KELLY FILE

Flynn: Trump ready to be commander in chief; Trump Hispanic advisers rethinking their support

Campaign adviser explains on 'The Kelly File' why he trusts the Republican nominee with national security

 

This is a rush transcript from "The Kelly File," September 1, 2016. This copy may not be in its final form and may be updated.

SHANNON BREAM, GUEST HOST:  Breaking tonight, new suggestions.  Donald Trump could be making the biggest gamble of his 2016 campaign.  The question now, will it pay off?  

Welcome to "The Kelly File."  I'm Shannon Bream in for Megyn Kelly.  Next Wednesday, Donald Trump and Hillary Clinton will take part in a discussion that's being billed as the first joint candidate event of the general election.  It has been unsanctioned debate.  

NBC's Matt Lauer will individually question them on national security, military affairs, and veterans' issues in what's being called the commander-in-chief forum.  It comes at a crucial time for Mr. Trump as some top generals have lined up behind Hillary Clinton, new ones today, raising questions about his support among the military ranks.  What's more, unlike the three official debates later this fall, there's no governing body for this forum.  And NBC is free to handle it any way they want.  

Lieutenant General Michael Flynn served as the director of the Defense Intelligence Agency.  He is the author of the bestselling " Field of Fight:
How We Can Win the Global War Against Radical Islam and Its Allies."  
General Flynn will be with Donald Trump when he receives his second intelligence briefing tomorrow.  He would be advising the candidate on national security issues.  

All right.  General --  

GENERAL MICHAEL FLYNN, FORMER DIRECTOR, DEFENSE INTELLIGENCE AGENCY:  Wow!

BREAM:  There's a lot going on.  

FLYNN:  A lot going on.  

BREAM:  A briefing is very important tomorrow obviously.  We talked after you had just come out of that first briefing and you felt that not only did Mr. Trump get all the information that he needed, you felt like he was ready to be the commander-in-chief.  Of course you know there are a lot of critics who will say, he is going against someone who has been a secretary of state, a senator, has been exposed to this kind of information, and has worked with countries around the world.  Why is he the better bet?

FLYNN:  Yes.  I would just say just the ability to understand complex issues, to simplify complex things that are going on around the world.  And Donald Trump has been paying attention to what has been going on around the world for a long, long time.  And I will tell you over the course of this year, it has gotten into more and more detail as he's gotten closer to this point.  So I think that what I saw in the sort of the Q&A in that particular intelligence briefing that he received, it was a real -- I've seen thousands of those, Shannon.  

So, and I was very comfortable with the conversation and the level of discourse, and frankly as I said at that time, that what was presented to him was in stark contrast to the policy decisions that are coming out of this White House.  So tomorrow will be interesting, and there's a set of topics that we've asked for.  So we'll see how that goes.  

BREAM:  Okay.  Now, you were somebody obviously who has served our country.  
I and millions around this country have got great respect for you.  

FLYNN:  Thank you.  

BREAM:  But when we hear Donald Trump say things like, I understand ISIS better than the General's do or I know more about ISIS than the General's do --  

FLYNN:  Uh-hm.

BREAM:  He doesn't know more than you.  

FLYNN:  Yes.  I mean, and again, put it in the context of when it was.  So we were talking about, I think, almost a year later from that particular comment.  Where we are -- and I'm glad that you raised this thing that may or may not happen.  I don't know what the final result is going to be on this commander-in-chief forum next week --  

BREAM:  Something it happened.  

FLYNN:  Yes.  Or who is supporting Hillary Clinton versus who is supporting Donald Trump.  I think that what we will see is we'll see an individual in Donald Trump who is ready to serve today as the commander-in-chief.  I have no -- no problems with Donald Trump stepping up and understanding, again, the complexities.  And I describe them, Shannon, as the perils that the next president is going to face because the mess that has been left on the world stage in places like the South China Sea, North Korea, the Eastern European border of Ukraine where Russia is going through a massive, massive exercise right now, and just the utter disaster in the Middle East and parts of North Africa.  

I mean that's what the next president is being left by the current -- this current administration, and that includes Hillary Clinton spending four years laying this thing on the world stage as a secretary of state.  So it's a mess.  

BREAM:  Who do you think is taking the bigger gamble by showing up at this event next week?  They won't be on stage together, but they're both going to face tough questions.  There will be veterans and other military leaders in the audience asking questions.  Is it a bigger gamble for him or for her?

FLYNN:  I think it's a much bigger gamble for her because she's not been out all that much.  So, you know, and I mean I'm sure she'll be prepared like everybody says she prepares very well.  But I think that what you've seen and what you've heard from Donald Trump over a year and his constant talking about the issues and talking about the world as it is today, the reality that we face and some of the threats that we face, I think actually he will be -- in fact I know, he's going to be much better prepared personally for Donald Trump to be able to address the issues that he's going to be asked about.  

