Gowdy: False statements proved Clinton's 'intent'; Chaffetz asks FBI to investigate if Clinton lied under oath

House Oversight Committee member goes on 'The Kelly File' to discuss his confrontation with FBI Director James Comey


This is a rush transcript from "The Kelly File," July 7, 2016. This copy may not be in its final form and may be updated.

MEGYN KELLY, HOST: Breaking tonight. Almost five hours of testimony from the director of the FBI is raising serious new questions about the judgment and experience of a woman who President Obama calls the most qualified person ever to run for the highest office in the land.

Good evening and welcome to "The Kelly File," everyone. I'm Megyn Kelly.  For hours today on Capitol Hill, lawmakers grilled the director of the FBI over his decision not to recommend criminal charges for former Secretary of State Hillary Clinton over her use of a private e-mail server. And in moments, two of those lawmakers will be here. Chairman of the House Oversight Committee Congressman Jason Chaffetz will tell us why he now thinks the FBI needs to open another criminal probe of Mrs. Clinton's behavior.

And Congressman Trey Gowdy will explain the legal strategy behind his fierce exchange with Director Comey. As we've made clear on this broadcast, the FBI Director does not think Mrs. Clinton committed a crime, but he does believe that she showed, quote, "extreme carelessness in her handling of the nation's most sensitive secrets." It is a criticism hitting directly at the heart of Mrs. Clinton's pitch to American voters.  That she is the knowledgeable, steady hand the country needs. Today Director Comey's testimony appeared to challenge some of those very claims.  Watch.


HILLARY CLINTON, D-PRESUMPTIVE PRESIDENTIAL NOMINEE: As a candidate for president, there's nothing I take more seriously than our national security.

JAMES COMEY, FBI DIRECTOR: I don't think that our investigation established that she was actually particularly sophisticated with respect to classified information.

CLINTON: I have some experience with the tough calls and the hard work of statecraft.

COMEY: In the one involving top-secret information, Secretary Clinton though also not only received but also sent e-mails that talked about the same subject.

CLINTON: But I have a lot more experience as a senator, as secretary of state, that I am more than happy to talk about throughout this campaign.

COMEY: She should have known not to send classified information. As I said, that's the definition of negligence.

PRESIDENT BARACK OBAMA: And there has never been any man or woman more qualified for this office than Hillary Clinton. Ever.

COMEY: I think she was extremely careless. I think she was negligent.  That I could establish.

CLINTON: I'm proud to run on my record because I think the choice before the American people in this election is clear.

COMEY: Why should any person follow the law if our leaders don't? The notion that it's either prosecute or you walk around, you know, smiling all day long is just not true for those people who work for the government.  The broader question is one for democracy to answer. It's not for me.


KELLY: We begin tonight with Marc Thiessen, who's a former chief press secretary to President George W. Bush -- chief speechwriter to George W. Bush and a FOX News contributor. And Austan Goolsbee is a former adviser to President Obama and a professor at the University of Chicago's Booth School of Business.

Wow, so it was quite an indictment really if you parse out what Director Comey said today, Marc, and you look back on, you know, Hillary Clinton's initial claim there. I take nothing more seriously than our national security. Your thoughts.

MARC THIESSEN, FOX NEWS CONTRIBUTOR: No, absolutely. So the whole premise of her campaign is that she has the experience, judgment, and competence to defend our national security. And Director Comey just blew those claims out of the water today. I mean, you showed the clip of her saying, that I have the experience to make the tough decisions of statecraft. Tough decisions like what? Whether to put tough secret information on an unsecured, unclassified server, that's a tough call. I mean for the American people, it's not a tough call, but apparently for Hillary Clinton it is.

KELLY: Uh-hm.

THIESSEN: And this is, you know, what's interesting is, is that incompetence is the only reason she is not being prosecuted. James Comey said that the reason she's not being prosecuted is because she didn't have the intent to endanger our national security. Well, that is either intent or it's incompetence. It's one of the other. It's either she knew what she was doing, in which case it's a crime, or she didn't know that it was dangerous to our national security to put top secret special access information on a private server in her basement that had less security than Gmail, in which case she's not qualified to be president of the United States.

KELLY: Austan, can you take on that last point?

AUSTAN GOOLSBEE, UNIVERSITY OF CHICAGO'S BOOTH SCHOOL OF BUSINESS: Well, I appreciate you having me back. I continue to think why you want legal insight from a guy with an economics PH.D. is beyond me. I doubt it's for my good looks either.

KELLY: No. This isn't about legal insight. This is about, you know, him saying, Marc just put it perfectly. Either she had the intent, or she's too incompetent, you know, to be president. That's his position.

GOOLSBEE: Well, that is his position. I think what you saw from Marc there is reflective of what you're seeing from some of the Republicans on these committees, what you may hear from the congressmen themselves as they come later, which is a tendency to dramatically overreach and overstate what the matters are. So if you looked at the testimony today, it's clear the lines you chose were picked -- I'm not going to say cherry-picked, but they were picked to present an argument.

