us why.
HERNANDEZ: So, I like Donald Trump. He is my -- he is going to be the candidate, my next commander-in-chief. And so, I think he'll do the best job, and people kind of comment me about, you know, about the wall and that I was Hispanic and coming out as gay was really difficult but coming out as a Trump Republican supporter was far more difficult to come out of.
HERNANDEZ: And I just have to remember to take the vices away. You know, if the border was there for Canada, you know, to have, you know, to prevent illegal people coming in here or drug cartels. And if I support it there, I have to be un-biased. And if they move it to Mexico, just because it's my heritage, I still have to look at it as -- for the general good of the nation.
KELLY: Wow! Wow! I'm glad you're okay. Thank you for coming out and
telling your story. You look great.
HERNANDEZ: Thank you.
KELLY: So, all the best to you and I hope we'll met with you again.
HERNANDEZ: I appreciate that, Megyn. Okay. Thank you.
KELLY: So wrong.
It doesn't matter what you think. You disagree with a candidate, great, go out there and get on your stamp and say so. You don't throw eggs at somebody, even if she gives you the finger, and you don't punch some guy who's there to support his candidate. This is America. There is such thing that's called the First Amendment. It's actually really important.
Go look it up.
Well, we also have breaking news in just the last couple hours, about a new effort to dump Trump at the GOP convention. Really? And replace him with the third party candidate. Bill Bennett is next on that.
Then a bipartisan group of California voters joins us with the preview of just how hot this political fight is about to get. Wait until you see this. This is new.
(BEGIN VIDEO CLIP)
FRANK LUNTZ, POLLSTER: I just want a word or phrase to describe Hillary Clinton.
UNIDENTIFIED MALE: Proven incompetent.
UNIDENTIFIED FEMALE: Pure evil.
(END VIDEO CLIP)
KELLY: Breaking tonight. Israeli security on high alert. Just hours after four people were killed, in a terror attack right across the street from the headquarters of the Israeli defense forces today. You can see here. This is from a restaurant security camera, panic erupting as Tel Aviv shoppers run for cover, while men, one witness says, they were dressed as Orthodox Jews opened fire. In the aftermath, investigators are now determining exactly how this happened.
John Huddy is live in Tel Aviv with the newest developments. John?
JOHN HUDDY, FOX NEWS CORRESPONDENT: Yes, Megyn, I'm standing in the exact spot where this attack happened, where the gunmen were seated at one of these tables. They got up, on turned around just like this, shot a person point blank, you can see where there's been evidence markers, this is where one of the bullets ricocheted or at least went off the window there. The other gunmen turned in the opposite direction of the camera and opened fire as well. There are a number of evidence markers, you saw the one on the window. Other circles like this, where they circled around the bullet casings.
And let me tell you something, Megyn, there are a lot of those circles, a lot of evidence markers on the ground here, outside these cafes. Now, this happened around 9:30 in the evening. A beautiful summer evening, this is central Tel Aviv, it's an open air market and mall, a lot of restaurants, a lot of bars. Four people were killed. We don't know their ages. We don't know their identities. Another at least five others wounded. Severely and moderately as well.
Here's what we know about the gunmen. They're in their early 20s, they're Palestinian. And their cousins from the West Bank area of Hebron. This is an area that's been a flashpoint for violence between Palestinians and mostly Israeli border police and security forces, and your daily stabbings
-- attempted stabbings. It's unclear though Megyn, if these two attackers were in any way connected to any type of terror cell or terror organization. And why they chose this place in particular, if they were so-called lone wolf attackers as has been the case in other attacks, including two recent attacks here in Tel Aviv as well.
This has been the worst so far this year, however. And as you said, the investigation continues, we understand that Israeli security forces have stormed the village where these two gunmen are from. The investigation continues, and Prime Minister Netanyahu called this a savage murder and terror attack. Megyn, back to you.
KELLY: That is chilling. John Huddy, thank you.
Well, also breaking tonight. A series of new calls now to replace the presumptive Republican nominee, Donald Trump at the Republican Convention in five weeks. These calls come as a major conservative voice came out calling the last 72 hours of Trump's campaign his worst ever. Yes, that includes Mr. Trump's speech last night. And today called for changing convention rules to give the GOP a new last minute nominee. Here's Hugh Hewitt.
(BEGIN AUDIO CLIP)
HUGH HEWITT, CONSERVATIVE RADIO HOST: The Republican Party is facing -- the plane is headed towards the mountain after the last 72 hours. I think the party ought to change the nominee because we're going to get killed with this nominee. And I have never said that. I waited until after the primary was over.
