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Kelly File

Krauthammer: Sanders exit has been 'carefully choreographed'

This is a rush transcript from "The Kelly File," June 9, 2016. This copy may not be in its final form and may be updated.

MEGYN KELLY, HOST: Breaking tonight, a big shift in the race for the White House as Donald Trump loses ground to Hillary Clinton in brand- new Fox polling while Hillary Clinton's numbers head South on honesty and her e-mails.

Welcome to "The Kelly File" everyone, I'm Megyn Kelly. For the better parts of two weeks, the Trump campaign has been hounded by questions about the fraud case against his now defunct Trump University and by Mr. Trump's own comments suggesting the judge in that case has ruled against him due to the fact that the judge is of Mexican descent. Now it appears that all of this may have taken its toll. According to a brand new Fox poll, Hillary Clinton is now leading Donald Trump 42 to 49 percent within the margin of error and it's not because she's gaining any supporters.

In fact her overall numbers have stayed the same. Her honesty numbers have fallen. But Mr. Trump's numbers have seen an erosion of six points in the past two weeks. This comes on the same day that President Obama officially put his support behind Hillary Clinton, despite the fact that his administration is investigating her e-mails and whether she should be criminally charged.

Charles Krauthammer is here on all of this in a moment.

Plus, Marc Thiessen and Richard Fowler is here on the new report that Mrs. Clinton may have compromised CIA assets around the world with the email maneuvering.

But we begin tonight with our Fox News digital politics editor Chris Stirewalt on this polling. Chris, good to see you.  

CHRIS STIREWALT, FOX NEWS DIGITAL POLITICS EDITOR: How you doing?

KELLY: So, it all comes down to the Independents because Trump lost three points with the Republicans but he has lost 11 points with the Independents over the past few weeks.

STIREWALT: Right. So, the way to think about this, as we have to remind everybody. Independents aren't moderate, Independents go from very liberal to very conservative, they go across the whole spectrum. They just have low attachment to a political party. And what you see with Trump is well, he dropped with Republicans a bit, a few points with Republicans. He'll still in the 80s. He's still there with the Republicans.

For the Independents, they can be conservatives who would normally not want to vote for a Democrat, but just have low attachment to the Republican Party, may hate the Republican Party and don't particularly want to be part of it. And this shows what the challenge for Trump is. He's got to do this with the Independents. There aren't enough Republicans.

KELLY: The lesson in here, if any, and you know, this is, I mean, we're in June, right? So, he's got a lot of time. But is the lesson that the stuff that would work for him during the primary campaign or certainly would not alienate his core group of supporters during the primary campaign is not necessarily going to serve him well in trying to actually win the general election?

STIREWALT: Right. Tim Tebow was a great college quarterback when he played for Florida and did all kinds of great stuff. But he couldn't even stand on the New York Jets once he got to the NFL. And the deal is, you've got to play a different game in a different level and it's a different thing to be in the general election than it is to be in the primary. And also when he's in the primary he had some guys who were dopes that he was smacking around pretty good. And by the way, the press is rooting for him as he's beating up Republicans. And then you get to the general election, he turns and the press treats him differently and his opponent is different.  

KELLY: Now, meantime he's beating her by 15 points with men, she's beating him by 18 points with women. And in the meantime the enthusiasm seems very low. It says, Trump supporters basically 50/50. Those who are happy to vote for him, those who have to hold their nose. With her it's about 60/40, 60 percent happy, 40 percent have to hold their nose to vote for her.  

STIREWALT: Yay. The American electorate is so enthused right now about this election. The reality is getting -- Hillary Clinton has not yet -- this poll was in the field through Wednesday, so it got some of what she'll get out of the bounce out of beating Bernie Sanders. But we haven't seen the next part where the President and the Democrats rally around behind her. She's going to pick up some numbers the way that Trump picked up numbers after he clinched. So, she's got a little -- that enthusiasm number will go up a bit as President Obama and other popular Democrats say she's not so bad. Come on.  

KELLY: Uh-hm. It's amazing the see the honesty numbers now. Sixty percent of the people believe that she's lying about her e-mails were handled. That's up a couple of points in September. And yet still her overall numbers, she didn't go up but Trump went down. So she's in the lead. And they believe she put National Security at risk, 57 percent of the public believe she did that by mishandling those emails which we have breaking news on this evening. Stirewalt, thank you.

STIREWALT: You bet.  

KELLY: Also breaking tonight, President Obama makes his endorsement of Hillary Clinton official. Despite the fact that his administration is investigating her use of a private e-mail server that may have put national security at risk. In a video that was actually recorded on Tuesday, President Obama argued she's the best person for the job. Watch.

(BEGIN VIDEO CLIP)

PRESIDENT BARACK OBAMA: I know how hard this job can be.  That's why I know Hillary will be so good at it. In fact I don't think there's ever been someone so qualified to hold this office and I'm with her. I am fired up and I cannot wait to get out there and campaign for Hillary.

(END VIDEO CLIP)

KELLY: This comes on the same day President Obama sat down with Mrs. Clinton's Democratic challenger Bernie Sanders. Afterwards, Mr. Sanders was not ready to say that he's exiting this race but he did signaled a willingness to help defeat Donald Trump.  

(BEGIN VIDEO CLIP)

SEN. BERNIE SANDERS, I-VT., PRESIDENTIAL CANDIDATE: I spoke briefly to Secretary Clinton on Tuesday night and I congratulated her on her very strong campaign. I look forward to meeting with her in the near future to see how we can work together to defeat Donald Trump.  

(END VIDEO CLIP)

KELLY: Following all of that, Senator Elizabeth Warren of Massachusetts got in on the action taking Mr. Trump on for his comments about Judge Curiel in that Trump University case, dropping a loaded carriage in the process.  

(BEGIN VIDEO CLIP)

SEN. ELIZABETH WARREN, D-MASS.: Trump is picking on someone who is ethically bound not to defend himself. Exactly what you would expect from a thin-skinned racist bully. Donald Trump is a loud nasty thin- skinned fraud who has never risked anything for anyone and who serves no one but himself.

(CHEERS & APPLAUSE)

(END VIDEO CLIP)

KELLY: Joining me now, Charles Krauthammer, a Fox News contributor and author of the book, "Things That Matter."

Charles, great to see you. So, what does it tell us now, you've got the President, you've got Bernie signaling the end is near and earlier this evening, you had Senator Elizabeth Warren come out full-throatedly in support of Hillary.  

CHARLES KRAUTHAMMER, FOX NEWS CONTRIBUTOR: This is already carefully choreographed Kabuki play. And now I think it's rather well done. It starts with the honoring of Sanders by having him meet with the President, the Vice President, the head of the Senate. Then you get the official endorsement which as you've said had been recorded already in on Tuesday.  In a year of a hundred surprises in this campaign, this was the least surprising of all developments.

Then you get Bernie Sanders coming out not withdrawing, because that would have been seen as a capitulation. The withdrawal has to wait about a week and that will be the D.C. primary. He said, I'll contest that. Then obviously he will step aside. He'll have his meeting with Hillary. They will decide on what the price is for his acquiesce sense and his support.  And then there will be the joint announcement. You can write this script in advance and everybody plays his or her part.