BREAM:  All right, General.  Thank you always for your service.  

FLYNN:  Thank you, Shannon.  

BREAM:  To this country.  Congrats on the book.  And we'd love to hear from you after the briefing tomorrow.  

FLYNN:  Absolutely.  Thank you.

BREAM:  All right.  And as we mentioned, Matt Lauer is going to be the one moderating next week's commander-in-chief forum.  And when that news broke, a number of conservative websites immediately starts questioning Lauer's role.  

Trace Gallagher has that part of the story from our West Coast Newsroom.  
Hey, Trace.  

TRACE GALLAGHER, FOX NEWS CORRESPONDENT:  Hey, Shannon.  During a one hour commander-in-chief forum, Donald Trump and Hillary Clinton as you say won't be on stage together, but instead will appear back-to-back.  And today show host Matt Lauer will moderate.  And that sparking conflict of interest concerns because Lauer once appeared on the Clinton Global Initiative website as a notable member.  The page has since been taken down, and NBC says, it never should have been up in the first place, saying, quoting, "Matt Lauer was not and is not a Clinton Global Initiative member."  

It should also be noted that Fox Business anchor Maria Bartiromo was also listed as a CGI member and she too denies it.  But conservative critics have been pointing to media bias in this campaign ever since NBC News anchor George Stephanopoulos interviewed Hillary Clinton without disclosing that he had donated large sums of money to the Clinton Foundation.  ABC later apologized, and the GOP blocked Stephanopoulos from moderating a Republican presidential primary debate.  

Now with the first of three presidential debates scheduled for September 26th, Donald Trump has said he won't appear if the moderators aren't fair.  
The presidential debate commission, which picks the moderators, says the campaigns really don't get a say, but clearly the commission realizes what a delicate dance this is.  Consider that normally the commission announces moderators in mid-August, and now it won't be until at least next week.  
For the record, a morning consult poll among registered voters has Anderson Cooper and Megyn Kelly topping the list of preferred moderators.  
Presidential debates normally draw between 50,000,070 million viewers.  
Experts say the September 26th debate could draw 100 million -- Shannon.  

BREAM:  Uh-hm.  She gets my vote.  Trace, thank you.  

Joining us now, Howie Kurtz, host of "MediaBuzz" on Fox News.  Mo Elleithee, the founding executive director of Georgetown University's Institute of Politics and Public Service.  He served as traveling press secretary on Hillary Clinton's 2008 campaign.  And Guy Benson, Townhall.com political editor and a FOX News contributor.  Welcome all of you.  

GUY BENSON, TOWNHALL.COM POLITICAL EDITOR:  Hi, Shannon.  

HOWIE KURTZ, HOST, "MEDIABUZZ":  Hello.

BREAM:  All right, Mo, I'll start with you because you saw we just had General Flynn on talking about this commander-in-chief thing that is coming up.  And he said, he thinks that his opinion, it's a bigger risk for Hillary Clinton because she's been part of this administration, which is leaving behind a lot of foreign policy stuff to deal with.  Your take.  

MO ELLEITHEE, GEORGETOWN UNIVERSITY OF POLITICS:  You know it's interesting.  We're talking about veterans and the military, and historically if you look in politics, Republicans tend to do very well with that vote, with the military vote, with the veteran vote.  There seems to be something baked into people's psyche, into voters' psyche that if you have an R next to your name, you might be better on defense or veterans'
issues.  And if you have a D next to your name, maybe on some other issues.  

I think that calculus is scrambling a little bit in this election cycle in part because of some of the things that Donald Trump has said and done.  I think the fact that he went to war, rhetorical war with a Gold Star family and said that he gets his military advice from the shows has really kind of put him in a more tenuous position with a lot of voters who are concerned about national security and veterans' issues, much more so than any Republican nominee in recent history.  

BREAM:  Yes, and today, Guy, he picked up two four-star generals'
endorsements.  That is something we've seen, although Lieutenant General Michael Flynn said here that he's seen Mr. Trump evolve and get up to speed on these issues.  He is convinced he's ready to be commander-in-chief.  But some of those generals out there aren't, Guy.  

BENSON:  Yes, and so each person is going to come out and give their various endorsements, and I think General Flynn made the case for Donald Trump.  And I don't necessarily agree that this is a bigger risk or gamble for either of them.  I think if you want to be president, if you want to be commander-in-chief, you need to be able to go through the gauntlet and answer these types of questions, which brings me to the moderator of this and sort of the controversy over Matt Lauer.  It actually doesn't really bother me that much because I think that at the end of the day, each journalist should be judged on his or her merits and their performance.  

So whereas George Stephanopoulos, I think, is problematic on a few levels, Matt Lauer has the opportunity to show up and do a good job.  The key is transparency and disclosure.  If there's been any connection whatsoever with the Clinton Foundation or Clinton Global Initiative, that should be out in the open for viewers to know ahead of time.  That is crucial.  