One of the arguments about the level of sophistication that Hillary Clinton had, had to do with, did she recognize that misclassified documents, documents that are supposed to say the level of classification on the top, according to the government's regulations, that the classification was stuck in the middle and so had she seen it. And Director Comey said that he didn't know her level of sophistication of looking for those symbols, but that a reasonable person could easily have missed it and that there were only three such e-mails that were marked classified, and they were all misclassified.

KELLY: But, Austan, he also found that she was negligent, and that necessarily means she fell below the standard that would have been maintained by a reasonable person in similar circumstances. You make it sound like he said, oh, you know, poor thing. She just missed this really hard thing. No, it was Director Comey out there saying she was negligent, which was his new word today, and extremely careless. And I put that one I guess to you, Marc, because it wasn't just that Director Comey said she missed stuff that was really tough to miss. He said she missed stuff anybody would have seen. That was his point.

THIESSEN: Yes, no, absolutely. In his statement yesterday, he said that it doesn't matter whether it was marked. She's the one who classifies stuff. She should know what's classified and what isn't, and there's a law she has a responsibility to know. But, again, these are not -- Austan is trying to say this is the Republicans or the congressmen are going to say this. This is not a Republican congressman. It's not me, a conservative commentator. This is Obama's director of the FBI saying the words, not just negligence, the definition of negligence. Extremely careless. Should have known better. Do those sound like the words of somebody you would trust with the nuclear codes? And Austan and I both know --

GOOLSBEE: Would you feel differently Marc --

THIESSEN: Austan and I both know that if either one of us when we were on the White House senior staff had done with Hillary Clinton had done, we would have been fired on the spot and we would never get a security clearance again, and if her name wasn't Clinton, neither would she.

KELLY: How about that, Austan? Would you believe that? Would have been fired? Would you have been out here?

THIESSEN: Would you be fired, Austan?

GOOLSBEE: I was in the cabinet. I wouldn't be fired. I was in the cabinet. I received many confidential briefings. We would always get the jobs numbers the day before, and the fact is that when he's highlighted that this is about three e-mails --

THIESSEN: It's not about three e-mails. It's not true.

GOOLSBEE: Wait. Please let me finish.


GOOLSBEE: Three days ago, the Republicans said that she had classified marked e-mails on her server that contradicted her previous statements and that Director Comey had shown that she was lying. Today, Director Comey illustrated that those were only three e-mails.

KELLY: Austan, you're significantly downplaying this.

GOOLSBEE: And they were the lowest level of classification.

KELLY: The number of -- to be charitable to her, misrepresentations. We ran through them two nights ago. There were at least eight that she said that weren't true, that she never sent or received classified information.  Not true. I mean the list -- like we could go through it again, but it's just easier to go to But to suggest just that one line rehabilitates her is really disingenuous.

GOOLSBEE: Look, I said from the beginning on this, and what the standards are of evidence of what is the legal definition of negligence or what have you, I don't know. I do know that, A, when you look at what the Republicans are doing, they did this to Obama. They did this when they tried to impeach Clinton. And they will have a hard time if they cannot get a Republican. For Marc to call him Obama's FBI director, it's true, and he's a Republican.

KELLY: He's a republican. I got to leave it at that. But I like this speaking in outline. As a former lawyer, that actually appeals to me.  Like, I can follow roman numeral one, A, B. Thank you for doing that for me.


KELLY: And it's great to see you both.

THIESSEN: Thanks, Megyn.


KELLY: So Director Comey's toughest questions seem to come from our next two guests.

Up next, House Oversight Chairman Jason Chaffetz joins us on what he thinks the FBI missed and what he wants them to do now. And Congressman Trey Gowdy reveals the secret strategy behind the fierce questions he put today to the director.

Plus, Donald Trump visits Capitol Hill and it got a little ugly with a couple of senators. Charles Krauthammer and Governor Mike Huckabee are here just ahead on the fallout.

And breaking tonight, growing protests in several major cities right now.  Marchers angry about two separate police shootings in the last 48 hours, both involving black suspects. And now President Obama has just weighed in. We're watching the story unfold live on a busy "Kelly File" tonight.  Stay with us.


KELLY: Breaking tonight, new fallout from the FBI director's testimony today on the Hillary Clinton e-mail scandal. Moments after the hearing ended, Republicans in the Senate joined the House in launching a new push to block Mrs. Clinton and her top aides from handling any more of America's secrets, saying their behavior has, quote, "put lives at risk." We also heard new revelations about Mrs. Clinton's personal lawyers who went through her e-mails. Director Comey saying they lacked the security clearance to do that. And he went on to say they may have deleted classified information.

Plus, the director testified that up to ten other people had access to her server without having the necessary security clearance. But one of the most talked about moments today came when Congressman Trey Gowdy confronted Director Comey with a laundry list of false statements that Mrs. Clinton has made in the course of this investigation. Watch.


REP. TREY GOWDY, R-S.C.: Secretary Clinton said she never sent or received any classified information over her private e-mail. Was that true?

COMEY: Our investigation found that there was classified information sent.

GOWDY: Secretary Clinton said there was nothing marked classified on her e-mails, either sent or received. Was that true?

COMEY: That's not true.

GOWDY: Secretary Clinton said I did not e-mail any classified material to anyone on my e-mail. There is no classified material. Was that true?