KELLY: So the Dems are coalescing and --

KRAUTHAMMER: Yes.

KELLY: -- we're seeing something very different in part on the Republican side. I mean, Trump has managed to get some 86 percent of the GOP behind him but the new polls as we've just discussed show that he's down -- he's down six points from the last poll we did, the head-to-head matchup and he's down within those numbers significantly. Now 11 points Charles with Independents. That seems to be where the loss came from.  

KRAUTHAMMER: Well, I think it's pretty clear where the hiccup is coming from, and that is from the statement he made about the so called Mexican judge born and bred in Indiana. You know, that kind of -- there are a lot of charges and mistakes and slips you can make in American politics.  Racism is the one unforgivable one. Jimmy Carter once spoke offhandedly in 1976 when he was running about ethnic purity in neighborhoods and he was absolutely dead in the water until he made a joint appearance with Martin Luther King, Sr. who essentially gave him abs solution.

And I think this is a little bit different. I don't think it will sink his campaign. But it certainly, it counts, the statement about the so-called Mexican judge. It certainly counts much more than any of the other slipups. When you get the leader of your party in the Congress, meaning the Speaker of the House Paul Ryan saying this is a textbook case of racism, you've got a real problem. And then as a result you get one senator in Illinois who withdraws his support of Trump --

KELLY: Uh-hm.

KRAUTHAMMER: You get the governor of Wisconsin, a very popular guy who's suspending his support. So the coalescing that was happening after Trump born Indiana is now on hiatus.  

KELLY: But you know the other thing about Trump is people express their outrage when he makes these incendiary statements. And then they seem to move on from it very quickly. You know, Trump, he does a lot of controversial things but it seems like his supporters believe they can see right past that to a good man who just says stuff that gets him in trouble  and the line is he's not a politician, he's not filtered. You know, that kind of thing. I don't know. Like there's nothing in the past to suggest this is going to affect him in November.  

KRAUTHAMMER: But let's remember, as you said, his supporters is the key phrase in what you said. His audience until now has been Republicans with a large plurality supporting him. His supporters won't be swayed by this one way or the other.

KELLY: Uh-hm.

KRAUTHAMMER: But as you also pointed out, with Independents he's now down -- he's lost quite a lot of ground among Independents. Those are the persuadables. Those are the people who don't like Hillary and they don't like Trump and they're going to have to choose. But an issue like this can damage him in a way that can be really difficult to recover from. I'm not saying it will. He's defied all of the odds. But I think if you want to account for what's happening now, yes, no movement against him among his supporters but it's the non-supporters, the waivers who are the real prize here.  

KELLY: Uh-hm. What do you make -- you mentioned Scott Walker. And we reported last night that there is a movement under way in earnest right now to actually get the delegates at the Republican National Convention not to vote for Trump even though he's the presumptive nominee in the first ballot to abstain. And the name they're circulating now is a possible alternative is Scott Walker. And somebody asked Scott Walker about it and he said, are you and he said, I would support the nominee. Trump is not the nominee yet. Do you think that this has any chance? I mean I know the judge thing was controversial but was it that controversial?

KRAUTHAMMER: This is a repetition. If it ever happens, the parting of the red sea. And that happens only every few thousand years.

(LAUGHTER)

There is no way this is going to happen. This is another of the fantasy of people who can't accept the reality of Trump.

KELLY: Uh-hm.

KRAUTHAMMER: Trump is reality. He's going to be the nominee. Can you imagine if the guy comes in with a fairly substantial majority of the delegates or at least the pledged delegates who have to vote for him, first ballot and he's denied that? I mean Trump is talking about riots in the arena, you know, with a kind of an ominous edge. But that is a prescription for mayhem in Cleveland.

KELLY: Uh-hm.

KRAUTHAMMER: I can't see it happening.

KELLY: Great to see you, Charles. Thanks for being here.  

KRAUTHAMMER: My pleasure.  

KELLY: Well, tonight National Security experts are raising new fears that the mess created by former Secretary of State Hillary Clinton and her private e-mail server may have revealed the identities of CIA personnel.  Potentially risking the lives of undercover operatives.

Marc Thiessen is a Fox News contributor and fellow at the American Enterprise Institute. And Richard Fowler is a senior fellow at the New Leaders Council and a nationally syndicated radio host.

That's very much in question, whether she risked the identities of CIA agents. But it has been reported now that she engaged in correspondence over her e-mail, her unsecured server discussing CIA matters including the drone program which the State Department was allowed to weigh in on in an unsecured fashion prior to the drone strikes, Marc.

MARC THIESSEN, FOX NEWS CONTRIBUTOR: No, that's exactly right, Megyn. And look, what we have here is a dangerous conversation of negligence and incompetence. So, the incompetence is, that we have at least 2,000 Clinton e-mails that include classified information, including 47 that have information on either CIA personnel or activities. So, those are both highly classified facts.

KELLY: Uh-hm.

THIESSEN: Any foreign spy agency that broke into her unsecured server in the basement of her Chappaqua home has that information. Now they might not know that they have it because the CIA personnel or activities might not actually be flagged in the e-mails. So this is where the incompetence comes in. The State Department gives them a road map to figure all that information out. They put out 55,000 pages of her e-mails with redactions of all of the classified information and they helpfully mark all of the classified information about the CIA 47 times it says the notation B-3 CIA personnel organization.

What that means is any foreign government who has those e-mails, because they hacked them, now just has to check it against this information to find all of the relevant information about either CIA personnel or operatives or about drone strikes or other CIA activities that might not be in the news.  

KELLY: They gave them the other piece of the puzzle.  

THIESSEN: Exactly.  

KELLY: The state Department in redacting her e-mails and trying to, you know, deal with the mess she created gave them the other piece of the puzzle, the potential hackers. Richard, you've got to see this as a problem.  

RICHARD FOWLER, NEW LEADERS COUNCIL: There's no question, Megyn, that her having this e-mail server in her basement is problematic. I said that over and over again. But I do think to get to where mark is it requires a lot of assumptions. First, it requires you to assume that her e-mail was hacked by a foreign government. The OIG report from the State Department indicates that her email was not breached any point in time.

The second assumption you have to make is that they downloaded all the e- mails. The third assumption you then have to make after that is that they are reading the 55,000 e-mails that they have and they're matching them up and you also have to assume that the CIA operative is still in the same location. Is this problematic? Yes. Did she mean to do it? No. Is this what Scooter Libby did? Absolutely not. And so I think there might be a little bit of ambush or there is no fire here at all.  

KELLY: Go ahead, Marc.  

THIESSEN: Well, first of all, that's what spy agencies do. They do read 55,000 e-mail and go through them.  

KELLY: Isn't that amazing?

(TALKING OVER EACH OTHER)

THIESSEN: No, first of all, you're not right about that, Richard. First of all --  

FOWLER: That's what the OIG said.  

KELLY: Go ahead, Marc.  

THIESSEN: No, no, no. The OIG said that her server was hacked and they had to shut it down at one.  

KELLY: That they had to pull the plug out of the wall.  