BREAM:  All right.  Howie, you are watching this all.  You know the players involved.  You know Matt Lauer, and we've seen him interview Mr. Trump before.  Certainly, you know, Hillary Clinton and interest with the Clinton Foundation now being questioned about his past.  Enlighten us a little bit on that.  

KURTZ:  First of all, I think Matt Lauer has a pretty good track record of being tough on all political guests.  Donald Trump, who's complained to me about his past conflicts with CNN, MSNBC, FOX, "New York Times," Politico, Washington Post, et cetera, has never said  a word about being unhappy with any of Matt Lauer's interviews.  And I think the whole Clinton Foundation thing is a non-controversy, never gave a dime and the foundation -- any journalist who was on the audience or something like that.  

As far as the risk involved, the playing field and the subject might seem to favor a former secretary of state except for this.  Donald Trump has done about 5,000 interviews this year.  He's pretty well honed his skills at dealing with and deflecting these kinds of questions.  If anything, Hillary Clinton, who hasn't held a news conference all year and has given far few interviews might be a little rusty.  

BREAM:  Yes.  About that, Mo, this is sort of a pre-debate debate.  It's not sanctioned.  We don't know exactly how they're going to handle it.  
It's not going to be handled the same way as at official presidential debates.  Is it a bit of a warm-up for Mrs. Clinton who, it's been 271 days.  The last time that she held a press conference was before even a single primary vote had been cast.  That's a long time.  

ELLEITHEE:  Yes, but this isn't -- this isn't a press conference, right?  
This is more -- you're right.  We don't know what the structure is going to be.  And she has done -- she's done other one-on-one interviews both at the national level and the local level.  But having said that, look, you know, I think Howie is right, that Donald Trump has a lot of experience.  He does
-- you know, he'll talk to anyone that will talk to him sometimes, it feels like.  

But at the same time, you know, these are complex issues.  You know, and I think back to what General Flynn said a few minutes ago, that Donald Trump has the ability to simplify complex issues.  Some issues aren't simple.  
Some of these complex international global issues that the commander-in- chief has to deal with aren't simple.  And Hillary Clinton is very well versed in these.  So I think the subject matter is going to provide a pretty stark contrast for voters to be able to choose between.  

BREAM:  All right.  Guy, quick final word to you.  

BENSON:  I think there's an expectations game at play here that's very important, and it goes back to what we saw with the Mexico trip.  Expectations for Trump are so low, when he exceeds them, he benefits.  
Because of Hillary Clinton's pedigree and resume, her expectations, particularly on these issues, will be sky high.  

BREAM:  Well, people were worried about that Mexico trip for him yesterday.  
Pretty strong praise across the board, at least on the first half of the day.  That trip to Mexico.  We'll see how the commander-in-chief forum plays out.  Gentlemen, thank you very much.  

BENSON:  Thank you.  

BREAM:  Good to see you.  

At this moment, a potentially life-threatening storm system quickly approaching Florida's Gulf Coast as that State braces for the arrival of Hurricane Hermine.  I think I'm saying it right but you can correct me, I am not sure.  We will bring you all the breaking developments on that.  

Also ahead, was Donald Trump's immigration speech too aggressive even for those who support him?  Well, our next guests have worked closely with the Republican Party this cycle, and they have had enough, they say, with the Republican nominee.  Then Katrina Pierson is here with the campaign's response.  Stick around.  

(BEGIN VIDEO CLIP)

DONALD TRUMP, R-PRESIDENTIAL NOMINEE:  Under my administration, anyone who illegally crosses the border will be detained until they are removed out of our country and back to the country from which they came.  

(CHEERS AND APPLAUSE)

(END VIDEO CLIP)

(COMMERCIAL BREAK)

BREAM:  Breaking tonight, you are looking at a live radar image of Hurricane Hermine -- I'm told that is the right way to say it -- as it inches closer to Florida's Gulf Coast.  An estimated 500,000 Florida residents are currently under a hurricane warning and bracing for the storm to hit landfall.  If the storm system maintains its strength, it will be the state's first hurricane since 2005.  Governor Rick Scott has declared a state of emergency.  

All right.  Just hours after delivering what many call his toughest immigration speech yet, Donald Trump says he's actually softening his approach.  Last night, a doubling down on the border wall, a promise of no amnesty, and a vow to detain any illegal immigrants apprehended, ending the idea of catch and release.  Watch.  

(BEGIN VIDEO CLIP)

TRUMP:  We will build a great wall along the Southern border.  And Mexico will pay for the wall.  

(CHEERS)

There will be no amnesty.  Our message to the world will be this.  You cannot obtain legal status or become a citizen of the United States by illegally entering our country.  Can't do it.  