COMEY: There was classified material e-mailed.

GOWDY: Secretary Clinton said she used just one device. Was that true?

COMEY: She used multiple devices.

GOWDY: Secretary Clinton said all work-related e-mails were returned to the State Department. Was that true?

COMEY: No. We found work-related e-mails.

GOWDY: Secretary Clinton said her lawyers read every one of the e-mails and were overly inclusive. Did her lawyers read the e-mail content individually?



KELLY: Joining me now, House Oversight Committee member Congressman Trey Gowdy.

Congressman, good to see you and good for you because it takes work to actually go through the record and tick it off like that so that the American public has an understanding about what you're doing in there. And you went to the heart of it, which is what he proved -- what the FBI proved. Maybe it was a crime, maybe it wasn't, but it was absolutely that she misled over and over and over again. Your thoughts.

GOWDY: Well, there's no question she made false statements to the public, but the reason I went through that exercise with Director Comey is, let's assume he's right, and there's an intent element in the statute. I think there was circumstantial evidence that she had the intent, and one way to prove circumstantial -- prove intent by circumstantial evidence is false exculpatory statements. Innocent people don't lie. So if you have a series of false statements, then you need to ask yourself while do you feel the need to mislead. It might be consciousness of guilt.

KELLY: Uh-hm. And what do you think the response to that is? I mean, he's basically looking at history saying we just haven't done it, we haven't prosecuted people for gross negligence.

GOWDY: You know, John Radcliff is one of my colleagues from Texas. He believes that it has been done. But let's assume Director Comey is right.  That's true with every statute until somebody decides to do it.

KELLY: But should you be doing it for the first time or near the first time with somebody who is running for president? You know, it would have been pretty dicey.

GOWDY: It would have been although there were other statutes he had at his disposal. I go back to the plain text. There's a reason Congress said grossly negligent. If you think that that statute is void for vagueness, it would have been a good idea to let us know sometime before today.

KELLY: Mm-hmm. Do you think that he's a straight shooter? People are really going after Director Comey?

GOWDY: Yes. No, I do.

KELLY: Do you think politics were at play here in his decision?

GOWDY: Boy, the second one is tough, but I'll tell you why. Yes, I think he's a straight shooter. I think the exact same thing about Jim Comey that I did this time last week and I will this time next week. I think he's a straight arrow. We just fundamentally disagree on that element and whether or not he could have proven intent by circumstantial evidence. Did politics influence it? I can tell you based on my previous life, it is always tougher to convict or prosecute someone who is well known.

KELLY: Mm-hmm.

GOWDY: It just is. He might not feel comfortable telling you that, but I will tell you that.

KELLY: Do you think --

GOWDY: But I don't know whether that influenced him.

KELLY: Do you think there's any chance that she, Hillary Clinton, is not going to get access to, you know, top secret information, classified information as a candidate now between now and November given what she did?

GOWDY: Well, you know, he was pretty clear if she worked for the FBI, she'd have some difficulties. Paul Ryan today said, deny her access. What she did, Megyn, is really unprecedented and incredibly reckless. You can't stop the president of the United States from accessing classified information, but she ain't there yet.

KELLY: Mm-hmm.

GOWDY: So I hope people will put the politics aside. You're talking about men and women whose political ideations we don't know anything about and who are risking their lives to gain intelligence for us, and you put it on something with less security than Gmail? Come on.

KELLY: Mm-hmm. Congressman, great to see you. Thanks for being here.

GOWDY: Yes, ma'am. Thank you.

KELLY: Another major revelation out of today's hearing was that the FBI never investigated whether Hillary Clinton lied about her e-mails in her under-oath testimony to Congress. They said no one ever referred that to us. We never looked into whether she lied under oath. Catherine Herridge reported on our air last night that this was likely to become a major issue. And our next guest is now calling for a new FBI investigation into that very question.

Utah Republican Jason Chaffetz is chairman of the House Oversight and Government Reform Committee. Great to see you tonight, sir.


KELLY: You seem surprised that he hadn't investigated that. Have you made the referral now, and do you expect the FBI to launch another investigation?

CHAFFETZ: Well, I didn't know that the FBI needed a permission slip in order to see if somebody lied under oath. I really thought that that was part of the investigation. But if he needs paperwork from the House of Representatives to look at that, then we will certainly give him that. And I think Bob Goodlatte, the chairman of the Judiciary, Trey Gowdy, myself, a host of other people will get on that letter if that's what he needs.

KELLY: Uh-hm. And where do you see that going because they say, look, if she committed perjury in her testimony before the House by saying, I never had anything that was classified, I never sent or received classified information which we just saw in that exchange, now that was true. The bar to prove perjury is very high. I think they said six times in 60 years has anybody been convicted for perjury or even a related charge. It's really hard to prove in Congress.

CHAFFETZ: Well, again, I just want the FBI to dive into it and look at it.  Based on the fact pattern that Director Comey put out there, it's clear that she misled the public. But it's a whole different level when you come to Congress, you raise your right hand and you affirm under oath that what you're saying is the truth, the whole truth, and nothing but the truth, and then the FBI finds that those items are false.

KELLY: Can you --

CHAFFETZ: There should be a consequence for that as well.