THIESSEN: Number one. To stop the hack. They had to pull the plug out of the wall. But two, the NBC News reported last August that Chinese hackers, Chinese Operation Army, in an operation called Dancing Panda broke into the unclassified government e-mail of White House officials and downloaded their e-mails. And also there is The New York Times reported that Russians hackers broke into the unclassified White House and State Department servers to get even President Obama's e-mails.

FOWLER: But --

THIESSEN: No, hold on. Those -- her private server in the basement of her Chappaqua home is not nearly as secure as the unclassified e-mails in the White House and the State Department.

(TALKING OVER EACH OTHER)

KELLY: Michael Flynn who used to head up the DIA which is the sister to the CIA but focuses more on military defense. He said there's no question in his mind that the Chinese and the Russians and perhaps others hacked into her server e-mail.  

FOWLER: Megyn, I hear all of that. But the OIG report on page 59 indicates that there was not a security breach on her private server. So, either you're going to agree with the State Department OIG --

KELLY: But the Inspector General cannot say that definitively.  

FOWLER: Based on their evidence, they've indicated there's not a breach.  Either way for Mark's scenario to be possible, it requires tons and tons and tons of assumptions that we just don't know.

THIESSEN: Richard --

FOWLER: Shouldn't have even been a risk.

KELLY: That's the problem.

FOWLER: Why? But here's the thing.

KELLY: Why were they so stupid with all due respect to release the information. Just in case you weren't sure this is the CIA agent. Right here. Like, oh wait a minute. Somebody might already have this document.  Perhaps, I shouldn't give them the -- CIA, CIA. All right, I got to go.  

THIESSEN: Don't read the 55,000 pages. Just read our key and go straight to the juicy bits.  

(TALKING OVER EACH OTHER)

KELLY: If they're going to go through the aggravation of hacking into the server, they're actually going to give the time to take the 55,000 documents next to the State Department labels. That you know, the key, it's like, you know, the key like you do on the kid's menu. You know what I'm talking.

(LAUGHTER)

I got to go. I got to go. No, I had -- I stole the last word. I'm sorry.  

Up next, Donald Trump not the only candidate facing questions over unfair business practices. You know Trump University and all of the trouble he got into for that? We'll bring you a report on the Clinton's University problem and why no one is discussing it. Professor Jonathan Turley brought the details to life, he is here next.  

And a federal court reaches a decision that a major Second Amendment case with some gun advocates warning, the move could pave the way toward ending gun rights all together. A major decision out of the night circuit today.  

And new reports of former Gitmo detainees launching deadly attacks on American troops as President Obama rushes to empty the terror precinct camp before he leaves office. Stay tuned.  

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Sir, what I can tell you is unfortunately there have been Americans that have died because of Gitmo.  

UNIDENTIFIED MALE: Right. How many Americans have to die?

(END VIDEO CLIP)

(COMMERCIAL BREAK)

KELLY: New developments tonight in a story that until now has gone largely unreported and totally ignored. The Clintons now embroiled in their own for-profit university controversy.

Joining presumptive Republican nominee Donald Trump in that regard. We have the law professor who wrote the piece that shocked the story into the headlines with us tonight. Jonathan Turley is here.

But first, Trace Gallagher lays out the details. Trace?

TRACE GALLAGHER, FOX NEWS CORRESPONDENT: Megyn, during her presidential campaign, Hillary Clinton has vowed to crack down on federal aid that flows to for-profit colleges saying, quoting here, there are students who take out loans to pay for an expensive degree from a for-profit institution only to find little support once they actually enroll. And yet when Hillary Clinton arrived at the State Department in 2009, she requested that Laureate be included in her State Department higher education dinner.

Laureate is a company that runs 80 for-profit colleges in 30 countries, including five schools here in the U.S. In her e-mail requesting Laureate be included in the dinner, Hillary Clinton wrote that Laureate was, quote, "started by Doug Becker who likes Bill a lot or who Bill likes a lot."  Bill of course being the former president. Who a few months after the dinner was hired by Doug Becker to become Laureate's honorary chancellor.  And between 2010 and 2015, Bloomberg Media says, Laureate paid Bill Clinton $16.5 million.

Laureate also reportedly spent $200 million a year on aggressive marketing to enroll students mostly in Latin-American countries. "The Washington Post" wrote in 2014 about accusations that Laureate were boosting revenue by turbo charging enrollment often without the parallel increase in academic investment. And the National Accreditation Commission in Chile said, a Laureate school in Santiago had graduation rates as low as 15 percent.

We should also note the founder of Laureate Doug Becker donated between $1 million and $5 million to the Clinton Foundation. Becker also runs the International Youth Foundation, an organization that had long received grants from the State Department but during Hillary Clinton's time as secretary of state those grants increased dramatically. Laureate told us, it did not receive a penny of the grant money given to the International Youth Foundation -- Megyn.

GALLAGHER: Trace, thank you.

Joining me now, the man whose blog brought this story back into the headlines. Professor Jonathan Turley of George Washington University Law School. He's a constitutional law attorney. Great to see you, Professor.  Thanks for being back with us. So, just, I mean, it's confusing. But tell me whether I have the basics right. This guy Becker hires Bill Clinton and pays him $16 million in the course of four years.

JONATHAN TURLEY, GEORGE WASHINGTON UNIVERSITY LAW SCHOOL PROFESSOR: That's right.

KELLY: Becker, one of Becker's groups that he's associated with gets money from the State Department. Oh, that worked out well. Then Becker -- a different Becker group gives money back to the Clinton Foundation. So it's just a circle of Becker who has got a couple of different groups, one pays bill, one gets money from the State Department and round and round it goes in this sort of web like we've seen so often around the Clintons.

TURLEY: Well, you know, it's -- this company is simply enormous. It's about $4 billion of assets. And it's often pointed to as really what's wrong with the direction of education.  

KELLY: Laureate universities.  

TURLEY: Right. This is for-profit companies, education, are what McDonald's is to culinary arts. You know, they produce things at the lowest possible costs with questionable ingredients and they leave often students with debt, with not many opportunities.  

KELLY: Right. The students who are struggling, students we should not be taking advantage of. And so, it's controversial even to have the Clintons associated with that at all, especially given her stance on it. But they were. That, we know they were.  

TURLEY: Yes. And to give the former president this obscene amount of money. I mean, $16.5 million. Now what we can see is that he did give speeches in various countries. But the size of this contract which was not initially disclosed, the media tried to get this information out and both the company and the Clintons without much success. And what I believe you have here is some serious questions. Now that doesn't mean that this is the same as Trump University. I think that there are distinctions.  

KELLY: Let me stop you because this is confusing enough to talk about Laureate.

TURLEY: Yes.

KELLY: So, Laureate gives Bill Clinton $16.5 million over four years.  He's basically like their chancellor, like he's running around giving the speeches. And they're trying to open up and all of these countries. It would be very nice to have a good relationship with the State Department and she happens to be secretary of state. But the State Department doesn't get money to Laureate, this group. The State Department gives money to an organization run by the same guy who runs Laureate. This Becker guy who the Clintons love. So, it just gives you the feeling that everybody is in bed together which the Clintons deny and Laureate denies. But it smells.  

