This is a rush transcript from "The Kelly File," June 27, 2016. This copy may not be in its final form and may be updated.
MARTHA MACCALLUM, GUEST HOST: Breaking tonight, fresh controversy for the Clinton campaign after reports raised new questions tonight about who may have been influencing Clinton during her time at the State Department. And it appears that her team did not want the public to know about it.
Welcome, everybody, to "The Kelly File" tonight. I'm Martha MacCallum in for Megyn Kelly. So, last week as the world's attention was on the Britain vote to leave the EU, the Associated Press released a bombshell report revealing that Mrs. Clinton had, in fact, had dozens of meetings that were either left off of her official calendar, or whose attendees were deleted. This news was only discovered through the pursuit of a lawsuit.
By comparing her official calendar to her aides' planning schedules, among those that she was meeting with, Clinton foundation donors, corporate contributors, campaign operatives, the campaign maintains, though, that nothing is awry here. Quote, "If the different schedules refer to simply reflect a more detailed version in one version compared to another."
Meanwhile, the State Department has little to say on this matter. Watch.
(BEGIN VIDEO CLIP)
JOHN KIRBY, STATE DEPARTMENT SPOKESPERSON: The State Department maintained and preserved extensive records of Secretary Clinton's calendars, and that's evident from the records provided by the Department to the Associated Press in this case. It's a matter of ongoing litigation, and as such, I'm not going to offer additional details.
(END VIDEO CLIP)
MACCALLUM: So there's that. Let's bring in Fox News senior judicial analyst, Judge Andrew Napolitano. Good to see you.
JUDGE ANDREW NAPOLITANO, FOX NEWS SENIOR JUDICIAL ANALYST: There's not much the State Department can say about this one. I almost don't blame them for being so quiet. She is a public official, was a public official subject to the public records act, which requires that all of her, quote, "official acts be recorded." Official acts are one in which she engages the government to address a problem, or the government engages her. If she met with anybody in that category in those meetings with the names dropped, then she violated the official records act by deleting the names. Now, let's say she met with her hairdresser and she didn't want that name in there. Her obligation is to put it in and then go through a procedure to get it removed. Just like she did with the e-mails --
MACCALLUM: That's kind of silly, isn't it? I mean, if it's a personal dinner or a friend meeting, why should she need to disclose that?
NAPOLITANO: Because that's what the statute says. The statute puts the burden on the covered person, which is her as secretary of state, to make the case for why something should not be there. She enforced that statute against people who worked for her in the State Department, but she didn't enforce it against herself. In her own case, she unilaterally decided what would be removed from the records. So now we don't know -- investigators don't know if she was engaged in, quote, "official acts or not."
MACCALLUM: So here's what her side says. That there were 75 meetings and 114 people who were deleted. They say that she had her official calendar and then her staff would give her, you know, sort of the short-run version of what she was doing that day. And one had the list of the people that were going to be there, and the other one didn't. And one example is when she rang the bell at the New York Stock Exchange. They said, she ran the bell at the New York Stock Exchange. They didn't talk about who was at the breakfast prior to that.
MACCALLUM: And it included, you know, corporations, CEOs, that kind of thing.
NAPOLITANO: Who would trust her after all we know about her to decide with intellectual honesty that her behavior was not covered by the official acts law? Nobody would trust her. The statute doesn't trust her. The federal government says you record everything, and then if you want it kept from the Freedom of Information Act or kept from the historical records, you make the case, and others decide.
MACCALLUM: She obviously knows that trust is a problem for her. Here's what she had to say about it in an appearance that she made today. Watch.
(BEGIN VIDEO CLIP)
HILLARY CLINTON, D-PRESUMPTIVE PRESIDENTIAL CANDIDATE: Trust is the glue that holds our democracy together. But it's no secret that Americans' trust in government as eroded. I personally know I have work to do on this front. A lot of people tell pollsters they don't trust me. Now, I don't like hearing that.
(END VIDEO CLIP)
NAPOLITANO: She has a federal judge, Judge Emmett Sullivan, who was appointed by her husband, who doesn't trust her to tell him the truth. She certified under penalty of perjury that she delivered all of her e-mails to the State Department. This afternoon, 165 e-mails between her and her aides in the State Department were released that she never delivered to this judge.
MACCALLUM: Yes. And in one of them, she talks very specifically about, I'm not really sure how my information is being saved between the State Department and here, and we need to make sure that we know how that's working.
NAPOLITANO: And in another one, Huma Abedin talks about you've been hacked. We've got to shut down the Clinton server for a while. That defies her statements that she never was hacked.
MACCALLUM: The VIP had to sue to get the information on her personal calendar and compare it to those records, and there is a reason why they wanted that information, and it lays out here. Thank you very much, Judge.