KELLY: Can you explain why the hearings today were necessary, right? Last night on the air we were talking about, why don't you just take what you got from Director Comey, all the lies and so on, and go with it? Why rake him over the coals about not taking the extra step?

CHAFFETZ: Well, look, we learned a lot more about this problem and the pervasiveness. You know, the second panel, we actually exposed the fact that these classified e-mails have such a high classification, not even members of Congress, not even as chairman of the Oversight Committee do I have the necessary security clearance to look at those. And yet we heard for the very first time from Director Comey that there were up to ten people that had access to this information. So it's gone beyond just that server. They were now -- this classified information in a non-secure setting with people who did not have the adequate security clearances.

KELLY: Will anything happen to her as a result of this? Forget politics.  The voters will decide in November. But what could happen to her because of this?

CHAFFETZ: Well, I mean, literally just a short time ago, the State Department has now announced that they've reopened their investigation not only to Secretary Clinton, but to the employees within the State Department. We want people to be held accountable, but we've also got to fix this because classified information is there for a reason. It puts people's lives in danger.

KELLY: Uh-hmm.

CHAFFETZ: It opens up our nation to severe consequences, and she created this herself. It wasn't Republicans. It wasn't -- she did this to herself. She did it to this nation, and we've got to go back and try to repair it.

KELLY: Uh-hm. And then when you started looking into it and the media also did --


KELLY: Everyone was dismissed as absurd. Absurd. Congressman Jason Chaffetz, always a pleasure. Great to see you.

CHAFFETZ: Thanks, Megyn.

KELLY: But we also have new fallout tonight from what became a contentious meeting between presumptive Republican nominee Donald Trump and some Republicans in Congress today. The details of what happened behind closed doors with Dr. Charles Krauthammer and Governor Mike Huckabee, next.

Plus hundreds of protesters are marching through New York, Philadelphia, and Atlanta tonight at this hour, angry about two police shootings in the last 48 hours. We have live pictures for you here. Look at this. Look at Times Square tonight, where we are told everything is shut down. The protesters are chanting about racist cops. We'll show you what President Obama said about all of this just ahead.


OBAMA: To be concerned about these issues is not political correctness. It's just being American.



ANNOUNCER: From the World Headquarters of Fox News, it's "The Kelly File" with Megyn Kelly.

KELLY: Well, we are getting new reaction tonight to a series of reportedly tense meetings on Capitol Hill between Donald Trump and some key GOP members of the House and Senate. Including his former rival for the nomination, Senator Ted Cruz. Dr. Charles Krauthammer is here with his take on a day that's already been billed as controversial. And Governor Mike Huckabee joins us with the latest on the criticisms Trump is getting for what was said at those meetings.

But first campaign Carl Cameron reports from Washington. Carl?

CARL CAMERON, FOX NEWS CHIEF POLITICAL CORRESPONDENT: Thanks, Megyn.  Trump met privately first of all with about 200 House Republicans then separately with Senate Republicans and got mixed reviews after both of the meetings. A number of Trump backers were quick to say it was a great speech and a wonderful meeting, but there were also plenty who said it was a stream of consciousness rant like any of his rallies and lots of hyperbole and not a lot of facts or policy. Arizona Senator Jeff Flake actually confronted Trump for having said, fellow Arizona Senator John McCain was not a war hero almost a year ago.

Trump recognized Flake as a major critic almost immediately, particularly on trade, and according to those in the room, Trump threatened to defeat Flake for re-election, who reminded him he's not up for re-election until 2018. Then there was Senator Ben Sasse of Nebraska. He actually did go to the meeting, though he is a staunch Trump opponent. And afterwards his spokesman said nothing's change. Sasse believes the country is in a bad place with Trump and Clinton as the candidates and the election remains in his words a dumpster fire.

Having said that, House Speaker Paul Ryan who has been critical of Trump said it was a good meeting and Trump did a great job engaging members of Congress and made it clear that he wants to work with him. That's a big deal. And finally, just former rival Ted Cruz, he meet privately with Trump this morning and says Trump asked him to speak at the convention and he agreed. He said Trump also asked for advice on judicial appointments and Cruz offered to help. But there was no discussion of endorsement, which obviously Trump would like but didn't ask for -- Megyn.

KELLY: Carl, thank you. As Carl just mentioned, Senator Ted Cruz held a meeting with Mr. Trump today. Just a little over two months after Senator Cruz said this.


SEN. TED CRUZ, R-TEXAS: I tell you what I really think of Donald. This man is a pathological liar. He doesn't know the difference between truth and lies. He lies practically every word that comes out of his mouth.  Donald Trump is such a narcissist that Barack Obama looks at him and goes, dude, what's your problem? The man is utterly amoral. Morality does not exist for him. It's why he went after Heidi directly and smeared my wife.  Donald will betray his supporters on every issue.


KELLY: Joining me now with more, nationally syndicated columnist and Fox News contributor Charles Krauthammer. Charles, great to see you.

So, let's just start with Ted Cruz. Ted Cruz, who the last day of the primary came out and just annihilated Trump, saying, I'm going to tell you what I really think of him. And then, you know, just spewed the most hateful, vile things he could think of. And now we're supposed to listen to him speak at the convention like he's some credible witness for Trump's presidency?