TURLEY: Well, there's no question that you did have all of this money going and coming from different directions. The one common denominator is the fact that Mr. Becker, who has involvement with both Laureate and the International Youth Foundation. And there's no question also that Laureate benefitted greatly from the association not just with Bill Clinton but with Hillary Clinton. This is a company with most of it activities abroad. And to be able to have the picture of Bill Clinton there with the connection to Hillary Clinton, the country is that rely in the United States for foreign aid, have strong relations with the State Department, that's obviously an enormous advantage.  

KELLY: And Laureate did make donations into the Clinton Foundation.

TURLEY: Yes. And the point of my blog column was that, very legitimate concerns here. I mean, for academics, for educators, this company has long be controversial. Now I'm not a big fan obviously of for-profit --

KELLY: Yes.

TURLEY: -- educational companies. But this company has been repeatedly criticized for making education into a commodity, to be sold at the lowest possible cost. It's not something you would normally expect a former president to be associated with. But to have the husband of the Secretary of State with an international company of this kind, raises some legitimate questions.  

KELLY: Uh-hm. And those questions will continue if the media does its job. Professor Jonathan Turley, thanks for calling it to our attention.  All the best to you.

TURLEY: Thank you, Megyn.

KELLY: Still ahead, a federal court issuing a major ruling just hours ago on your gun rights. Why it says the Second Amendment does not protect your right to carry a concealed weapon in public. This is a big ruling. A fair and balanced debate, next with Tucker Carlson and Nomiki Konst.

And the trial for the driver of the van in which Freddie Gray was traveling began today but only after prosecutors were berated by the judge. We'll take a look at the case and what today's developments mean for a prosecution that has already seen two of their trials end much differently than they hope. There is big news in this Freddie Gray case today. You recall we told you that the evidence came out last night that suggested the prosecution had withheld evidence and low and behold what happened, but the judge weighed in on that today.

Actually here's what we're going to do. We're going to go right -- we have time. So, we're going to go right to our gun debate with Tucker and Nomiki and get right to this Ninth Circuit Court of Appeals ruling.

Tucker Carlson is the editor-in-chief of "The Daily Caller," co-host of "Fox & Friends" weekend. Nomiki Konst is founder of the Accountability Project and host of "The Filter." Filter, I like that. Sirius XM. I don't know what she's filtering. Tucker, this is big.

TUCKER CARLSON, EDITOR-IN-CHIEF, "THE DAILY CALLER": Yes.

KELLY: This is big because the Supreme Court had held in Heller that you do have a constitutional right to keep your gun in your house, period. But now the question is, can you walk around with it? Can you walk around with a concealed weapon?

CARLSON: That's right.

KELLY: And the Ninth Circuit Court of Appeals had originally ruled yes, of course, you can. Yes. But then they come back with -- like the full panel of the Ninth Circuit that is called En Banc and the full panel on a split decision said, forget about it, no, you can't. Enjoy it inside your living room. And that's it.

CARLSON: Well it does raise a deeper question which is what is the point of a right if you're not allowed to exercise it.  

KELLY: You can enjoy it in your bathroom.  

CARLSON: That is right. You can enjoy it in some theoretical plane. Like you're allowed to have a gun. You just can't actually touch it or use it in self-defense.

KELLY: That's right.

CARLSON: But the larger question is why is the left so intent on eroding and undermining the most basic of all constitutional rights in trying (ph) in the First and Second Amendments? Why is that -- and in their place substituting these fantastical, non-existent, extra-constitutional rights, like the right to use bathrooms that you decide you need to use, but ignoring the foundational rights that made the country what it is. It's very odd.

KELLY: The defense in this case was not pleased and made exactly this point which is, the Second Amendment is not some second-class right, Nomiki, and, you know, the Ninth Circuit is reversing itself in a decision that even it could not agree on, I think it was 7-4.

NOMIKI KONST, THE ACCOUNTABILITY PROJECT: So, in that Heller decision, one thing to keep in mind was that the decision was not absolute, meaning that it wasn't contained, it wasn't limited.

Now, one thing to keep in mind if we're talking about the Second Amendment here is the limitations of the Second Amendment. The second amendment was that one part that nobody ever wants to talk about, was about the right to bear arms and organize a well-regulated militia.

Now, back then, when we had militias -- when we had militias in our state, they were made up of men that were 16 to 60 years old, and they brought their own muskets with them, that's why they were regulated.

And that's really what the Second Amendment is about. It not about -- none of Madison's writings at the Constitutional Convention did he ever discuss securing your home or concealing weaponry. That is something that is very 2016.

And going back to that Heller decision, five of those judicial, the Supreme Court justices were members of the NRA, so not only is it an activist Supreme Court ...

(CROSSTALK)

KELLY: That does not undermine their decision. I mean, that's - the people are ...

(CROSSTALK)

KELLY: ... let's not undermine it. The law is the law. And the law right now is that you do have a constitutional right to carry a firearm. The question is how far does it extend?

And this same court, the Ninth Circuit, two years ago said it extends outside your home and now, today, Tucker, they say, no, it doesn't. And they are not alone. The Second Circuit, Third Circuit, Fourth Circuit, have all found as the Ninth Circuit just found, but the Seventh Circuit out of Illinois has found the opposite, saying, of course you can carry it outside of your house, even if it's concealed. Period. And that means ...

(CROSSTALK)

KELLY: ... the Supreme Court is going to decide this.

CARLSON: Yeah. And of course it's because it's already decided what the First - what the Second Amendment rather is in the Heller decision as you just said.

But the more interesting question is why is this playing out in the courts in the first place? What would happen if you put the Second Amendment up to a popular vote? If you actually brought democracy to bear on this question, I think you would find that it has pretty broad support.

That Hillary Clinton is actually out of step with the country on this question. The left, in general, is out of step with the country on the question, which is why they want it to be in the courts.

And the broader question is why shouldn't politicians live by the laws they espouse? I can't carry a concealed weapon, fine. Neither can Hillary Clinton's bodyguards. I think if those -- if they actually had to live by the laws that they back, they would have very different views on those laws.

(CROSSTALK)

KELLY: Did you hear that, Nomiki? Because, listen, think about that. You know, we live in the city, lots of cops, brave men and women on the streets trying to protect us.

A lot of people in rural areas don't have that luxury of cops everywhere who are looking out for them and they actually feel that some of these counties that the sheriffs are not consistent with their world view and actually might leave them hanging. I mean, if you talk to people out there in the real world, they talk about it, they want to have their gun just in case.

(CROSSTALK)

KONST: Sure. I'm from Arizona. I get it.

(CROSSTALK)

KONST: I've got that uncle who's probably talking about this. Trust me.

(CROSSTALK)

KELLY: We're city slickers. This is a real issue for millions of Americans.

(CROSSTALK)

KONST: And that's what's really great about this judicial decision is that it leaves it up to the states to regulate and decide.

(CROSSTALK)

KELLY: They can't do that if the Constitution has already decided.

KONST: Well, the Constitution is talking about militias and muskets. It's not talking about concealing a handgun. I mean, in 1960s ...