NAPOLITANO: You're welcome.
MACCALLUM: Good to see you.
NAPOLITANO: Good to see you, Martha.
MACCALLUM: So, for her part, Hillary Clinton spent the day with the woman that may end up being her vice presidential candidate, a woman who Donald Trump is tonight accusing of being a fraud and a racist. Those are his words. Today for the first time, liberal Massachusetts Senator Elizabeth Warren joining Hillary Clinton on the campaign stage. Look at this picture here today, folks. With the Senator wasting no time going squarely after Donald Trump.
(BEGIN VIDEO CLIP)
SEN. ELIZABETH WARREN, D-MASS.: When Donald Trump says he'll make America great, he means make it even greater for rich guys just like Donald Trump.
And watch out because he will crush you into the dirt to get whatever he wants. That's who he is.
(END VIDEO CLIP)
MACCALLUM: Wow. A short time later, Mr. Trump responded calling out Senator Warren over her unproven claims that she's part Native American, Cherokee to be exact. Here's what he told the reporter. Quote, she said that she's five percent Native American. She was unable to prove it. Elizabeth Warren is a total fraud, he says. She made up her heritage, which I think is racist, says Donald Trump.
Joining me in moments, Governor Mike Huckabee, who is a former presidential candidate of course and a FOX News contributor. And Mark Hannah, a former campaign aide to President Obama.
But first, let's go to Trace Gallagher, who has the back story on this whole thing. Hi, Trace.
TRACE GALLAGHER, FOX NEWS CORRESPONDENT: Hi, Martha. After years of identifying as white, in 1984, Elizabeth Warren contributed recipes to a Native American cookbook called powwow chow, claiming she was Cherokee. Then from 1985 to 1995, Warren identified as a Native American in the Association of American Law School's desk book. That's a directory of law professors.
If fact, when Warren was a Harvard Law professor, the university was criticized for not having enough diversity on the faculty. So, the school defended itself by touting Warren's lineage. The Senator strongly rejects any accusation that she benefited by identifying a minority, but she has also struggled to explain why she did it in the first place saying, things like it's always been part of her family story. And remember this? Watch.
(BEGIN VIDEO CLIP)
WARREN: I still have a picture on my mantle at home, and it's a picture my mother had before that, a picture of my grandfather. And my Aunt Bea has walked by that picture at least a thousand times, remarked that he -- that her father, my Pawpaw, had high cheekbones like all of the Indians do.
(END VIDEO CLIP)
GALLAGHER: She went on to say that we grow up on what our families tell us. Experts point out that it would be nearly impossible to prove that she doesn't have some Native American blood in her family and some have said at most, she could be 132nd Cherokee. But after some fairly exhaustive research, the New England historical genealogical society says it has found no proof of her self-proclaimed Native American lineage, and that her family is not listed in 20th Century census of major tribes. We should note that Warren stopped identifying as a Native American in the directory of law professors in 1995, right after she accepted a tenured position at Harvard -- Martha.
MACCALLUM: That's interesting. Thank you, Trace.
Mark Hannah joins us now, former campaign aide for President Obama's presidential campaign and the author of the new book "The Best Worst President: What The Right Gets wrong about Barack Obama." That is just out. Mark, good to see you this evening. Thanks for being here.
MARK HANNAH, AUTHOR, "THE BEST WORST PRESIDENT": Thank you for having me.
MACCALLUM: It's a little weird. I mean when you go back and listen to the whole back story, we've all heard the back and forth between, you know, the Pocahontas from the Trump side and her claims that she is part Cherokee. But it's weird that she identified not that way for such a long time, and then she identified as Cherokee. And then after a while, she dropped it.
HANNAH: Well, I think there's been an enormous amount of media scrutiny when she ran for Senate in 2012, you had right wing radio hosts in my home state of Massachusetts sort of lambasting her on this. Obviously the voters of Massachusetts didn't care because they elected her to Senate. And I don't think if this is -- the card Donald Trump wants to play is going after Elizabeth Warren, who basically doesn't have any real relevance to this campaign for this. I don't think it's a winning strategy.
I think Donald Trump got knocked off his game a little bit. He's supposed to be making substantive attacks on Hillary Clinton. But by calling her racist for even acknowledging that she might have some Cherokee heritage is like calling somebody sexist, a man sexist because he has -- it's the same logic as calling a man sexist because he acknowledges he has a mother, because he has a grandmother.
MACCALLUM: I mean, I think -- and I'm far from speaking for him. But I think if I understand correctly what he's saying, he's saying if she's not Cherokee, then to go through all this and talk about the high cheekbones in the family and all of that is, you know, is disingenuous.