I stayed Switzerland to the end, and in 72 hours, dovetailed with that.
They ought to get together and let the convention decide it. It's awful, and it ended bad last night. If you're just joining me, the Donald Trump speech last night, which was his moment to drain the toxicity...
(END AUDIO CLIP)
KELLY: And he was disappointed, Hugh. Joining me now, former Secretary of Education under President Reagan, the host of the Bill Bennett podcast and the author of "Tried by Fire," Bill Bennet. Bill, good to see you. It's not just Hugh Hewitt, right? There are others now. Mitt Romney is having his annual summit, there's a bunch of Never Trumpers out there. Also, Reince Preibus is going and Paul Ryan is going. There's a question about whether they're going to try to -- who's going to try to persuade whom over to which side. And the goal they're saying is to now try to get the delegates on the first ballot Bill to abstain so that on the second ballot or third ballot they'd be free to vote for somebody they want and the name they're mentioning right now is Scott Walker.
BILL BENNETT, FORMER SECRETARY OF EDUCATION: Yeah. Hugh Hewitt, he's my buddy, we were colleagues at Salem radio. I don't know if you know this but he took over my morning radio show. I didn't know this was his point of view when he took over my morning radio show.
KELLY: Well, he just came out with it.
BENNETT: Anyway, we -- I know, I know. We differ on this, but no, this is still rumbling around, it's still out there. And look, I understand the anxiety caused by the last -- by the 48 hours of the 72 with you and I were on last week talking about the judge and the judge -- comments about the judge. And you were very upset about it, and you were absolutely right to be, we all were.
And then it looked like he was going to double down, maybe triple down. And so the worry began as this becoming an obsession, which is going to block his vision from talking about all the other things. Well, the other things appeared last night. Admittedly with the teleprompter, admittedly with, you know, a very closed whole speech, but the speech was excellent. He returned all the themes that mattered, and I think reassured a lot of people. Very hard hits at the Clinton's. He's not pulling anything back there.
But now the punches are aimed and they're aimed at the right targets rather than targets that won't pay off. Look, I think we'll have this -- I think we'll have this intermittently as we go up to the convention, maybe even at the convention. I just don't know how you're going to persuade these thousands of delegates that they were wrong and someone else needs to step in.
KELLY: What they are saying -- I'll tell you what they say, they say that these delegates are holding their nose -- many of them to vote for Donald Trump and they believe these Never Trumpers, Erick Erickson ans others, that there's an opportunity here to get them to do what they think is the right thing.
And to say -- as Hugh Hewitt put it, you know, the plane is going to go into the side of the mountain if they don't change up the nominee. You know, they've tried this upfront many ways unsuccessfully and this is a last ditch effort to stop him from actually being the nominee.
BENNETT: I hate this plane into the mountain, that's the German pilot, you know, it's just such a horrible memory brought back. Terrible, terrible analogy, I just hate it. But look, it's not going to happen. Because Trump is there by virtue of the strength of the delegate vote. Can rules be changed at the convention? Of course rules can be changed at the convention. Will they be? No.
They also need to be reminded of this fact, given all the trouble that Trump has caused and a lot of it for himself. I agree with Newt Gingrich and others. He is still pretty close in the polls, and the other remarkable story this week was the record that Donald Trump set in turning out new voters.
More primary voters for Trump than anybody in history. That's got to be taken into account too. We all measure , we all weigh in terms of holding your nose, we held our nose through lots of elections. If you're in politics, you know, it's not odor free.
KELLY: It's stinky.
BENNETT: Well, it can be. It can be stinky, spoken like a mom. Very nice.
KELLY: Phil, it's always a pleasure.
BENNETT: Thank you.
KELLY: Great to see you. Well, say what you will about the merits of these two political candidates. They have engaged some voters with an exceptional level of passion. They have infused them as Frank Luntz learned last night. Watch.
FRANK LUNTZ, PUBLIC OPINION GURU: I just want a word or phrase to describe Hillary Clinton?
UNIDENTIFIED FEMALE: Deceitful.
UNIDENTIFIED MALE: Negligent.
UNIDENTIFIED FEMALE: Ready to take over this country and make it better.
UNIDENTIFIED MALE: Proven incompetent.
UNIDENTIFIED FEMALE: Pure evil.
UNIDENTIFIED FEMALE: Absolute criminal.
UNIDENTIFIED FEMALE: Competent woman.
UNIDENTIFIED FEMALE: Untrustworthy.
UNIDENTIFIED FEMALE: Greedy.
UNIDENTIFIED FEMALE: Corrupt.