(CROSSTALK)

KELLY: It's also not -- it's also not talking about having the handgun in your house and yet the Supreme Court has said it clearly does mean that.

(CROSSTALK)

KONST: Because back then, when the militias were organized, because they were organizing on behalf of communities on one end, there's always some sort of ...

(CROSSTALK)

KELLY: Maybe the militias wanted to organize that ...

(CROSSTALK)

CARLSON: I'm sorry ...

(CROSSTALK)

KONST: Bit one thing to keep in mind here, if we're going to talk about ...

(CROSSTALK) KONST: We're talking about ...

(CROSSTALK)

CARLSON: The Supreme Court has already decided this, Nomiki. I don't know where you were that day. It was in the paper. It is not their right to organize militias. It has been interpreted by our highest court. It is therefore the law.

(CROSSTALK)

KONST: To own a gun.

(CROSSTALK)

KELLY: Let me ask you this, Nomiki.

(CROSSTALK)

KONST: That's already decided.

(CROSSTALK)

KELLY: Let me ask you this. Nomiki, you know, the folks on the left want to go back to the founding days to talk about the Second Amendment. But they don't want to go back there when they went and talk about the constitutional right to abortion.

You know, if you want to go back ...

(CROSSTALK)

CARLSON: Exactly or gay marriage.

(CROSSTALK)

KELLY: ... to the way the situation was 200 plus years ago, then let's do that. Let's do that for all of the amendments. That's the (inaudible) side going to bring you.

(CROSSTALK)

KONST: But there's no amendment about abortion. There's no amendment about gay marriage.

(CROSSTALK)

KELLY: The point there is ...

(CROSSTALK)

KONST: But there's an amendment about a militia.

(CROSSTALK)

KELLY: ... the Constitution that speaks of those rights.

(CROSSTALK)

KONST: There's an amendment about militia and that was purposefully put in.

(CROSSTALK)

KELLY: And you want to interpret those with only your ...

(CROSSTALK)

KONST: No.

(CROSSTALK)

KONST: The Constitution has deliberated this. I mean, one of the things about this Heller ruling that I think is important to keep in mind was it wasn't absolute. It was something to be built on. This actually empowers the state to make the decision. So, every libertarian should be sitting here saying, thank God, the states can decide.

(CROSSTALK)

CARLSON: It has been really clear. I mean, just take three steps back, why the effort to curtail First and Second Amendment rights on the part of the left? Why? Why do you think the effort to it (ph)?

KONST: Because the NRA spends $40 million a year on this ...

(CROSSTALK)

CARLSON: That's just -- you know that that's ...

(CROSSTALK)

KONST: ... and gun manufacturers.

CARLSON: The truth as you well know is that a disarmed population is a compliant population. And a population that can't say what it thinks is a population that's much easier to control.

And that's why we always have the First and Second Amendment is that we remain a free people. And so, how striking is it that one political party, one movement, is trying to undue those protections?

(CROSSTALK)

KELLY: Let me ask you this, Nomiki, whether this plays politically at all in this election, because now, as I said, there's no question this case is going to get decided by the Supreme Court because they decided Heller.

This is a step beyond Heller and you got a split among the Circuit Court of Appeals which is tailor-made for the U.S. Supreme Court to take it. And this is an election year, and one of the things they've already been talking about is that empty Justice Scalia seat.

So this raises the stakes for republicans. The NRA has already endorsed Donald Trump. But even republicans who don't take their marching orders from the NRA are for whom gun rights aren't necessarily a voting issue, are going to stop and look at this and say, this could affect me. So you tell me whether this helps or hurts the democrats.

KONST: I think this is going to help the democrats. I mean, ultimately it will because the majority of Americans want -- every day there's a mass shooting today. This is because all gun laws have loosened. The gun manufacturers have spent over $40 million trying to influence law makers up until earlier this year. Five out of our Supreme Court justices were NRA members. That has influenced decisions like the Heller decision, Scalia, Ruth ...

(CROSSTALK)

KELLY: Ruth Bader Ginsburg ...

(CROSSTALK)

KELLY: ... was the head of the, what was it, the ACLU? I don't kind of remember what it was. Like, the most liberal group. It was the ACLU. It was a pro-choice group. We can't subject the justices to this kind of a litmus test. Of course, she's left leaning ...

(CROSSTALK)

KONST: But politically it's not good.

(CROSSTALK)

KELLY: ... you can't -- you can't scrub the ideology out of these justices before you put them on the bench.

(CROSSTALK)

CARLSON: So as a political matter, I do think this may secure Hillary's vote in Madison, Cambridge and West Hollywood. I think she's kind of got a lockdown at this point. But the truth is, the average person, even a lot of working class democrats, a lot of Bernie supporters, certainly a lot of Trump supporters, but people who are not ideological look at this and say why are they trying to prevent me from protecting myself?

(CROSSTALK)

KONST: No, it's not that.

(CROSSTALK)

KONST: You can carry it if you register it.

(CROSSTALK)

CARLSON: Of course it is and you know that.

(CROSSTALK)

KONST: That's the point, you can conceal it if you register it.

(CROSSTALK)

CARLSON: Just shut up and obey.

(CROSSTALK)

KELLY: Hold on. Don't talk over each other. Tucker and Nomiki.

(CROSSTALK)

CARLSON: Honestly, why not apply the same standards to the people in power? Why shouldn't politicians have to live by the same gun control laws that you're espousing? They don't, as you know, we pay for their bodyguards, why shouldn't they have to live by the same laws we do? What's the answer to that?

KONST: Because their bodyguards register their guns ...

(CROSSTALK)

CARLSON: Ooh.

KONST: ... and that's the important thing here.

(CROSSTALK)

CARLSON: They have power.

(CROSSTALK)

KONST: Well, no, it's important. You don't want terrorists to have guns. You don't want rapists and murderers to have guns. So, all this is saying is that if you want to conceal your gun, the state sets those regulations. It isn't about ...

(CROSSTALK)

KELLY: Yeah, but it's saying you have to go to your local sheriff or your local cop to get an approval and you can't get approval for general safety ...

(CROSSTALK)

CARLSON: Exactly.

KELLY: ... for general self-defense. It has to be ...

(CROSSTALK)

CARLSON: Unless you're rich and famous.

(CROSSTALK)

KELLY: ... specifically under -- under threat.

(CROSSTALK)

KONST: If it's concealed.

(CROSSTALK)

KELLY: Okay.

(CROSSTALK)

KONST: If it's concealed.

(CROSSTALK)

KELLY: Right. OK.

(CROSSTALK)

KELLY: ... "The Kelly File." And still we had to cut them off.

Breaking tonight, new reports of a dozen or more former Guantanamo Bay detainees launching deadly attacks on Americans in Afghanistan.

The disturbing news comes as President Obama is now ramping up efforts to honor his unfulfilled 2009 campaign pledge which has released all the Gitmo prisoners and close the terrorist prison. Trace Gallagher, live, in our West Coast newsroom with the details. Trace?