(END VIDEO CLIP)

BREAM:  While Trump's speech sounded good to a lot of his supporters, the language was an issue with some of Trump's own Hispanic outreach team.  
They were apparently expecting a different message because reports started circulating just hours after the speech that three from this group step
down.  Here's RNC Chair Reince Priebus earlier tonight.   

BEGIN VIDEO CLIP)

REINCE PRIEBUS, RNC CHAIRMAN:  Well, I think there may have been one person that was on one of the committees that may not be --  

WOLF BLITZER, CNN ANCHOR:  We don't know, Reince, that at least three members of this Hispanic Outreach Advisory Council have told us that they've stepped down.  Did his campaign consult with your office of Hispanic Outreach ahead of the speech?

PRIEBUS:  Listen, they communicate all the time.  I mean, I'm not -- I'm not tracking, Wolf, every communication and e-mail that comes in and out of the building, but we have a good relationship.  It's a solid relationship between both our Hispanic engagement operation and Donald Trump.  

(END VIDEO CLIP)

BREAM:  Joining me now, two men potentially rethinking their Trump support.  Jacob Monty, a former member of Trump's National Hispanic Advisory Council, and Alfonso Aguilar, executive director of the American Principles Project's Latino Partnership.  Gentlemen, we thank you both for coming on tonight.  

ALFONSO AGUILAR, EXECUTIVE DIRECTOR, AMERICAN PRINCIPLES PROJECT'S LATINO
PARTNERSHIP:  Thanks for having me.

JACOB MONTY, FORMER MEMBER, TRUMP'S NATIONAL HISPANIC ADVISORY COUNCIL:  Good to be here.

BREAM:  All right.  Jacob, it sounds like you have made your decision.  
What was it that changed your mind, and will you be able to support Mr.
Trump in any way?

MONTY:  Well, let me say it's a tough decision because I realize that not supporting Donald Trump means that it's more likely that Hillary wins, right?  And Hillary is unacceptable.  Count me as a never Hillary person.  But I can't be part of his Hispanic Advisory Committee, and I can't support him anymore.  

BREAM:  Let me ask you this, did you get a different sense of him because I know a couple of weeks ago there was a meeting.  You all were a part of that.  There were trickles after that saying, hey, listen, we really do think he's softened up.  We think that there is a good way forward here.  There were some who took that the next step and said, oh he's caving in on things like amnesty and that kind of thing.  But was there such a difference in what you heard in that private meeting and what you heard last night?  Is that what did it for you?

MONTY:  Absolutely.  When we met with him on the 20th of August, he was prepared.  He was compassionate.  He was realistic.  He sounded like a businessman.  He acknowledged that the 11 million who are not criminals needed some accommodation, whether it was internal touchback or going back to their home countries quickly.  But none of that was in the speech.  And they built this speech up to be the seminal speech of the campaign on immigration.  And they did not deliver.  It was just populist propaganda taken from the talking points of fair and numbers USA and this aren't
conservative groups --   

BREAM:  All right.  Let me bring in Alfonso on this as well because I know that you said you took a big chance.  You really wanted to support Mr. Trump.  You kind of stuck your neck out here.  You say that you are not somebody who is going to support Hillary Clinton, but where are you today with regard to Mr. Trump?

AGUILAR:  Like Jacob, I've withdrawn my support from Mr. Trump.  I wanted to support him.  I mean Hillary Clinton, for me, is not an alternative.  She will be disastrous for this country.  I'm concerned about the future of the Supreme Court.  I'm concerned about her economy.  I'm concerned about the dignity of the human person, the right to life.  She'll be disastrous in all those areas.  So we wanted to support Mr. Trump, and we were hoping that he would move to the center on immigration.  

And it's not only that he was telling different people privately that he wanted to support some form of path to legal status.  Publicly he was saying that.  He said that he wanted to treat undocumented immigrants in a more compassionate and humane way.  And remember in town hall with Sean Hannity, he did say he was softening, and he did say that those people who were good and hardworking people who were here without documents, that we should find a way to regularize them inside the country.  

Now, we waited.  We hoped that that speech was going to be constructive.  You know, we were sticking our neck out.  Because we were, I mean, just yesterday I was on this network, supporting Mr. Trump, hoping that he was going to support, be constructive on the issue.  And he gave a speech where he proposed a plan that is worse than what he has proposed initially.  It was a nativist plan, the message to undocumented immigrants, to all of them, even if they've been here for 20 years and are good, hardworking people, the message was, you know, you have to self-deport or we will deport you.  

And if you leave, if you want to return, that is not guaranteed.  I mean, at the beginning, when he started his campaign, he was saying that the good people would leave, and they would reenter immediately.  That's something he said continuously.  Even that is off the table right now.  So at this point, I just can't support him.  

BREAM:  All right.  Alfonso and Jacob, we thank you both for sharing your perspective with us.  We appreciate it.  

AGUILAR:  Thank you.  

MONTY:  Thank you.