LUNTZ: What is it about Hillary Clinton that makes her so divisive? Explain this to me. Go ahead.
UNIDENTIFIED FEMALE: Because she's a woman.
UNIDENTIFIED FEMALE: No, I don't agree. I would vote for most other women besides Hillary Clinton.
LUNTZ: So, what is it? You say she's a woman, so is...
UNIDENTIFIED FEMALE: There's a double standard in this country. We all know that. It has everything to do with gender. Women have to do everything in high heels and backwards.
UNIDENTIFIED FEMALE: The only reason Bill Clinton got elected, okay? She's the one that was behind Bill Clinton if you ask me.
UNIDENTIFIED FEMALE: Jumped on that star for the White House.
UNIDENTIFIED FEMALE: She wants to be there.
LUNTZ: Okay, so you're -- I start talking about Hillary Clinton and all of you are talking over each other. I only mentioned her name. We go right through, and you guys are just...
UNIDENTIFIED FEMALE: The same thing happened with Trump. You told us to be outspoken.
LUNTZ: But I thought you guys would be respectful of each other. What's going on in here?
UNIDENTIFIED FEMALE: We do respect each other. Trump is the one who doesn't respect anyone except himself. That's it.
LUNTZ: Go ahead.
UNIDENTIFIED MALE: Our political system causes people to just talk past one another, with all their talking points. No one's talking to each other about any of the big problems we have or any ways to resolve them. We don't have ideas in this election. We're talking about personalities right now
UNIDENTIFIED FEMALE: Yes, the biggest problem is our national security and knock (ph) the hell out of them is not a strategy.
UNIDENTIFIED MALE: It's true. And I wouldn't give Donald Trump any nuclear weapons or military power.
UNIDENTIFIED MALE: I don't like the smug moral self-superiority that is projected by the Democrats generally and by Hillary Clinton in particular.
It doesn't work for me. I don't want the ideology. I don't like the ideologues.
LUNTZ: Okay, I want someone to defend Hillary Clinton here. Who's going to speak up on her behalf? Go ahead.
UNIDENTIFIED MALE: You have to go back to the point about the racism with Trump with this. You can't say that everyone in this country has -- Donald Trump hasn't been in the forefront refuting (ph) everyone in the United States.
LUNTZ: Yes, that's a good point. The question was...
UNIDENTIFIED FEMALE: The business (ph) that's shown by Hillary Clinton and taking responsibility for what she's done. She actually -- she surrounds herself with people. Please listen, let's have some civility. And I'd like to speak to your point. I have a 6-year-old, she watches on television and sees this lack of civility.
It feeds into our communities, into our homes, into our neighborhoods and we can stop that by having these conversations and talking about the fact that what we really want is the same for all of our children. We want safety, we want a good economy, we want jobs, health but -- you cannot have that when you have someone who will not take advice from others, who will not surround himself with leaders (ph).
UNIDENTIFIED FEMALE: She is such a liar. She has lied about everything, her server, Benghazi, I mean, Whitewater. Ben Foster.
UNIDENTIFIED MALE: What about the lack -- what about the lack of civility we see in Jose (ph). When we see people that burn the American flags -- People have total disregard for the right for Americans to assemble, whether you're for Clinton or whether you're for Trump.
UNIDENTIFIED FEMALE: The many (ph) times of protests and demonstrations have never has happened if the Trump...
UNIDENTIFIED MALE: And this is exactly what the media wants us to do.
LUNTZ: Hold on. Go ahead.
UNIDENTIFIED MALE: Look, this is the point of all of the -- what the media wants. It just has to come down to the economy. Nobody talks about it. This is all a lark to get Trump not elected because they want to say he's a racist, which he's not. They want to say that he's evil, he hates everybody. He doesn't. The economy is important and only Trump will be able to do it.
UNIDENTIFIED FEMALE: When you say racist things, it makes you a racist. If you can't sit up and call people with a face, oh, he's a Mexican, and the man hasn't done anything yet in the court yet, he just wants that case to be dismissed and it's not going to be dismissed, he's going to pay the piper.
LUNTZ: Go ahead.
UNIDENTIFIED FEMALE: He signed a petition. The lawyer -- and the judge, I'm sorry, the judge signed a petition to boycott Trump. I mean, there's got to be -- there's something there. There's something there, I don't know about the La Raza thing, but there's something there.
LUNTZ: So, what does this mean? Are we going to have five months of this?
UNIDENTIFIED FEMALE: Yes, yes, yes, we are.