HANNAH: People can defend Donald Trump's comment that Elizabeth Warren is somehow racist, but this is coming from a man, remember, who the Republican speaker of the house just days ago referred to and basically scolded for his racist comments. So it looks like Donald Trump is bringing all the maturity and strategic sophistication of and, I know you are, so what am I kind of approach to political campaigning. It's just -- it doesn't -- it reached --
MACCALLUM: I mean she's calling him a thin-skinned money grubber. I mean she goes after him the same exact way.
HANNAH: Sure. Sure. But they make substantive attacks at the same time. But Donald Trump seems unequipped to make substantive attacks. Margaret Thatcher, the conservative prime minister of Great Britain once said, you know, I cheer up immensely when people make personal attacks at me because it shows me that they have no political argument left. Donald Trump is a master of political attacks. He's called this president the worst president ever. But it shows that he basically is vacuous, is empty handed when it comes to actual substantive criticism. And if he wants to win 51 percent of the voters in 2016, he needs to come up with substantive criticism.
MACCALLUM: Mark, I got a half a minute left. Give me the headline of your book, and it comes out tomorrow, right?
HANNAH: Sure. Yes. A lot of your viewers see me on this, you know, kind of liberal spouting in defense of the Obama administration. If you're wondering how anybody in their right mind could still think this president is a fantastic president, buy this book. It basically, you know, for any open-minded conservative watching, for Liberals that might have a conservative uncle or neighbor they want to, you know, have a ready response for when they're talking about Benghazi or the Syria debacle, but you don't, you know, you follow the news but you don't have all the information, this is a fun, light-hearted take, a good way to bring family together and -- on the 4th of July weekend, right? Over the cookout.
MACCALLUM: The best worst president. Mark, good to see you. Thank you very much for being here tonight.
HANNAH: Thank you, Martha. Thanks for having me.
MACCALLUM: Best of luck with your new book.
HANNAH: I appreciate it.
MACCALLUM: So, here now to respond, Governor Mike Huckabee. He's a former presidential candidate of course. And he is a FOX News contributor. Governor, good to see you again today. Welcome.
MIKE HUCKABEE, FOX NEWS CONTRIBUTOR: Good to see you, Martha.
MACCALLUM: So you heard all the back and forth there.
HUCKABEE: You know, I'm wondering if Mark's book, is it in the fiction category? I'm just wondering because from what he said, I think I'll look for it under fiction.
MACCALLUM: Well, I guess your response is duly noted, but he hopes that many people don't agree with you. But tell me something here. When you hear this back and forth, she calls him a thin-skinned money grubber, and he calls her Pocahontas, and it does raise a valid question, which is does any of this name-calling beget anything that is worthwhile to voters on either side?
HUCKABEE: I think everybody understands that if you're going to call Donald Trump something, he's going to come back at you. And I think Elizabeth Warren has opened herself wide open for this. Look, she called Donald Trump a racist, called him a money grubber, all sorts of things, very personal attacks. And then for her to pretend that she's so righteous, so holy, she would never do something like that. I just think it's absurd.
But, look, the scene today was just classic. You had Hillary Clinton and Elizabeth Warren. Elizabeth Warren, who is always talking about how horrible it is for these Wall Street people, and she's standing there with the poster child of Wall Street political funding, Hillary Clinton. The one thing they do share is a very left-wing philosophy. I've said that this was the beginning of left and lefter. Hillary and Elizabeth Warren on the same stage, pure left.
MACCALLUM: So, I mean, how did these two come together? I mean, you know, certainly what you say about the background between them and the things that she's called Hillary Clinton, it's absolutely true. So what do you see here in the making politically? Is this the V.P. candidate? Is this what we've got in terms of a pairing in November?
HUCKABEE: Well, it would be a fascinating ticket because I'd love to see how Elizabeth Warren goes out there and defends Hillary Clinton's being a wholly owned subsidiary of Wall Street. I'd love to see how she's going to talk about Hillary Clinton getting all this cash from foreign governments who jail people who are gay and who put them to death, and somehow that Hillary is the champion for diversity and women's rights. I mean this is absurd. But it's part of this narrative that Democrats can just ignore the realities and speak about how pure they are, how devoted they are. A lot of Americans have been hurt by their policies.
MACCALLUM: But if you have a candidate who has trouble with women voters, which Donald Trump does when you look at the polls, and you've got two women, one who is going to bring in the Bernie Sanders vote, and the other who is going to bring in the stability and continuation of the Obama White House, that could be a pretty formidable team.
HUCKABEE: I don't know. I mean I'm not sure how stable the Obama administration is. You've got ObamaCare that's made it very difficult for a lot of families to afford health insurance. Double the national debt to nearly $20 trillion. Our place in the world has been decimated. Nobody respects us anywhere in the world anymore. You know, you got Putin flying fighter jets over navy destroyers and taking hostages by the Iranians. I'm not sure Hillary wants to latch onto that and say, give me four years, and I'll just keep that great stuff going because I think people looking objectively can't hardly embrace that as terrific.