CHARLES KRAUTHAMMER, FOX NEWS CONTRIBUTOR: I think this is exactly what Trump began his campaign by campaigning against this kind of obvious insincerity one way or the other. But perhaps on both sides, for Cruz, this is a guy who said I don't know if I could ever support somebody who insulted my wife the way that Trump did. On the other hand, Trump had intimated that he wouldn't allow Cruz to speak at the convention unless he was endorsed. So I think these counts as some kind of compromise and kind of a plus for Trump in getting Cruz at least nominally on board and perhaps he'll get his endorsement eventually.  

KELLY: Hmm. I wonder how the women of America are going to react to Ted Cruz getting up there and saying, you know, good things about the man who insulted Ted Cruz's own wife and her appearance.

KRAUTHAMMER: Well, I'm not sure that Cruz endeared himself to the women or the men of America preceding this event. I mean he's a staunch conservative, and his appeal was ideological. I'm not sure it ever was personal.

KELLY: Politics is so weird or as Stirewalt calls it, grody. Let's talk about how Trump did today because there were mixed reports about the things he said, and some of the feathers he ruffled when he was on Capitol Hill, in particular all over the Senate. Your thoughts.

KRAUTHAMMER: I think it's the same Achilles' heel he's had all the way through. When he stays away from personal stuff, his being offended, not being respected enough, not being given the proper homage -- the way he went after Governor Susana Martinez of New Mexico, completely gratuitously, really self-destructively.

It didn't help him. As long -- when he stays away from, that he does okay. His issues are very appealing. The populist appeal on both immigration and trade, and when he talks policy, which I assume, according to Speaker Ryan, he mostly did in with the House members, he did reasonably well.

But in the Senate, he wanted to pick a bone with those who haven't bended a knee to him, including, as we just heard, Senator of Arizona Jeff Flake. And that led to an embarrassing encounter where Trump appeared to obviously not even know that Flake isn't even up for re-election.

KELLY: And flake, you know, with the opening line to Trump said, "Yes, I'm the other senator from Arizona, the one who didn't get captured. And I want to talk to you about statements like that." It did not go well. And then Trump apparently told, you know, instead of Senator Mark Kirk who's not supporting him called him a loser, and, you know...


KELLY: It was never going to go well with Ben Sasse, who thinks it was a dumpster fire. But what of the misstatement of the constitution, you know, that he really likes Article 12 and of course there is no article 12.

KRAUTHAMMER: Well, given the -- if you want to give him the benefit of the doubt and I'll leave it up to you and the viewers, you can say that he just mistook article for amendment. So he was thinking -- he was asked would you defend Article 1, which means the powers of Congress.

Assuming that he misinterpreted that to mean the first amendment, so he goes on to 12, et cetera, amendments. But it does tell you that we are dealing with a candidate whose lack of knowledge, lack of preparedness in terms of the fundamentals of government is quite breathtaking.

KELLY: Charles Krauthammer, great to see you, sir.

KELLY: My pleasure.

KELLY: Joining me now with more, Governor Mike Huckabee. Governor, great to see you. So, what do you make of Ted Cruz? "Trump is utterly immoral. He's a pathological liar. I'm Ted Cruz. Welcome to the Trump convention."

MIKE HUCKABEE, FORMER ARKANSAS GOVERNOR: Well, let me tell you something, one of the reasons you don't say that kind of stuff during a primary is that one of two things will happen. You will be the nominee, and all the people that you said, that you know, you're talking about have got to come up there and put their arms on you, or you've got to go up there and put your arms around the people you said were a bunch of bums.

If you're the Democrats, you're going to beat the daylights out of a guy like that. You're going to say, "Okay, quit (inaudible) your lines when you said this or when you said this.

KELLY: Well, how is anybody supposed to take him seriously when he gets up there? And what's he going to say? Donald Trump is the man for us! The most he could do credibly would be something sort of weak softly, like better than Hillary and who needs that at the convention?

HUCKABEE: Or he can just go up there and say, I've seen the light, dear Jesus. I'm now going to be there with Donald Trump.

KELLY: Oh, please.

HUCKABEE: But no, it's disingenuous no matter what and it's really...

KELLY: Thank God for Ohio.

HUCKABEE: That's it. And it's a very awkward thing. So, I think the longer you're in politics, the more you're careful about saying things that you're going to have to eat later with syrup on top of it.

KELLY: What do you make of the conduct of some of these senators in this meeting? Trump goes to Capitol Hill. He didn't have to do it. He's trying to unite the party. These people, they don't like him. They give him a hard time like, you know, Ben Sasse is not a Trump fan. Why bother? You, know, why show up to give him a hard time?

HUCKABEE: You know, I guess to get some attention because we're talking about him tonight. But look, here's the fact, if Donald Trump is president, I think he likely will be, but I hope he is. It will be a bad place for Jeff Flake to be in two years not because he will have his election upended by Donald Trump.

It probably won't be that big og an effect, but when Senator Flake needs something for Arizona, he ain't going to get it. And I'm going to tell you something, presidents can play hardball and can punish the people who didn't want to stand up there with him.