(END VIDEO CLIP)
KELLY: Oh, boy. Coming up next -- by the way, thank you Frank Luntz and focus group -- great job. What could be the most important trial in the Freddie Gray case, will begin in less than 24 hours. Just this minute, there was big breaking news in what the prosecution's office did and what the defense is now arguing. Don't -- stay tuned, next. Mark and Arthur.
KELLY: There's a big story breaking in the prosecution of six cops in Baltimore right now. Just hours before the start of the trial, for one of the key cops involved in this, Officer Caesar godson, he's the one who was driving the van when Freddie Gray died or suffered the injury that would lead to his death. Now, Goodson is charged with murder, three counts of manslaughter, and also assault in connection with the death of Freddie Gray. Now, his attorneys are arguing tonight that the prosecutors have withheld a critical piece of evidence which they have just found out about and wait until you hear the prosecution's explanation. Joining me now, New York trial attorney Arthur Aidala and criminal defense attorney Mark Eiglarsh. Both of you guys were former -- are former prosecutors, now defense attorneys. Just to lay it out, there's -- that Freddie Gray was killed as a result of injuries in the back of that police van. Six cops have been blamed for the death for negligence, for assault, murder. There was another man placed in the van along the ride that Freddie Gray took.
His name was Donta Allen, and what has come out now on the eve of Officer Goodson's trial, Mark, is that Donta Allen had a conversation with the prosecution, and told the prosecution Freddie Gray was thrashing around in the back of that car which is consistent with the defense theory that the man did this to himself. He suffered his injury based on his own actions.
And that the prosecution did not reveal this discussion with a key witness in the case to the defense, and the only reason they found out about it is because one week ago Donta Allen's attorney called up Ceasar Goodson's -- the cop's lawyer, and said, you need to know this happened. Your thoughts?
MARK EIGLARSH, CRIMINAL DEFENSE ATTORNEY: Megyn, if this is all true, the prosecutors in this case, violated the constitution. The U.S. Supreme Court ruled in Brady versus Maryland that the prosecution has an obligation to turn over potentially favorable evidence to the defense and to not do so is a violation of the due process clause. That's exactly what happened here, they don't get to decide whether the evidence is good or whether it's farcical like they alleged. You turn it over, you let me put that testimony on in trial and let the jurors decide.
KELLY: Right, this officer has rights. He has rights to defend himself. And Arthur, what they're saying again, is this the Baltimore Sun reporting this? Yes -- what they're saying according to the Baltimore Sun Arthur is, well, it didn't produce any evidence, our meeting with him, because Donta Allen was consistent with his inconsistence and our meeting with him was really farcical and unproductive. We don't intend to call him for as a witness so we didn't need to disclose to you any of the exculpatory things he said that would help your client.
ARTHUR AIDALA: So, my understanding is actually, what did take place when they spoke to him on two dates. They spoke to Allen on May 4th and on May 7th of last year. They did disclose what took place on May 4th and they told -- they said what statements he made. And then what they didn't disclose, there was another meeting on May 7th. And what they're saying now is that May 7th meeting was totally unproductive, it didn't make any sense to us, we're not calling him as a witness and we don't find that it's exculpatory. We turned over what was exculpatory, which was in the May 4th meeting. Brady only says you have to turn over what's exculpatory evidence, what gives your client a likelihood of success at trial. And they're saying that didn't exist and therefore, the judges will have a hearing tomorrow to determine what was said and what should have been turned over and what was not turned over.
KELLY: Mark, twice before -- twice before this judge, Judge Williams has determined that the state improperly failed to produce discoverable evidence, evidence they needed to give to the defense. In this case, on two prior occasions, they're arguing this is the third strike, that the prosecution, Marilyn Mosby's office does not get the benefit of the doubt.
EIGLARSH: I guarantee you this judge is not going to be happy with the prosecution. If it's even close, if it's a close call, what prosecutors across the country do -- good prosecutors, ones who recognize the importance of the constitution, they turn it over in the abundance of caution. Arthur knows that.
AIDALA: That's correct, but Mark, here's a question because I'm not 100 percent sure of the answer. But I believe, Megyn, at this point, now that they do know it, the violation has been cured so it's not reversible error anymore because now the defense knows about it and they could fix it before the trial.
KELLY: Here we have a sound bite of Donta Allen, the witness that we're talking about. Watch this, May 2nd, 2015.
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: Now, the story is, according to a newspaper report of the "Washington Post" that there was screaming in the van. That you said that he was intentionally screaming and hurting himself.
DONTA ALLEN, PROSECUTION WITNESS: Untrue.
UNIDENTIFIED MALE: Okay.