TRACE GALLAGHER, LOS ANGELES FOX NEWS: Megyn, the Pentagon finally admitted back in March that former Gitmo detainees were responsible for the deaths of Americans oversees. But the Obama administration refused to release details about the attack, saying the Intelligence is classified.

Well, some GOP lawmakers accused the administration of hiding behind the top secret classification to avoid discussing a political hot potato. Well now, the Washington Post has put it back on the front burner, reporting that at least 12 detainees released from Guantanamo Bay had launched attacks that killed roughly a half dozen Americans including a civilian female aide worker in Afghanistan in 2008.

Of the dozen former detainees, nine are now dead or in foreign custody. All were released under the George W. Bush administration and all of the attacks took place before 2009, which does not change the lawmaker's argument that violence against Americans is simply further evidence that the President's plan to close Gitmo is dangerous.

U.S. Intel says about 30 percent of former Gitmo prisoners return to the battlefield and that is in question because nobody really knows. And many believe the most dangerous detainees ever released were the Taliban Five let go as part of the President's prisoner swap for Sgt. Bowe Bergdahl.

At last check, those men were still free in Qatar. But secrecy over current and former Gitmo detainees is nothing new. Both the Obama and Bush administrations have remained very tightlipped. Most of the information we get from Gitmo, or from these Gitmo detainees, comes from leaks or from lawyers. Megyn.

KELLY: Trace, thank you.

Turning us now with on Monica Crawley who is a Fox News contributor and former foreign policy assistant to President Richard Nixon, and Larry Korb who is a senior fellow at the Center for American Progress and a former assistant defense secretary. Great to see you both.

Monica worked for Nixon when she was four...

(CROSSTALK)

MONICA CRAWLEY, FOX NEWS CONTRIBUTOR: That's true. Yes. Thank you for pointing that out.

KELLY: I know. You're a child genius and now remain an adult one.

CRAWLEY: Indeed. Indeed.

KELLY: OK, so let's talk about this because this is a disturbing number. And what we're hearing from the left, Monica, is they were let out under the Bush administration. What are you claiming about?

CRAWLEY: Well, Megyn, it's painfully obvious that despite escalating jihadi attacks and threats worldwide, nothing is going to dissuade this president from releasing some of the world's most vicious Islamic killers.

Over the past year, this president has released some Guantanamo Bay detainees to countries that don't exactly have tight controls over these kinds of prisoner, Qatar, Oman, the UAE.

In fact, one recently released Guantanamo detainee promptly returned to Yemen and is now running the Al Qaeda franchise there.

So what we know is that the President from day one of his campaign in 2007, 2008, strongly opposed to President Bush's prosecution of this war has intended to release pretty much all of the detainees with the exception of about 59 of the most incorrigible ones at Guantanamo Bay.

He's in the process of doing that even though we have these reports flying in the face of reality and flying in the face of what we know that so many of them, including the President's own director of national intelligence, estimating that the recidivism rate is between 25 and 30 percent, which my guess, Megyn is probably a low ball estimate of those who returned to ...

(CROSSTALK)

KELLY: Well, what about it?

CRAWLEY: ... to kill Americans.

(CROSSTALK)

KELLY: What about -- I guess if this happened, if these people were released under President Bush. But the point is President Obama is doubling down. I mean, more are being released and the ones who are in Gitmo now are not the ones who are like, you know, the model prisoners, like they were terrific (ph). There's a reason they're left. No one wanted them and no one wanted to release them.

LARRY KORB, CENTER FOR AMERICAN PROGRESS: Well the recidivism rate among the people that Bush released was over 20 percent. With Obama, it's less than 5 percent. It's also important to keep in mind that unlike Bush, President Obama has six agencies in the government that have to sign off before they can be released.

What you have right now, you've got, of the 80 prisoners left, 30 have been cleared to be released by these six intelligence agencies. And what's missing in this is the longer you keep it open, the more recruits you're getting for groups like ISIS.

When we capture these people and we interrogate them, they will always mention Guantanamo as a reason for them doing it, and not the mention the fact of the cost. It costs $5 million per prisoner compared to say, $70,000 in a prison in the United States.

Obama doesn't want to release the people who shouldn't be released. He wants to put them in prison in the United States where we have over 500 people ...

(CROSSTALK)

KELLY: That has been shut down as an option by the U.S. congress. He can't do that.

(CROSSTALK)

CRAWLEY: That is exactly right. If fact ...

(CROSSTALK)

KORB: Well, that they're wrong. They're wrong in doing it.

(CROSSTALK)

KELLY: Well that's ...

(CROSSTALK)

KELLY: ... right now.

(CROSSTALK)

CRAWLEY: And there is such strong bipartisan opposition to this that every national defense authorization bill since 2011 has prohibited the transfer of Guantanamo Bay terrorist to U.S. soil.

KELLY: Because Eric Holder was about to do it.

(CROSSTALK)

KELLY: And the American people, through their representatives, rose up and said ...

(CROSSTALK)

CRAWLEY: Right.

KELLY: ... no. We're happy with them in Cuba.

(CROSSTALK)

CRAWLEY: That's exactly right. But look, nothing is going to stop the president from indulging his leftist fantasy that he wants to close Guantanamo Bay. But that leftist fantasy doesn't change the nature of this threat.

And what he is in the process of doing is replenishing terrorist ranks and endangering the American people.

KELLY: What is so -- what is so wrong about keeping them there?

(CROSSTALK)

KORB: No. Bush ...

(CROSSTALK)

KELLY: I mean, Larry, let me just say ...

(CROSSTALK)

KORB: Hey, wait a second. Wait a second.

(CROSSTALK)

KELLY: ... that they are using it as a recruiting tool. They say that that argument has actually diminished and that they've seen less of that in the past years. So these are the ones ...

(CROSSTALK)

KORB: No. Wait, wait, wait a second. Wait a second.

(CROSSTALK)

KELLY: ... I mean, look at the pork that is in the budget every year. Like, the American public is not persuaded by the cost as an issue.

(CROSSTALK)

KORB: Well, wait, wait a second. Wait a second. President Bush, Senator McCain and Colin Powell all wanted to close Guantanamo. So, it wasn't only Obama.

And President Bush released over 500 people. Obama has released about 150. And they didn't check them. They are the ones responsible for this. Four percent of the people that Obama has released have gone it and they are not responsible for any of these killings you're talking about.

No evidence at all that that has happened. And as Trace pointed out, the ones that we let go to get Bergdahl out, they're still in the UAE, in Qatar. They're our allies.

(CROSSTALK)

KELLY: This was one of the reasons Chuck Hagel was so unhappy being Secretary of Defense. He felt like he was under pressure by this president and this administration to fast track this system and he felt uncomfortable about it. He's on record about that, Larry.

KORB: Well, I know that, but here's what happened is because there are many people in the Pentagon who don't want to release anyone. They don't want to take a chance.

The White House is saying when you get those six, you know, groups, clearing it, you've got to do it because the bureaucracy always is a CYA type of thing to prevent themselves from getting into trouble, because if you release them, and if the worst of worst should happen. That's why they're doing it.

But if you take a look ...

(CROSSTALK)

CRAWLEY: But the worst of the worst is already happening.