MACCALLUM: See her separating when she feels it's worthwhile from the administration and embracing them when they thinks it serves her well. Governor Huckabee, thank you very much. We'll see you soon, sir.
HUCKABEE: Thanks, Martha.
MACCALLUM: So when the Supreme Court today ruled against new safety standards for abortion clinics, some on the left were elated. In fact, one late-night show talk show host suggested going out and celebrating by, quote, "knocking someone up in Texas." Seriously. Trevor Noah said that.
Ben Shapiro, and Eboni Williams up next on that.
Plus, bombshell new revelations have some lawyers asking if the Baltimore D.A. intentionally misled the grand jury that charged six police officers in Freddie Gray's death. This is a "Kelly File" exclusive that you must hear in this case. Straight ahead when we come back.
(BEGIN VIDEO CLIP)
MARILYN MOSBY, BALTIMORE CITY STATE'S ATTORNEY: To the youth of this city, I will seek justice on your behalf. This is a moment. This is your moment.
(END VIDEO CLIP)
MACCALLUM: Developing tonight, new fallout after the Supreme Court issued one of the court's most sweeping decisions on abortion rights in more than a decade. Today, the court determined that Texas had gone too far with new rules that state described as safety standards for abortion clinics.
Shannon Bream reports live tonight from Washington.
SHANNON BREAM, FOX NEWS CORRESPONDENT: Justice Kennedy was once again the key vote in a critical case. This time siding with the liberal wing of the court to strike down portions of a Texas law the authors say was meant to safeguard the health of women seeking abortions. Critics said that was just a sham and that the real motivation was to shut down the majority of clinics in Texas. They argued that women in that state would be left with few options, likely being forced to drive hundreds of miles to get to a doctor or clinic who could comply with the standards.
In striking down the regulations, Justice Breyer expressed real doubt that they would actually benefit women's health. With Justice Ginsberg writing in a concurring opinion that it is, quote, "beyond rational belief that the law would genuinely protect women undergoing an abortion." The dissenters, Justices Thomas and Alito said the court bent over backwards to get to that end result. Thomas writing that the court actually reworked the rules, benefiting, quote, "judicially created rights like abortion while disfavoring many of the rights actually outlined in the constitution." Both sides say the battle is not over.
(BEGIN VIDEO CLIP)
UNIDENTIFIED FEMALE: Today is just day one. We've got an election where these issues are on referendum. We've got an election where the future of women's rights, which are human rights, are at stake.
UNIDENTIFIED FEMALE: This generation is pro-life. The tide has turned in our country. Our culture is changing. We just have to transform Washington now.
(END VIDEO CLIP)
BREAM: Both sides also used today's ruling as a prime example of why the Supreme Court should be on the mind of every voter heading to the polls this fall -- Martha.
MACCALLUM: All right. Thanks to Shannon Bream.
So, almost as soon as this ruling came down, we started to hear cheers of sorts from the left. Trevor Noah, of the daily show, went on Twitter to encourage people to, quote, "Celebrate the Scotus ruling. Go knock someone up in Texas." I kid you not. And then there was the former Texas State Senator Wendy Davis, who got national attention for crusading against this law. Here she is.
(BEGIN VIDEO CLIP)
WENDY DAVIS, FORMER TEXAS STATE SENATOR: Well, I'm overjoyed. I have to tell you I was fighting back tears a moment ago as I was reading the Scotus blog, and the first line that came out saying that the Fifth Circuit opinion or decision had been reversed. It's incredible news for the women of Texas. It's incredible news for the women throughout this country.
(END VIDEO CLIP)
MACCALLUM: Interesting. So joining me now, Ben Shapiro is an attorney and editor-in-chief at DailyWire.com. And Eboni Williams is an attorney and a Fox News contributor. Welcome to both of you.
EBONI WILLIAMS, FOX NEWS CONTRIBUTOR: Thank you, Martha.
MACCALLUM: I want to get your thoughts on the ruling. But your thoughts first culturally on the reaction that this got from some on the left. Ben, what do you think?
BEN SHAPIRO, EDITOR-IN-CHIEF, DAILYWIRE.COM: Well, I mean I think number one, Trevor Noah is slightly below bubonic plague on the funny scale. So, it's not really a shock that he'd come out with a tweet like that. But this shouldn't be a surprise. I think Trevor Noah kind of let loose what a lot of Democrats actually think, which is that there's no reason abortion should be safe, legal and rare. The internal logic of that statement, the old Clinton formulation doesn't hold. If abortion is about aborting something that isn't fully human, then why should it be rare?