BREAM:  All right.  Now, here from the Trump campaign, Katrina Pierson, national spokesperson.  I want to give you a chance to respond to what they had to say.  They obviously sound to me wounded.  I mean, they feel -- it sounds like they feel betrayed by what they were privately promised and then what they heard on the stage last night.  The campaign cannot afford to lose the Hispanic support you do have.  So, how do you respond?

KATRINA PIERSON, TRUMP CAMPAIGN NATIONAL SPOKESPERSON:  Well, look, Mr. Trump has these meetings and he listens to everyone, and it's very important for him to have that input.  That doesn't necessarily mean they're making policy in these meetings.  This was Mr. Trump's policy from the very beginning, and it's truly unfortunate in American politics today that we have to remind people that the goal of the United States president is to do what's right for the American people.  And that's exactly what he's doing.  

These policies are laws that are currently in place with the exception of giving ICE the priority to go and identify criminal aliens to deport them from this country, which is a good thing for our country.  And getting back on track.  We are at a stage where this is a Paul Revere moment here again in America.  Danger is coming.  Things are really out of control with immigration.  You have people who are paying upwards of 5, to 10, to $15,000 to come in legally.  It's not fair.  It's not fair to those who are doing things the right way.  

But more importantly, it's not just about people coming into the country illegally.  This is about the cartels, this is about drugs, this is about ISIS, and terrorism.  This is not the 1980s anymore, and the president of the United States has to take into consideration the threats that we face today.  

BREAM:  But what do you think about these folks who say, whether it's 10 million, 20 million, 30 million people, we don't know how many are here illegally.  They talk about families.  They talk about compassion.  They thought they were going to hear more of that.  And for them to now withdraw their support when they had publicly been out there for Mr. Trump and say, this is hurting people that I care about and that look up to me as a Hispanic leader, and now I just have to jump off the wagon.  

PIERSON:  Well, I understand.  That's the softening.  Before it was just everyone as a whole.  Mr. Trump has put out a ten-point plan, and then we get to those who are non-criminally here, how we're going to address that because we have to enforce our current laws.  We're the only country that's not doing that, and we're suffering because of it.  When we look at our debt, when we look at our economic status, when we look at the health care costs, when we look at prison costs, we have to address this problem or we're going to be in serious trouble.  

And Jacob and Alfonso, I know their hearts, I know where they rely.  But they also understand it's not about them.  It's not about me.  It's not about Mr. Trump.  It is about the future of the United States of America, and we have a clear choice in November.  We can continue down this path of more of the same, continuing to allow things to get completely out of control, and essentially kill the economy, or we can vote for someone who is going to have the best interests of the American people as a whole at heart.  

BREAM:  Well, there are real economic and national security interests that are impacted by the situation that we have now.  

PIERSON:  Absolutely.

BREAM:  I think everybody can agree on that.  Katrina, good to see you.  

PIERSON:  Good to be here.

BREAM:  Thanks for coming on.

PIERSON:  Thank you.

BREAM:  All right.  Big news breaking in California tonight where the Governor may sign a bill that critics call one of the biggest threats to the First Amendment in years.  

Dana Loesch is here on why this thing has whistleblowers in a sweat.  

Plus, we'll investigate reports that the fed is about to take a bigger role in overseeing state elections.  Should they be?  That's next.   

(COMMERCIAL BREAK)

BREAM: With just 68 days to go until the election, there are new reports suggesting that the Department Of Homeland Security could take a big step toward granting itself greater authority over all of the country's voting systems. And that change could take effect before November 8th. We'll talk in moments with two of the legal experts worried about this development.
But first Trace Gallagher has more on why this may be happening, Trace.

GALLAGHER: Hey Shannon. What the Department of Homeland Security is suggesting is that voting is as important to our country's long-term security and prosperity as having a functioning electric grid, telecom networks and water treatment plants. So now, in the wake of cyber attacks on the Democratic National Committee and two state election databases, Homeland Security secretary Jeh Johnson is considering asking that the election be declared a quote "critical infrastructure.

In other words, DHS would consider measures to stop voting machines around the country from being hacked on Election Day. But we don't have just one federal election system. Instead, there are some 9,000 jurisdictions across America that tally votes. And as more voting machines become automated, the more vulnerable we are to being hacked, possibly changing the outcome of an election. Now, the White House has acknowledged the critical infrastructure designation for voting is getting a very hard look. Listen.

(BEGIN VIDEO CLIP

JOSH EARNEST, WHITE HOUSE SPOKESMAN: That's something that's being discussed by senior members of the president's national security team. We certainly will continue to work in coordination with state and local officials.

(END VIDEO CLIP)

GALLAGHER: Just consider that during a 2012 pilot program aimed at testing online voting in Washington, researchers from the university of Michigan were able to hack into the government website so that every time a vote was cast, the Michigan fight song would play. Experts and some politicians say there is still a very big difference between the government saying it will secure online voting and actually doing it, Shannon.