(CROSSTALK)

CRAWLEY: ... We just had this report that six Americans are now dead because we released a number of detainees who should not have been released.

(CROSSTALK)

KELLY: I have the same question for you guys as I had from the last panel, which is sort of the page two of the story, which is, does this play in the 2016 political race? Because this is a promise that President Obama made.

He seems determined to get these guys released before he leaves office. But if he doesn't, if he doesn't, Monica, this is going to carry over and you tell me whether the sort of independent-minded voters out there are the people who are not affiliated with either party are going to be behind Hillary or Trump on this issue?

CRAWLEY: Well I think the vast majority of the American people, Megyn, including those persuadable voters that you just referred to, understand the nature of the threat and they understand that you can't fight the war with one or two hands tied behind your back.

And again, you know, Guantanamo Bay is a terrorist recruitment tool. No. The United States itself is a jihadi recruitment tool.

Most of the American people understand this, and I think that's why they are really taking to Donald Trump's message of his rebuilding the military strong national defense and fighting the existential threat of Islamic fundamentalism, and that requires the continued operation of Guantanamo Bay.

KELLY: Go ahead, Larry, same question.

KORB: Build a wall? I mean, come on. When you tell the American people the facts that six people who Obama left have gone back to fighting, only six. When they hear that, then they don't hear all of this other thing about hundreds -- six people that he's released.

(CROSSTALK)

KELLY: You understand that the reason -- the way that this has been framed is that, you know, people are -- that people view President Obama as weak on national defense, right? This is how the republicans frame it.

The republicans are tough and President Obama has been weak and his behavior and decisions and hers, to some extent, led to the rise of ISIS. And that's just like him, this is what they're going to argue.

She won't keep us safe. Just like him, she'll release terrorists who we've already caught. Just like him, she won't stop the rise of a terrorist group like ISIS. You know that's where it's going. So, you tell me how the democrats are ready to combat that, Larry?

KORB: Well, don't forget. There's only 30 people Obama wants to release. He wants to put the remaining ...

(CROSSTALK)

KELLY: But they're bad guys.

KORB: No they're not. They've already been cleared by six agencies. Six agencies have cleared them. Six national securities, not Obama appointee.

(CROSSTALK)

CRAWLEY: These remaining detainees are the worst of the worst. That's why they're still there. And ...

(CROSSTALK)

KORB: So those people they want to put ...

(CROSSTALK)

KORB: No, no, no.

(CROSSTALK)

CRAWLEY: ... they want to either release them to terrorist sponsoring countries who put them in luxurious accommodations like Qatar or he wants to return them to the United States to stand trial in our criminal justice system. That is outrageous.

(CROSSTALK)

KORB: Qatar is our ally. We have bases there. So don't say that ...

(CROSSTALK)

CRAWLEY: They have the five Taliban commanders in "luxurious accommodations" and let them free to roam around Qatar until they release them. And not they're back on the battlefield, Larry. How is that ...

(CROSSTALK)

KORB: No, they are not on the battlefield. They are still in gutter. They are still gutter. They're not on the battlefield.

(CROSSTALK)

CRAWLEY: You don't think they're coordinating attacks and reconnecting ...

(CROSSTALK)

KELLY: Well there are already reports about that. There were already reports about that. That surfaced not long after they were released. OK, thank you very much. Great to see you.

CRAWLEY: You bet. Thanks Megyn.

KELLY: This is a special edition of "The Kelly File." and if you're noticing, that's a special, special, special.

So major developments today in the Freddie Gray case. Officer Caesar Goodson was the driver of the van in which Freddie Gray was riding after his arrest.

And prosecutors opened up his trial today by accusing him of intentionally hurting Freddie Gray by giving him a "rough ride." They're saying this cop was out to murder Freddie Gray, that he went to work that day and decided today is a good day to crossover to the other side from being a cop to being a criminal.

But after learning last night that the prosecution failed to disclose an interview they conducted with Donta Allen, the only other person in the back of that van with Freddie Gray, the judge spent the first part of the day berating the state, this is Marilyn Mosby's office, telling them they better disclose anything else they have by Monday or they will face sanctions.

Arthur Aidala is a "FOX News" legal analyst and the New York trial attorney, Mark Eiglarsh is a criminal defense attorney and former prosecutor.

Welcome back. So let's just -- you start, Arthur, by telling us what were the highlights of what happened today?

When we left off last night, the prosecution was in trouble because the judge found out they hadn't disclosed all the interviews they'd done.

We, in the press, knew that they had spoken with Donta Allen but there were a few meetings they had with Donta Allen and they didn't disclose all of them.

ARTHUR AIDALA, FOX NEWS LEGAL ANALYST: Correct. So they disclosed the first one that they had and where they said, we turned over the substantive information. And then either earlier this week or late last week, Donta Allen's lawyer called Goodson's lawyer and said, by the way, did they tell you about the second meeting?

And the defense attorney said, no. So the defense attorneys brought up what about the second meeting? They said, oh, yeah, we did have a second meeting, but he was so consistently inconsistent in his answers that we did not think there was any exculpatory material there. And that is the burden of the prosecutor.

They have to turn over exculpatory material. Not necessarily to turn over everything, just something that would help the defense, and in these situations you err on the side of caution, you turn it over.

So the judge says, we are coming in tomorrow morning, meaning this morning, and I want to hear from the prosecutor and tell me what happened. How come this hasn't been turned over?

And they half-danced around and only because this is a bench trial and not a jury trial did the judge allow them to start testimony. If this was a jury trial, and there was a possibility that there was outstanding material out there, the judge would say, uh-uh. I'm giving you until Monday. and if there's anything else that's left out there that comes in after Monday, the sanction will lead to dismissal of the case.

But because he's the only finder of the facts, he said, OK, I'll start the trial so we don't waste any time, but by Monday if there's anything else that's exculpatory, I better have it.

KELLY: What did we see today, Mark? What did we see that would support a finding that Officer Goodson committed murder?

MARK EIGLARSH, CRIMINAL DEFENSE ATTORNEY: We're not going to see it. But I have got to say something about this judge. I love this judge.

KELLY: I like this judge a lot, too.

EIGLARSH: He did something -- let me tell you something, Megyn. He's courageous to find the guy not guilty when the public pressure was so extraordinary and now he has this trial.

What he did to the prosecution, Megyn, is something that I swore I would never do to my own children, he spanked them hard and they deserved it, Megyn.

They -- let me tell you something. If they ever fail to disclose anything to future defendants, this judge is going to issue sanctions, and he should.

Now back to the questions you asked about the evidence. Everyone needs to understand that even in the worst case scenario, this judge finding, well you should have done this and you were negligent in this way, that's not what he's charged with

Being negligent is not sufficient. They must prove a callus indifference to human life, and guess what? The prosecution said Porter is going to testify. He's going to be a star witness for the defense in this case, Megyn.

AIDALA: So just an ...

(CROSSTALK)

KELLY: Go ahead, Arthur.

AIDALA: You know, when you said earlier about him waking up -- Goodson, and wanting to kill someone, it's not that he's charged with wanting to kill this guy. He's charged with -- in New York, it's called depraved indifference to human life.