And if it is about aborting something that is human, then why exactly should it be legal? So, the full scale celebration you see, the idea that abortion is actually birth control, that's what most Democrats including the Democratic Party platform, which it was revealed today calls for a destruction of literally all state and federal laws that restrict, quote, "access to an abortion as well as public funding for abortion both at home and abroad." They don't believe abortion should be safe, legal, and rare. They think that it's just a form of birth control.
MACCALLUM: Eboni, what do you think?
WILLIAMS: Well, look, I thought the tweet from Trevor Noah was ignorant, sad, and very distracting from what I thought was a very classical constitutional analysis delivered by the court today. And I thought that was sad. I've got to respectfully disagree with Ben on the fact that most Democrats see abortions as a primary method of birth control or method at all of birth control. I'm just simply not aware of the data that shows that. I know for, you know, people that I know personally that are pro- choice, they are just that. They're pro the women's right to choose. Actually not pro-abortion even and certainly not advocating that be some method of birth control. That's why we have other actual birth control options.
MACCALLUM: Yes. I mean, there were other pro-choice individuals who said that they were horrified by some of these expressions like the one that Trevor Noah put out. You're shaking your head, Ben? You don't believe that?
WILLIAMS: Yes. Why? It was disgusting.
I thought it was a disgusting claim because it was a celebration and it kind of, to me, underscored the point you made, Ben. And I think it's a sad and disgusting point that anyone in this country would view abortion as a method of birth control.
SHAPIRO: But why would you object to that? If you don't think that the child is fully human, then why would you care?
WILLIAMS: Nobody said that. I think that you're connecting dots that I've certainly not stated. So to be pro-choice -- actually you know what, Senator Marco Rubio, I thought really brilliantly laid out this analysis in one of the debates where he talked about this issue of whether or not the child is unborn and does the child have rights and also does the mother have rights, and where do those rights intersect or overlap? And I'm someone that believes that certainly the child -- unborn child has rights. I believe that the mother has rights. I simply happen to a person in some belief that those mothers' rights deem to usurp those rights.
SHAPIRO: In what world would any of my rights allow me to kill another human being?
WILLIAMS: Well, Ben, again you're not a woman. And as a woman, I'm someone that is simply saying --
SHAPIRO: So what?
WILLIAMS: -- it is my position that a woman has a right to dictate the choices to ground her whole body, that is not to ignore or takeaway the rights of any unborn child.
SHAPIRO: And I'm not a slave holder. That doesn't mean --
WILLIAMS: Thank goodness you're not a slave holder, Ben. That's good news. I'm really glad --
SHAPIRO: No, the point that I'm making, and if you'd let me finish the sentence, the point I'm making is that the greatest moral problem in society historically is the idea that you get to arbitrarily define what is human and what is not based on your own convenience.
WILLIAMS: Again, this is not a discussion about humanness, but thank you.
MACCALLUM: Eboni, thank you very much.
WILLIAMS: Thank you so much, Martha. Ben Shapiro, thanks to you as well. A very big decision and controversial indeed coming out of Texas today. And more to come on that.
MACCALLUM: So there are serious new questions tonight about the conduct of the Baltimore D.A. as the lead investigator in Freddie Gray's death says that she was forced to mislead the grand jury that indicted those six officers. We know how this has gone so far. Should the other three be relieved of the rest of this process given what has happened?
Plus, Donald Trump attacking a new national poll as dirty and underhanded, and he's not the only one who is raising questions about that survey.
Chris Stirewalt and Larry Sabato coming up next on that. Stand by. We'll be right back.
MACCALLUM: We are back and breaking tonight, two national polls touching off a hot new debate. One survey is from "The Wall Street Journal" the other one came from ABC and they show presumptive Democratic nominee Hillary Clinton comfortably ahead of Donald Trump. They have also touched off questions, though, about who is in these polls and how accurate the responses are.
Joining us on that is Chris Stirewalt, Fox News digital politics editor and Larry Sabato, director of the University of Virginia's Center for Politics. Gentlemen, welcome. Good to see you both this evening. Larry, let me start with you. You say it's June. Wake up, it's just June, right?
LARRY SABATO, UNIVERSITY OF VIRGINIA CENTER FOR POLITICS DIRECTOR: Yeah, it's just June, absolutely.
MACCALLUM: Busting out all over.
SABATO: While polls matter at any particular time, you want to look to them, but you want to look to the polling averages, Martha. You never want to focus on individual polls, and actually in a way, we were lucky to have these two very different polls come out simultaneously because obviously they can't both be right. Maybe they're both wrong, but you know at least one is wrong.
MACCALLUM: Chris, when you take a look at this and you look at the work that Donald Trump clearly has to do, I mean, you know, if these -- if you split it down the middle, I mean you can't really find a poll -- maybe there's one I saw out there today where he was ahead.