BREAM: All right, Trace. Thank you very much. My next two guests have some concerns about the federal government taking a bigger role in what is supposed to be an election process run by the states. I'm joined now by Ilya Shapiro, senior fellow in constitutional studies at the Cato Institute, John Yoo, former DOJ attorney and professor of law at the University of California, Berkeley. Welcome to you both.

ILYA SHAPIRO, SENIOR FELLOW IN CONSTITUTIONAL STUDIES CATO INSTITUTE: Good to be on.

JOHN YOO, FORMER DOJ ATTORNEY: Thanks.

BREAM: Right, Ilya, why should we care if the feds want to get more involved? They say they want to protect us. They want to make sure everything's OK. What are your concerns?

SHAPIRO: Well look, there is no critical infrastructure clause in the constitution and anything the federal government does has to be based on constitutional authority. If the states want some sort of federal expertise or federal dollars for something, they might want to work that out. But the federal government, the Homeland Security Department or any other part of it can't simply come in and say, for your own good or for our own good we're going to take over this system.

BREAM: Yeah, and professor, if I remember, back to law school, and I might have done some cheating and studying today, but Article 1, Section 4 as I recall, gives the states to control over how elections are handled, and there are a lot of people who worry about the concentration of power at the federal level and they're concerned about what they see maybe another power grab here.

YOO: Yes, you're perfectly right, and you should have gotten an A in constitutional law because that's the exact provision at stake. The government may be right if it came to a critical infrastructure of electrical grids or communication networks. But on the issue of elections, there's a specific constitutional provision, Article 1, Section 4, that says the time, places and manners of elections are in the hands of the state legislatures.

So, in this one area, the federal government cannot act unless Congress passes an actual law or the states request help. So, this is not like all those other critical networks that might be worth protecting because the states have a right guaranteed in the constitution to protect their control of the electoral system.

BREAM: Well, Ilya, you know that -- we've seen plenty of exercises of executive power by this particular administration. You and I have talked and watched them be litigated many times at the Supreme Court. They're not shy about going around Congress when they don't think Congress is getting on board with what they want to do.

SHAPIRO: Right. Again, it's when Congress won't act, we will -- somehow trying to arrogate to itself more and more power. And John, while you're fixing Shannon's transcript from law school, I hope you can do mine as well because look, this is not just simple, technical, academic-y stuff. The reason that -- there's good reason to have disbursed power over these sorts of things, if we have these 9,000 different kinds of election tallying system, well then hackers -- it's that much harder for them to control the election.

If instead they can just hack into the back door of DHS, as has been done with DHS personnel files and take over the whole election, that's much more problematic than whatever perceived issue DHS has now the government is acting unconstitutionally potentially to intervene on.

BREAM: And professor, I'll give you the final word here on how you think this shakes out.

YOO: Well, I think or hope that the federal government, although I think it's a good idea to stop the Michigan fight song from ever being played.

BREAM: Agreed.

YOO: I think we can all agree on that no matter what law school we went to.
But the important thing is that I agree with Ilya. The nature -- it's not just the technology, but the beauty of our constitution is creating a decentralized federalist government, and that means it's harder to attack for a hacker. It means our system is more resilient, but that's because it's hard wired into our constitution by our framers over 200 years ago.

BREAM: All right gentlemen, very informative, and I would argue entertaining. Great to see you both.

SHAPIRO: Thanks, Shannon.

BREAM: Breaking tonight, for the first time in more than a decade, a hurricane is taking aim directly at the state of Florida. We've got the very latest on its track and when it is expected to make landfall.

Plus reports that the Obama administration allowed Iran's secret exemptions in that Iran deal just as a way to meet their timeline. This all comes as a U.S. commander claims that Iran has been accelerating its harassment of U.S. sailors in the Persian Gulf. Marc Thiessen and Julie Roginsky are here. Stick around.

(COMMERCIAL BREAK)

BREAM: Breaking tonight, we're keeping close tabs on a hurricane that is now bearing down on the Florida Panhandle. The center of hurricane Hermine is expected to make landfall tonight or early tomorrow morning. When it does, it will be the first hurricane to directly hit the state since 2005.
Right now winds have increased to nearly 80 miles an hour with higher gusts.

The National Hurricane Center is warning it could strengthen even before making landfall, with millions of people across the southeast potentially in its path. Florida's governor is telling folks to stay away from the coast. They say this is a life-threatening situation.

We've got new details developing tonight from a report that broke earlier today suggesting the administration secretly agreed to cut Iran some slack following the nuclear deal. Chief Washington correspondent James Rosen leads our investigation.