So the example in law school is, you go into Times Square at midnight with a machine gun and there's not one individual who you want to kill, but you just start firing bullets everywhere with no intent to kill one particular person, but your action is so depraved that you knew or should have known it was going to cause his death ...

(CROSSTALK)

EIGLARSH: L3et's talk about that.

AIDALA: And here, going too fast in a car, maybe he should have known it could hurt someone, but it's going to snap their neck and kill them?

KELLY: Go ahead, Mark.

MARK: Yeah, they're trying to suggest that they singled out Freddie Gray. That the driver wanted to harm him. So Porter, as I mentioned earlier, will be a star witness ...

(CROSSTALK)

KELLY: Another one of the defendants. There are six cops charged.

(CROSSTALK)

EIGLARSH: Correct. Guess what Porter's going to say? The same thing he testified to previously. That in 150 transports of prisoners since 2010 that he's been involved with, guess how many he's ever buckled in? Zero. And when they trained Porter, he never saw anyone buckled in.

(CROSSTALK)

KELLY: I know. Speak to that, Mark. They changed the rules three days before Freddie Gray's arrest. Three days ...

(CROSSTALK)

EIGLARSH: Correct.

KELLY: ... and there was no evidence in the earlier trial that it had ever even been communicated to the cop.

EIGLARSH: And so the public needs to know that maybe legally, OK, you didn't do what the policy said and so that's why they might have paid the millions of dollars in civil money, it's a different burden, it's a different standard, it's a different action that they're looking for to find someone guilty and throw them in the pokey for decades.

(CROSSTALK)

KELLY: Arthur, did you hear anything today that suggests second-degree murder?

AIDALA: No. This is what I heard. Your producers today were excellent in following this and educating me -- correct -- and every day -- and educating me. And I kept saying, like where is the beef? If anyone is old enough to remember that commercial.

This is the first day. Anyone who, in the first year of law school, you lead with your strength. You lead with your strongest argument. You only get one chance to make a first impression.

Where was this strength? And my understanding is there's a surveillance video that shows the truck driven by Goodson, the defendant, making a turn so quickly that he had to cross over the two double lines. He went through a stop sign or a red light and had to go through the two double lines, that's how fast he was going.

If that's it, that's not enough. Now hold on, just give me one second. If there's a nun two blocks away and she saw him stop short and go fast and then there's a rabbi three blocks away and he sees him swerving, now you're in a different position. Now you have credible witnesses, a surveillance video. Now, it's a different ball game. But we're not in that ball game right now.

KELLY: Go ahead, Mark.

EIGLARSH: I'm so glad my bald beautiful brother brought up the videotape. That's apparently the biggest evidence that they have and what does the video show, not that he made numerous stops as Arthur suggested is required, but that he failed to come to a complete stop at a stop sign and then swerved, which would describe how Arthur drives every day.

AIDALA: It's New York City.

(CROSSTALK)

KELLY: It's New York.

(CROSSTALK)

KELLY: You get killed if you don't drive like that.

(CROSSTALK)

AIDALA: But the bottom line is, they're stuck with -- this prosecution team is stuck with this pile of dog poop that they indicted in a rush to judgment, in a rush to calm down the riots, in a rush to -- you wanted justice I gave you justice, now you give us peace. Everything the three of us are talking about a year ago, and now they're stuck with it and this trial attorney has got to live with it and he's go to ...

KELLY: A mistrial of one of the cops.

(CROSSTALK)

AIDALA: An acquittal.

KELLY: And an acquittal of another cop and now we're on to the third cop and so far, so bad for the prosecution.

I wan to shift gears because one of the interesting things about the Freddie Gray case as we watch it play out in Caesar Goodson, is that there's a lot of pressure being put on this judge in Baltimore. A lot of pressure being put on him. And so far he's been very strong.

But not as much pressure as is being put on this other judge in this rape case that has made national headlines. Mark, tell us.

EIGLARSH: Well, the defendant was convicted. This wasn't a plea. There's a big difference when a jury finds someone guilty. He raped someone who could not consent.

(CROSSTALK)

KELLY: Star student, student athlete, on the swim team at Stanford University. Not just setting it up. Just setting it up. Go to a party, meets a woman. Go ahead, take it from there.

EIGLARSH: Right. And two passersby saw what he was doing.

(CROSSTALK)

KELLY: She was completely passed out. She was unconscious and not aware at all of what he was doing to her.

EIGLARSH: And had to sit through a trial where it was argued that she consented, and you got to defer to the defendant, his attorney said because she was passed out so she can't say what really happened.

So he was convicted and the judge could have given him up to 14 years in prison, prosecution, I think requested six years, he gave six, but six months. He'll do maybe three months out of that.

And I'm telling you, as a former prosecutor, as a criminal defense attorney, this is a miscarriage of justice. This is not a case where he's treated like other defendants. He was treated differently and I think this was a horrible ruling and it sets a horrible precedent for future victims many of whom are afraid to come forward.

(CROSSTALK)

KELLY: That's right. Because the message to rape victims, Arthur, is it's not -- was it really that bad? He's going away for what -- you could commit a misdemeanor and get a sentence like this.

EIGLARSH: Sure.

AIDALA: Yes, you can. So ...

(CROSSTALK)

EIGLARSH: This is a dui sentence.

AIDALA: What I try to be, Megyn, as, and I've been dealing with you for a long time as I try to be the FOX News legal analyst and not the FOX News second guesser, and I did not watch the entire trial. The judge did.

I did not hear the statements from the victim, the judge did. I did not hear the statements from the defendant and the defendant's father. The judge did. The judge took into consideration this guy's no longer going into the Olympics as he was and lives the rest of his life like a felon like he was ...

(CROSSTALK)

KELLY: She lives the rest of her life as a rape victim.

AIDALA: But the reason why we have judges as human beings and not computers is because we want them to do their job.

(CROSSTALK)

KELLY: And because they're human beings sometimes they make mistakes.

AIDALA: And when they sentence someone to 100 years when it should be sentence d to a year they make mistakes as well.

(CROSSTALK)

KELLY: Go ahead, Mark.

(CROSSTALK)

EIGLARSH: And Arthur, human beings could show at the polls next time and vote his butt off the bench.

AIDALA: Correct. But I bet you they won't.

KELLY: Well is there anything else - listen, I hate to come down too hard on the judge because you're right, you never know. When you're not the trier of fact and you don't sit in there, but I'm looking for the evidence that makes this somehow understandable. I don't see it.

EIGLARSH: Megyn, Megyn, I'll tell you, I've represented a lot of guys just like him and I think that the judge probably -- and I'm not defending it. But the judge probably sees someone who, if he goes to prison, will be destroyed.

AIDALA: Exactly. He also said I don't believe this kid will ever hurt anyone again and that was one of the reasons he gave.

KELLY: The victim statement is heart wrenching, and it's worth your time if you really don't mind.

Great to see you both.

(CROSSTALK)

AIDALA: It's a great special tonight. Great special.

KELLY: Thank you, thank you very much. Good to see you. It's been a commercial-free "Kelly File" and there's a really interesting fact story behind that but the show is finally over, so I got to go. Bye.

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