CHRIS STIREWALT, FOX NEWS DIGITAL POLITICS EDITOR: No. No. But the professor is quite right. Do you like Slim Jims? The way you get a delicious Slim Jim, bursting with flavor, is you take a bunch of different meats, various meats.
MACCALLUM: This is really gross.
STIREWALT: You put them through a process and you have a new product at the end. That's the polling average.
MACCALLUM: But nobody wants to see how the Slim Jim is made Chris.
STIREWALT: You don't look inside. Don't look inside. I'm telling you don't look inside. So, when we look at the polling average, Hillary Clinton is seven points ahead of Donald Trump. That's how it stands. And that's probably right. But there's a difference between polls being properly conducted and accurate and being predictive, and to the professor's point, we don't know what it's going to look like in November.
The problem for Donald Trump right now is this is the season in which voter attitudes set up. I use the analogy of concrete. The concrete is setting up. Voters are getting their second look at Trump. It's not setting up great. He needs to change the contour of the race.
MACCALLUM: But he says it's a dirty poll, Chris.
STIREWALT: Oh, well.
MACCALLUM: Washington Post he says, oh, they hate me. It's a dirty poll even though that he was ahead in that poll, and he kind of liked it back then.
STIREWALT: You ever heard of winning politician complain about the polls? Not once ever in history. So, this is some stuff that you say -- politicians have to -- you can't just say, yeah, we're losing, and we're going to fix it. What Trump is saying is the polls are wrong, but also acknowledging quietly we're really going to launch it big after the convention and we're really going to come in that (ph).
MACCALLUM: Yes, this is so interesting. They keep saying we haven't really started yet. They've been going for months, since last summer, over a year now. And, Larry, they say they haven't started yet. One of the interesting things post-Brexit is that there's this idea of the shy Tory vote, right? And that's what -- you know, people don't want to admit that they wanted to exit the E.U., but when they went in there and pushed that lever, they sure as heck did. And they say there's a shy Trump vote out there as well. What do you think?
SABATO: Yes. Well, first, I want to tell Chris that I like his metaphor about Slim Jim so much, I plan to steal it and this is...
MACCALLUM: You're supposed to get an A in your class.
SABATO: ...that I'm going to do that.
STIREWALT: I'd never get into UVA.
SABATO: It was really good. Now, it was a very good metaphor. Anyway, look, on the shy Tory vote, we love calling the shy Tory vote the shy Tory vote. But what it really is, is a social desirability effect. That is some people don't want to tell a live interviewer that they are for Trump, or some candidate that they may perceive as being unpopular, or they may think the interviewer doesn't want to hear. So they will often say they're undecided.
They rarely say they're for the other candidate. They just claim to be undecided. And there is some evidence of that. Usually it isn't much more than a point or two or three, and there's a way to check by the way. And I'm going to be looking at this. I'm sure Chris is too. You can check the difference between online polls and live interviewer polls. Online polls have no individual listening to your answer. So the theory is at least people are more honest.
MACCALLUM: More honest. Yeah.
SABATO: Whereas with live interviewers, they may fib.
MACCALLUM: One last quick question for you, Chris. These polls are basically pre-Brexit. Do you think he is helped by that vote at all?
STIREWALT: No, I don't think it has really much effect. Now, if the whole of Europe's economy turns into a giant dumpster fire, yes, he will be affected. But I don't think that Americans particularly -- I mean they watch. I'm not saying people don't watch, aren't interested. But I don't think -- voter psychology doesn't say.
MACCALLUM: But it might legitimize some of what those shy Trump voters are feeling and they might say yes, you know, the angles are right.
STIREWALT: I have not known the Trump voters to be very shy to this point.
MACCALLUM: Yeah. I mean, we're talking about the ones who are not shy. You know they're out there.
STIREWALT: I know, I know, I know, but what I'm saying is this. Look to this for correlation. There's an indication about what's going on in the electorates because the two electorates look similar, but don't look to this for causation. The Brexit doesn't make American voters do something. American voters don't make English voters do something.
MACCALLUM: That shy little Tory girl out there. All right, guys, thank you. Slim Jims and Tory. Good to see you both tonight, I think. Thanks, guys. Good to have you here.
So how about this story tonight? When pop superstar Justin Timberlake tried to praise an African-American actor this weekend, he was pounded by the social media. We're going to show you what he learned about America in that process.
Plus the Baltimore D.A. is now being accused of misleading the grand jury. This is a very serious charge that charged those six police officers that you see on the right-hand side of your screen. And you know charging them has not gone so well for her so far. Kevin Jackson and Daryl Parks join us next on where that could lead.