ALLEN: Very, very, very untrue. Very untrue. I never talked to those investigators. I never talked to nobody. I got my own personal lawyer, who I haven't talked to, because of the things that have been going on. The only person that I talked to was homicide. The same thing story I'm telling you all, I told them.
(END VIDEO CLIP)
KELLY: We know that's not -- we know he talked to investigators, but that was his reversal from his original testimonial, Arthur, and the prosecution wants to put him on the stand for his original statement to the investigators -- for the defense, the defene.
AIDALA: But now -- okay, I was going do say, because the prosecution is saying now, look, we're not going to call -- what's going to happen is, tomorrow, the judge is going to hold the prosecutor's feet to the fire, ask them what did he say, when did you know this? But the real remedy here is to allow the defense attorney to pursue this in any way he wants this, not to dismiss the case against the defendant. That's a legal remedy
KELLY: This is sketchy business -- this is sketchy business.
EIGLARSH: This is crazy Megyn.
KELLY: This is a man's freedom. They're charging Ceasar Goodson with murder. Murder. You err on the side of disclosure. Good to see you both.
AIDALA: Thank you.
KELLY: Still ahead. A question of media fairness as the same reporters who hammered Sarah Palin about her wardrobe back in 2008 are strangely silent and uninterested in an unflattering story involving Hillary Clinton and her
$12,000 coat. Joe Concha is next on that.
KELLY: Well, in 2008, you might remember the media's furor over then VP candidate Sarah Palin's $150,000 wardrobe makeover. Fast forward to 2016 and my next guest says the press is largely silent when it comes to Hillary Clinton's similarly lavish fashion choices, like the high end Armani jacket she wore to a primary victory speech that addressed issues of income inequality. Joining me now, Mediaite columnist Joe Concha. Joe, good to see you.
JOE CONCHA, MEDIAITE COLUMNIST: Good to see you.
KELLY: So, her jacket cost $12,000
KELLY: $12,500, and the point is, you know, I love fashion. You know she made a lot of money. She earned it. God bless.
CONCHA: Support the economy. Good for her.
KELLY: However, the media doesn't care now that it's a Democrat, I guess.
CONCHA: That is a big thing here. Obviously because you look back at 2008, Sarah Palin, CBS news sends a reporter up to Wasilla to go to a consignment (ph) shop -- basically a thrift shop -- interviews the owner, "How often is Governor Palin come here? How much money does she spend? Is she spending money on her family as well?" and the headlines were wall to wall, like MH370 wall to wall.
KELLY: They made her out to be a huge diva.
CONCHA: Exactly and then Ann Romney, same thing, wore a $900 shirt on the air in 2012 and Twitter nearly broke over this and the Washington Post headline I have right here, "Ann Romney $990 shirt indicative of a tone- deaf campaign." So, in other words...
KELLY: And Mitt Romney's wealth is also slammed repeatedly.
CONCHA: Completely. He's building an elevator in his car garage, and that's horrible, and he's out of touch as well. And 2016 comes, Hillary Clinton wears Armani at an income inequality speech, right.
KELLY: You're detecting hypocrisy.
CONCHA: Slight, yes.
KELLY: You know they pay me to communicate for a living.
CONCHA: It's like a sixth sense with you. Good job. So, you would think now here in New York, the media capital of the world, you don't have to fly to Wasilla to get your answers. An hour north is Chappaqua where the Clintons live. You can talk to plenty of store owners there to see what they're spending, and if it's on their family, and what the range is as far as budget, and nothing is happening here. And I think it's, you know what, a Republican is rich and running for president, and they're out of touch.
Democrats running for president, or a Kennedy or Clinton, they're royalty.
KELLY: That's right, or a Kerry. Remember John Kerry, he's got boat loads of dough, no one cared about that, only if you're a Republican.
CONCHA: That's true -- that's true, and look, you can get good clothes cheap. I mean, this time, Marshall's, faux pas. It's not hard.
KELLY: Listen, I'm from Albany, New York. My mom says at the Fashion Bug you can get great things. Great.
CONCHA: Fashion bug?
KELLY: Don't knock it until you tried it, Joe.
CONCHA: All right then.
KELLY: Great to see you.
CONCHA: Good to see you.
KELLY: Don't go away. We'll be right back.
KELLY: Don't you think it's interesting they're always reporting on the women fashion, how much that costs? I mean, we never hear anything about president Obama's suits, how much they cost or Trump's suits, how much they cost? Mind your own business. Right? Although $12,500, I mean, what was in that thing? Is it made out of gold? I'm going to Google it. Thanks for watching, everybody. I'm Megyn Kelly. This is "The Kelly File."
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