HUCKABEE: Do you think there'll ever be an appointment to West Point, Annapolis or the Air Force Academy that will come through his office? Do you think there'll ever be a grant with his name on it that he'll ever be invited to make the dedicatory speech out of Rhode (ph)? I mean, I'm telling you, there are ways that are painful.

KELLY: You can get punished.

HUCKABEE: And you never get just -- even so much as a White House pass for some tourists from your state.

KELLY: Are we going to hear from you at this convention?

HUCKABEE: Donald Trump told me a few weeks ago that he would like for me to speak. I don't know when. I don't know if it's going to be at 2:00 in the morning while their crew is setting up.

KELLY: That's just a little offensive.

HUCKABEE: I just don't know. But I'd like to know pretty soon because I need to be working on it.

KELLY: Hey, Trump, 9:00 p.m. would be a great time for Governor Huckabee. We'd love to see him.

HUCKABEE: Let's do it. I'm all about it.

KELLY: Great to see you sir.

HUCKABEE: Thanks Megyn.

KELLY: So, our control room is right now watching some angry protests in at least four American cities. Times Square is, I mean they are in trouble tonight in terms of the numbers. It's just lockdown there. Big crowds in New York. Big crowds in Dallas.

Marchers chanting about, "Racist cops" after two black men were killed by police officers in separate incidents less than 24 hours apart. Mark and Arthur, you're next. And then we'll bring you the breaking news from the president on all of this. Stay tuned.  


KELLY: Breaking tonight, protesters are gathering across the country after the second black man in less than 24 hours was shot and killed by a police officer. The new case came in Minnesota, where Philando Castile was shot during a routine traffic stop. The aftermath of the shooting was captured and live streamed on Facebook. Listen to Castile's girlfriend narrate what happened just moments before.


UNIDENTIFIED FEMALE: Stay with me. We got pulled over for a busted taillight in the back, and the police just -- he's -- he's covered. He killed my boyfriend. He's licensed -- he's carrying -- he's licensed to carry. He was trying to get out his I.D. and his wallet out of his pocket, and he let the officer know that he was -- he had a firearm, and he was reaching for his wallet. And the officer just shot him in his arm.

UNIDENTIFIED MALE: I told him not to reach for it. I told him to get his hand off it.

UNIDENTIFIED FEMALE: He had -- you told him to get his I.D. sir, his driver's license. Oh, my God, please don't tell me he's dead.


KELLY: Mike Tobin is in Minneapolis with the very latest. Mike?

MIKE TOBIN, FOX NEWS CORRESPONDENT: All right Megyn, we're watching the demonstrators. A group of them just splintered off and went off marching but hundreds remain in front of the Governor's mansion here in St. Paul. They really have been at it all day and all night since the shooting. No indication of any trouble. This has been a very peaceful demonstration and Governor Dayton has been very sympathetic with them, saying that this latest police-involved fatality is evidence of racism.


GOV. MARK DAYTON, D-MINN.: Would this have happened if those passengers, the driver or the passenger were white? I don't think it would have. So I'm forced to confront and I think all of us in Minnesota are forced to confront this kind of racism exists.


TOBIN: It was just around 9:00 last night when Philando Castile was driving through the Falcon Heights suburb of St. Paul. According to his girlfriend, Diamond Reynolds, he was pulled over for a broken taillight. He disclosed that he had a weapon and a permit for that weapon, but when he went for his license and registration according to Reynolds, the police officer opened fire.

Now, Reynolds explained why she didn't render aid. She said she thought she would be fired upon if she suddenly lunged across Castile and tried to help him. She said that she uploaded the whole thing to Facebook because she thought police ultimately would try to cover up the evidence. But that live stream captured one heart breaking image, or heart breaking sound, I should say, of a little girl in the back seat who saw the whole thing.


UNIDENTIFIED MALE: It's okay, mommy.

DIAMOND REYNOLDS, CASTILE'S GIRLFRIEND: I can't believe they just did this. I'm (bleep).

UNIDENTIFIED FEMALE: It's okay. I'm right here with you.

TOBIN: Now, Castile worked with the St. Paul school district since 2002 in food preparation. He recently had been promoted to supervisor at a local Montessori school. He said he was kind and respectful. That's what people said about him. He did have a record but mostly misdemeanors, nothing violent. Megyn?

KELLY: Mike, thank you. Our legal panel is here with more. Arthur Aidala is a New York trial attorney and a Fox News legal analyst. Mike Eiglarsh is a criminal defense attorney former prosecutor. Wow, I mean, that sound of the daughter is heart breaking, and underscores the human element of this, right?

It's like we jump into these legal debates and you skim right over the human element of what happened. Anyway, it's -- it's hard to watch, and yet that doesn't answer the question about whether what we saw on that tape is illegal or, as the governor said, racist. I'll start with you on it, Mark.

MARK EIGLARSH, CRIMINAL DEFENSE ATTORNEY: I'm not prepared to make any conclusions at all. He may be right. He may be wrong too. I say let's wait until all the evidence is in, and then we'll know through a legal lens whether this officer reasonably feared death or great bodily harm, which is the legal standard. Since we don't have all the evidence yet, why not just wait?