JAMES ROSEN, FOX NEWS CHIEF WASHINGTON CORRESPONDENT: Shannon, good evening. David Albright, the renowned weapons inspector and nuclear analyst, head of the Institute for Science and International Security has issued a report first disclosed by Reuters charging that the joint commission established to oversee implementation of the Iran nuclear deal, a group comprised of Iran, the U.S., and the five other nations that negotiated the deal has been secretly weakening language relating to among other things Iran's storage limits on heavy water which can be used to develop weapons grade plutonium and caps on the regime's stockpile of low- enriched uranium or LEU.

(BEGIN VIDEO CLIP)

There are other stocks of low-enriched uranium that remain in Iran. It's in a uranium conversion plant. Now, the question is from Iran, can we exempt that too. And so, the joint commission formed a technical working group in July and one of their agenda items is whether this material will be exempt.

(END VIDEO CLIP)

ROSEN: The State Department pushed back against the Albright report telling reporters Iran's requirements under the nuclear deal have not been changed.
The goal posts have not been moved.

(BEGIN VIDEO CLIP)

JOHN KIRBY, STATE DEPARTMENT SPOKESPERSON: There has been no loosening of Iran's commitment, and there have been no exceptions given that would allow them to exceed the limits, whether it's the limits of LEU or the limits of heavy water that would allow them to have a usable amount of material.

(END VIDEO CLIP)

ROSEN: John Kirby kept repeating that certain phrasing, namely that Iran isn't being allowed to produce any additional nuclear material that could be used for a breakout dash for a nuclear weapon. Some in the briefing thought he was leaving a little bit of wiggle room there, namely that this joint commission that issues this secret guidance on how to implement the deal may have given some exemptions that allow Iran to produce more nuclear material that isn't immediately usable for such a breakout dash toward a nuclear weapon, Shannon.

BREAM: James Rosen at the State Department, thank you. Joining us now Marc Thiessen, he is a Fox News contributor and former chief speechwriter for President George W. Bush along with Julie Roginsky, she is a Democratic analyst and Fox News contributor. Great to see you both.

JULIE ROGINSKY, FOX NEWS CONTRIBUTOR: Great to see you.

MARC THIESSEN, FOX NEWS CONTRIBUTOR: Good to see you Shannon.

BREAM: Julie, how come it is the more that we learn about this Iran deal, I mean the sketchier it sounds to be? These are things that are coming out or trickling out. It's one thing after another, and we have lawmakers on the hill saying they never even got the full briefing on exactly what was in it. We're getting new stuff every day.

ROGINSKY: You know, those of us who supported this deal did it with a tremendous amount of misgiving, so it was a hope and understanding that this would prevent Iran from going nuclear in the next decade. If there are exemptions, not exceptions -- I want to be very precise about what Admiral Kirby said, but exemptions being granted to Iran after the deal were sealed, that to me is a very troubling development because it says that we continue to negotiate with Iran when the negotiations should have been over by now.

And so for those of us who detest the Iranian regime understands this was never going to alter their behavior in any way outside of the potential ability to go nuclear in the next decade. It continues to be troubling because really, once you have this deal, the room for negotiation, especially on the Iranian part, should be over.

BREAM: Well, and Mark, there were a number of Democrats who stood up on the hill and said publicly that they would not support this. They were vocal and had questions about exactly what they were getting into as well, and now they're speaking out. This isn't just a partisan issue for people. In the meantime, we've given them $1.7 billion to use as they see fit, and they're now harassing our military personnel. What gives?

THIESSEN: Absolutely. I mean and I feel for Julie and some of the other Democrats who came out and defended this because there's just more and more trickling out. I think what was happening here, Shannon, is that the nuclear deal was in danger of unraveling entirely because what was happening was on the day of implementation, January 16th, Iran was going to be out of compliance with the deal.

They had not given up their low-enriched uranium and some of the other things in this side agreement. And if they were out of compliance, then they wouldn't get the sanctions relief. And if they didn't get the sanctions relief, Iran was threatening to pull out of the deal entirely.
And then on top of that, on January 16th, that was the day that the secret plane with $400 million of ransom money in exchange for American hostages was flying.

BREAM: Not a ransom. Not calling it a ransom.

THIESSEN: So all of these -- it was a ransom. And so all of these were happening on January 16th, and if they were not in compliance on that day, the whole thing could fall apart. So what the Obama administration did was they blinked. They allowed the Iranians to get some exemptions from this so that the thing didn't fall apart on day one because they were more concerned with preserving the perception of Iranian compliance than enforcing actual Iranian compliance.

BREAM: Julie, did we get played?

ROGINSKY: You know, if the scenario Marc just laid out -- there's a big if attached to it. If the scenario is correct then yeah, I mean, not that we got played, but we did blink as Marc said. You know, again, I want to be clear. There is no evidence that they're confirming that there are exemptions. But if there are exemptions, then Marc is absolutely right.

We did get played. And again, I have to keep saying the only reason -- the only reason to have entered into any kind of negotiation, especially with the release of so many billions of dollars to the Iranians, was in order to prevent them from going nuclear, the very tenet of that proposal is now in doubt then it becomes a problem next (ph).