MACCALLUM: The Kelly File follow up tonight with the stunning revelation in the trial of the Baltimore Six. The Baltimore Sun is now reporting that the grand jury, which indicted the six officers that you see on your screen may have been misled about the case from the very beginning and the facts surrounding the death of suspect Freddie Gray.
That claim is based on notes from the police department's lead investigator, who says that she told jurors exactly what the prosecution wanted her to tell them despite the fact that it did not line up with her own findings. Trace Gallagher live with the background on this story tonight from our west coast newsroom, Trace.
TRACE GALLAGHER, FOX NEWS CORRESPONDENT: Hey Martha, in the wake of officer Caesar Goodson's acquittal on second degree murder charges, there are now repeated calls for state's attorney Marilyn Mosby to drop the charges against the remaining officers. But a new report is now calling into question why the trials went forward in the first place. The Baltimore Sun has obtained and published case notes, information they received anonymously but verified independently.
In those notes, lead detective Dawnyell Taylor states that the evidence she read to grand jurors deciding whether to indict the officers was misleading, writing, and I'm quoting, "As I read over the narrative, it had several things that I found to be inconsistent with our investigation, and I thought the statements in the narrative were misquoted." But Taylor felt conflicted about questioning the information given to her by the deputy state's attorney, so she went forward.
But when the jurors asked her questions like, was Freddie Gray's arrest legal, prosecutors intervened before she could answer, with Taylor writing, "they did not intend for me to answer any questions because all of my answers would obviously conflict with what I had just read to them." The case notes don't say exactly what evidence Taylor considered misleading, but experts say it's unheard of for a state's attorney's office to provide investigators with prepared statements.
Normally detectives and prosecutors work together to present a case. The Baltimore Sun also published an op-ed calling the report disturbing, saying that the cardinal duty of a prosecutor is to refrain from prosecuting a charge that they know is not supported by probable cause. The paper is now demanding a formal investigation, Martha.
MACCALLUM: Very troubling. Trace, thank you. Joining me now with reaction, Kevin Jackson, Fox News contributor and executive director of the blackspear.net, Daryl Parks is a former attorney for both Trayvon Martin and Michael Brown's families. Good to have both of you with us. Darryl, let me start with you. What was your reaction to what you just heard?
DARYL PARKS, TRAYVON MARTIN AND MICHAEL BROWN FORMER ATTORNEY: Well, I think we have to be very careful here because what we do know is that prosecutors enjoy very, very wide immunity when it comes to cases like this. I think it's also very important that this particular detective was not very specific as to what she did not agree with that the prosecutor presented.
I think it's also very noted here that this particular officer was asked to get off the case by the prosecutor's office and the police department declined. Obviously there's a big rift that exists between the police department and the prosecutor's office. Certainly you have to question whether this particular detective should have been on this case.
Notwithstanding that, there's also a difference of opinion that the medical examiner in this particular case said that the death was a homicide, and this detective said in her notes that it was an accident. So, I think you have to question the truthfulness and where these comments are coming from in this case.
MACCALLUM: I mean the case so far, the case -- the people that have been tried so far, it's been falling apart. And that's what's raising a lot of serious questions here about this case. And you think back to Mike Nifong in the Duke case, he was disbarred and jailed for misrepresenting the evidence and lying about the evidence. We're not saying that's what's happening here, but there is the potential. If people were misled on that grand jury for some action against Marilyn Mosby, is there not, Kevin?
KEVIN JACKSON: Well, the operative thing that Daryl started out by saying is we have to be very careful here. What's interesting is we have to be very careful when it's the other side that's being looked at. They weren't being very careful when they decided they were going to prosecute these six officers. And quite frankly, a lot of people look at this and say, why did it -- it was almost like they just said, you know, let's throw the proverbial crap against the wall and see what sticks.
And now we decide -- he's talking about let's be careful. They should have been more deliberate when they were looking at this case in the beginning and deciding on who really might be at fault and making a determination about who really should be prosecuted because as we've seen, three of them are now innocent -- or have been found innocent, and three others are probably going to be dismissed because their cases are less than those.
MACCALLUM: I just want to take a moment to show everybody Marilyn Mosby when she first came forward very forcefully and made her statement about what she felt had transpired. She talked about the youth of the city. Let's listen to that part.
(BEGIN VIDEO CLIP)
MOSBY: The findings of our comprehensive, thorough, and independent investigation coupled with the medical examiner's determination that Mr. Gray's death was a homicide, which we received today, has led us to believe that we have probable cause to file criminal charges. To the youth of this city, I will seek justice on your behalf. This is a moment. This is your moment.
(END VIDEO CLIP)
MACCALLUM: Well Daryl, that's the part that confuses me. I don't know why it's a moment for the youth of the city. It's a case that has to be determined to be accurate and true or not. Why is it a moment for the youth of the city?