KELLY: The thing is Arthur, something important is missing on that tape, which is -- we saw the aftermath, but we didn't see the prelude.

ARTHU AIDALA, FOX NEWS LEGAL ANALYST: Right, and that's why this officer, unlike the officers in Baton Rouge, where you kind of see the beginning, middle, and end of that encounter, this officer at least would have the opportunity of presenting his perception of what took place. I just want to say, Megyn, I'm a little frazzled because I just walked through the protest to come here, through, you know, Times Square and Fifth Avenue is totally closed off.

It's just ironic to watch white police officers, black police officers, Asians, and Hispanic police officers protecting the people on the streets screaming, "Hey, hey, ho, ho, these racist cops have got to go." And although they make a point, you then see the New York City police, which is every color of the rainbow, protecting these people who are screaming almost in their faces. It's just -- it's unsettling. I apologize. It's unsettling to say the least.

KELLY: I know. And there are real consequences to categorizing all cops as racist too. I mean, we've seen the consequences of that. According to the head of the FBI in various cities, people -- you know, we need to be careful in the wake of these events. But, Mark, can I just ask you about the girlfriend?

Everyone is talking about the girlfriend, live streaming the event. We heard the explanation from Mike Tobin, but why wasn't she -- I mean she says he's dead, and he wasn't dead at that point. Like I'm not saying 911 could have gotten there, but what the...

EIGLARSH: I am so glad you brought that up. Look, I don't know how I'd react under similar circumstances. I'd like to think that live streaming the event as my loved one is in pain, still alive, is the last thing that I would do.

AIDALA: Okay, but...

EIGLARSH: I'm glad we have something on video, but the cop also stood there. It didn't look like he was rendering aid. Again, I don't have all the facts, but that troubled me.

AIDALA: But you also hear the police officer scream at her shortly thereafter in the middle of it, don't move. Let me see your hands. Don't move. And she said I was afraid if I approached my loved one, you know, he was going to shoot me as well and...

EIGLARSH: Arthur, you got a phone. Call 911.

KELLY: Let's just listen in for a second. Let's listen one second to what's happening in Times Square. Let's listen in if we can.


UNIDENTIFIED MALE/UNIDENTIFIED FEMALE: No justice, no peace. No justice, no peace. No justice, no peace.


KELLY: No justice, no peace. No justice, no peace is what we're hearing tonight. As you can see, just tempers and tensions are inflamed over this issue. And the thing is, Mark, whether this was a racist cop who shot this guy or not, we've seen so many of these, you know? Is it that more are happening or is it that more cameras are there?

EIGLARSH: Well, we're certainly seeing more of them. And like every plane crash, you think that it's happening a lot more frequently than it might be. I like this. It doesn't mean that I agree with what's being said one way or another. But peaceful protests, that's what this country was founded upon. Go right ahead. Get it out as long as it's peaceful.


KELLY: But to go directly to the racist place, Arthur, you know, I understand the skin colors of those people involved, but to go directly to...

EIGLARSH: Their rights.

KELLY: Their right, Mark?

EIGLARSH: It is a right. Listen, the first amendment allows people to spew (ph) outrageous and offensive...

KELLY: Yeah, yeah, yeah. There's no question they can say it. But I'm saying to you, Arthur, that to go directly -- Jesse Jackson was on the program last night going right to that -- these cops are racist...

EIGLARSH: Oh yeah, I wouldn't got there (ph).

AIDALA: Well, look, I think what the governor said was if that was a white person in there reaching for their wallet, this police officer wouldn't shoot at that person. The problem is and I guess everyone is afraid to say it, is that statistically speaking in this country, that a person of color is more likely to have that weapon than a person -- than a Caucasian.

You know, I know that's not the right thing to say, but that's what the statistics bear out. So, therefore, it plays a role. Wasn't it Jesse Jackson who also said, if I turn around and I see a person of color behind me, I get more nervous than if I turn around and see a white person behind me? I think it was Jesse Jackson.

EIGLARSH: Yeah, it was. It was.

AIDALA: This whole thing stinks.

KELLY: We have much more that we need to cover with you guys. We mentioned Baton Rouge, we haven't gotten into that yet and things are getting tense in Times Square. We're going to hold the panel over and Kevin Jackson is with us after the break. I'm sorry, Eric Guster is with us right after the break. Don't go away.


KELLY: Developing tonight, the situation here in Times Square just steps away from our studios. This is right behind us. You can hear Arthur Aidala talk about his trip here to Fox News moments ago where folks are out on the streets protesting in the wake of this situation in Minnesota.

Another situation in Baton Rouge, Louisiana, involving the shooting of two black men by white police officers in circumstances that looked questionable but have not yet been resolved by those looking into it. Let's just take a listen for a minute.


UNIDENTIFIED MALE/UNIDENTIFIED FEMALE: Hands up, don't shoot. Hands up, don't shoot. Hands up, don't shoot.


KELLY: You can see the sign, "We will not be silent." And the president of the United States was not silent either. He came out and commented today. Listen.