PARKS: It's a moment because Marilyn Mosby has seen and been a part of Baltimore for a long time, and she has seen that the police department of Baltimore has victimized many other youths in that city. So it's going for so long...
MACCALLUM: That's not relevant. I mean, this is an individual case.
PARKS: It's very relevant.
MACCALLUM: It's an individual case, and it turned out so far to be falling apart.
PARKS: It's not irrelevant.
MACCALLUM: I got to jump in very quickly. Kevin, last 20 seconds.
JACKSON: No, it's completely irrelevant because Mosby had been the state -- had been in that role for many -- for a long time. So had Shelby Blake, or I'm confusing who I'm talking about, but the mayor. So, if there was anybody who was making a mistake here...
MACCALLUM: Stephanie Rawlings.
JACKSON: Stephanie Rawlings-Blake -- it was those people that were in charge. So, how is it suddenly a miscarriage of justice?
MACCALLUM: Hard breaks (ph). We got to go. Thank you very much, gentlemen. We'll be right back.
(BEGIN VIDEO CLIP)
JESSE WILLIAMS, ACTOR: And we're done watching and waiting while this invention called whiteness uses and abuses us, burying black people out of sight and out of mind, while extracting our culture, our dollars, our entertainment like oil, black gold. Ghettoizing and demeaning our creations, then stealing them, gentrifying our genius, and then trying us on like costumes before discarding our bodies like rinds of strange fruit.
(END VIDEO CLIP)
MACCALLUM: Okay, that was actor Jesse Williams accepting the Humanitarian Award at last night's BET. Awards. The raising (ph) speech became an instant hot topic on twitter, garnering reaction from several high profile celebrities including Justin Timberlake, who tweeted, "@iJesseWilliams tho. #inspired #BET2016."
Now, that comment has set off a vicious backlash on social media sites with some users suggesting that Timberlake is guilty of, "appropriating black culture." Joining me now to figure this out, Louise Mensch, she was editor of Heat Street. Louise, take us through this.
LOUISE MENSCH, HEAT STREET EDITOR: This is just an incredible story, Martha. First of all, Jesse Williams makes a speech with some people found inspiring, other people found very insulting. His mother, after all, is a white woman so, it was a controversial speech in the first place. And Justin Timberlake comes out and supports him. He says he's inspired. And what does he get for his trouble? He gets a huge backlash from social justice warriors saying that he should not dare to have an opinion.
MACCALLUM: He's not allowed to discuss it. He's not allowed to say that he was inspired. So this is some of this -- you know, what he got back at him. "So, does this mean you're going to stop appropriating our music and culture and apologize to Janet, too?" He's talking about Janet Jackson and the Super Bowl incident. And then Justin Timberlake came back and said, "oh, you sweet soul, the more you realize we are the same, the more we can have a conversation. Bye."
MENSCH: Right, and then he got an even worse backlash. So what's crazy about this is that Martin Luther King's dream of being judged on the content of your character is now considered racism. Let's look at this. Timberlake, he tweeted two words, inspired, and this is somehow terribly insulting. I think the idea of cultural appropriation is a complete nonsense.
Are we going to tell African-Americans that they shouldn't be using novels because that's a form of art that was invented by white people? True artists like everybody to appreciate their art, whether it's rap music, whether it's novels, whether it's madrigals, whether it's sculpture. So, I really think these social justice warriors need to back off a little bit.
MACCALLUM: I mean, that's the way it has always been between artists. There should be no color that is part of making your art. And as you point out, people can appreciate it across the board. I mean it's -- and basically Justin Timberlake eventually sort of apologized, right?
MENSCH: I think the worst thing about this whole incident to me was not so much that he got backlash from a bunch of crazy liberals, but then he said he was sorry for it, and he was sorry he had spoken up in the first place. There's too much censorship and silencing going on. It would have been better if he said you know what, back off. I liked the speech. That would have been better.
MACCALLUM: Exactly, if he stuck to his guns and basically said he was just making a compliment.
MENSCH: Say bye, bye, bye.
MACCALLUM: Exactly. Louise, thank you. Wow, try to figure that one out, folks. Thank you very much. Good to have you here tonight. Quick break, and we will be right back with more.
MACCALLUM: Thank you very much for joining me here tonight on "The Kelly File." Megyn Kelly will be back, but we covered pretty much everything, right, from Slim Jims to shy Tory and everything in between. You can go to facebook.com/thekellyfile and weigh on tonight's show. Thanks for watching everybody.
Tomorrow night, Mark Cuban is going to be here, but tomorrow morning your first stop has to be America's Newsroom. I will see you bright and early at 9:00 a.m. eastern time. Thanks for joining us, everybody. We'll see you tomorrow. Have a good night.
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