OBAMA: When people say black lives matter, that doesn't mean blue lives don't matter, it just means all lives matter. But right now, the big concern is the fact that the data shows black folks are more vulnerable to these kinds of incidents.

To be concerned about these issues is not political correctness. It's just being American.


KELLY: And we're watching -- let's take a look. Let's just keep our eye on it so we know what's happening there. So far the protest appears mostly peaceful where you can hear the messages, although the messages are incendiary, accusing the cops as a whole of being racist. And as our panel points out, you've got many, many police officers of color in the crowd tonight.

I want to bring back in our panel, Mark and Arthur are still with me along with attorney Eric Guster. Eric, we haven't heard from you on this. Your take as we watch the anger in the streets. And just the -- I mean so far its respectful anger, but the charges of racism before we know all the facts.

ERIC GUSTER, ATTORNEY: Well, the facts that we do know is that black men or black individuals are three times more likely to be stopped by police, two times more likely to be shot by police. And that's why these people are here protesting. And Megyn, the most beautiful thing about this protest is that that audience, the people out there marching, are at least 50 percent white. New York is a melting pot of the United States.

It has all types of nationalities, all types of people, and this is an American problem just like what President Obama said. This is an American problem and Americans are out there together to combat this issue because it's such a reality in so many communities of color and communities involving poor people.

KELLY: Look, we don't have a police officer on the panel tonight or a former police officer. But as former prosecutors, you guys have spent a lot of time with cops, and the thing is it always feels a little discomfiting to be armchair quarterbacking these incidents in the moment, Mark. You know, it's like it's easy for us sitting in the anchor studio to say, "Well, he never should have drawn his gun and shot that man," but these guys put their lives on the line every day.

EIGLARSH: Yeah, I agree. We start the analysis or I do anyway with these officers didn't wake up wanting to kill anyone that day. So what happened? What led them down the path that they felt fear and believed that their life was in danger enough to pull the trigger? I've got to hear what they have to say before I make any conclusion.

KELLY: And yet, Arthur, in the case in Minnesota, the allegations are that he was pulled over. He was asked for his license and registration. He said he had a gun, and according to, you know, his girlfriend, that was to tell them, hey, I got a gun on me. I mean, that's what she seems to be suggesting. And the next thing you know, he's shot.

Now, I understand you might be fearful. He's reaching for his pocket. He's saying he has a gun. But, you know, what obligation do the cops have to beware of the trigger finger, the itchy trigger finger?

AIDALA: Well, look, let's just start off with saying the Department of Justice, I believe in both of these cases, in Baton Rouge, the prosecutor there, the local prosecutor has agreed to hand it over to the Federal authorities to investigate it.

I believe the same thing is going to happen in Minnesota. So, you're going to have the FBI looking into this. And one of the things they're going to look at, touching on what you just said, is what are the proper procedures? What are the -- I don't know, people are running there.

KELLY: Yeah, they're running.

AIDALA: What is a police officer supposed to do? What does the patrol guide say? But, you know, I want to touch for a second...

KELLY: This is Dallas, Texas we're watching here.

AIDALA: ...what the president of the United States said, the president of the United States said that black people are more vulnerable to these -- these shootings by police officers. The next question I want to ask the president of the United States, as the first black president, is why? Can we figure out why? Why is it?

Is it just because of the color of someone's skin or is it based on other things besides that? And I would hope post-presidency that president Obama will focus on the black community and relieving them of this horrible situation that they seem to find themselves.

KELLY: What of that, Eric, because you started off with statistics on, you know, the risk to black men when it comes to their encounters with police. An you heard Arthur's retort which is, well, there could be a non-racist explanation for that.

GUSTER: But there is -- a lot of this is systematic, Megyn. It goes back to education and the school system and job opportunities because when you have lack of opportunities, then people turn to do something else. But this is a systematic issue with our criminal justice system, with our education system and it is a major failure for so many African-Americans and people who are poor as well.


KELLY: FYI, we're trying to watch what's happening in Dallas, Texas. We've seen protests in many locations. Did we lose the feed there? We're trying to -- we're keeping our eyes on it for you. In Times Square, you can see its calm, but very, very crowded. This looks like -- this looks like New Year's Eve in Times Square where we get over a million people.

And this news just broke today. I mean these folks got out, and they got out fairly quickly to make their voices heard. Go ahead. You were saying, Arthur.

AIDALA: I was saying I agree with everything he just said -- Eric just said. I do think it's systematic, et cetera, et cetera, and it needs to be dealt with and that's what I hope the president of the United States will deal with post-presidency.

But talking about the police officers and why those police officers are reacting or overreacting or reacting in a ridiculous manner looking at it in hindsight is that because people of color, for whatever reasons, are the ones who have the higher percentage of violence in their background. I think that's statistically a fact. At least it is in New York.

KELLY: All right. Look, we're looking back in Dallas, Texas. This is disturbing. This is -- I'm not sure what we're seeing, but it looks from this vantage point like an officer down. We're not sure. We are not sure. This is my speculation as I look at the screen. Stand by on that. I don't know what I'm seeing. This is the control room trying to tell me. They have a better vantage point, so I'm sorry for the speculation. The police are working on --


KELLY: That's -- I mean, we're all seeing this together. This is not clear.

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