BREAM: And they're not playing nice. Why are they harassing if this is such a good deal and it helped our relationship and all goodwill in the world, why are they harassing our military personnel?

ROGINSKY: Because this deal was never part of changing their behavior globally. This was, again, a very narrow pathway to preventing them from going nuclear. Iran is a rogue regime. It always has been since 1979. While this regime is in place, it always will be. They will continue to harass us probably for the same reasons domestically that some people here oppose any negotiations with Iran. They have their own hard liners and they need to please who think the Americans are the great Satan, as they call us, and they have to harass us in order to placate their domestic politics.
Unfortunately that's the regime with which we have to do business with. We can't always do business with nice regimes.

BREAM: Marc, do we have to do business -- final word to you -- with these guys?

THIESSEN: Well, you know, if we're going to do business, let's do it transparently. I mean, this is part of a pattern.

ROGINSKY: agree.

THIESSEN: First, a year ago we learned that there was a secret deal to let Iran inspect itself. Then we had a secret plane going with $400 million of ransom money and now we have this secret deal alleged by a former U.N.
weapons inspector, who is an independent person who didn't oppose the agreement. This is coming from an independent source saying that they evaded the restrictions in the deal. If this is such a great deal, why is everything so secret? Why can't the Obama administration be transparent with us about what's actually happening?

BREAM: All right. Marc and Julie, I felt some agreement from you tonight, and we're going to end on that good note. Thank you, both.

ROGINSKY: Have a great night.

THIESSEN: Thank you.

BREAM: You too. All right, we also have a big story from California tonight where lawmakers there are trying to outlaw undercover sting videos like the ones that left Planned Parenthood in a lot of hot water last year. Dana Loesch is here on why this is a big concern for a lot more than just pro- life folks, next.

(COMMERCIAL BREAK)

BREAM: New developments tonight on a California bill poised to outlaw the type of sting operation that made news last summer about some of Planned Parenthood's practices. If signed by California's governor, this new bill would make it illegal to go undercover and videotape Planned Parenthood or any other health care worker. Furthermore, it makes it illegal to distribute any recordings, meaning anybody with an expose cannot approach the press. Critics are already calling the bill dangerous for whistle- blowers especially with revelations, you'll remember, like this one.

(VIDEO PLAYING)

BREAM: Joining me now is Dana Loesch, host of "Dana" on TheBlaze TV. Great to have you with us tonight.

DANA LOESCH, THEBLAZE TV "DANA" SHOW HOST: Thanks, Shannon.

BREAM: This seems like a pretty brazen attack on the first amendment. There are journalists who have gone undercover and won scores of awards for doing the same thing, but not when it was about abortion. Double standard?

LOESCH: Now you're absolutely right. No, it is a double standard. Shannon, you are absolutely right. And the ACLU agrees with us on this. This story is so bizarre that it has made friends of the ACLU and people like me and the "L.A. Times." So that's when you know something's up, like the "L.A.
Times" came out against this. The ACLU did too because this would be one thing. Shannon, this would be one thing if there were not already existing laws that protected patient privacy. But this isn't an issue about patient privacy. This is Planned Parenthood, who has been busted (inaudible) times in the past several years, talking about how to -- discussing with pimps how to evade the system.

They didn't report child abuse, and they actually got sued in Colorado because they didn't report child abuse involving a 13-year-old. There was another case in which they were videotaped hiding sexual abuse with two 13- year-olds, one of which they were telling to go ahead and get an abortion.
They didn't report that and they refused to follow that mandatory reporting. There are so many instances, not including David Daleiden's medical expose or journalistic expose on what they were doing with these body parts.

So they keep telling on themselves. And so that's the entire reason, and it's ridiculous because if Planned Parenthood was a private organization, then they might have a better case of arguing for, oh, we don't want people to record us. But this Shannon, this is an organization that receives half a billion in taxpayer dollars so they need to be held accountable. Or if they don't like to be held accountable, they can just not cash those checks.

BREAM: Yeah, $500 million as you know of our taxpayer money that we'd like some transparency there. By the way, a penalty here could include on the first violation, a fine and a jail term of one year or both, and potentially a greater fine if they get caught doing this more than once -- the recordings, I mean multiple years in jail for doing something that other journalists have been celebrated for.

LOESCH: Exactly. I mean they spent so much time last year trying to tell everyone that they weren't doing anything shady. Well, this isn't really like the best way to make your case. If they weren't doing anything shady, Shannon, they wouldn't have anything to worry about. This has nothing to do again with patient privacy. When you are an entity that receives as much or any taxpayer dollars, when you are getting subsidized by the government more so than you're receiving private donations, you will be held accountable and you should be.

BREAM: Yeah, there have to be -- there have to be answers. All right, Dana, great to see you tonight. Thank you for joining us.

LOESCH: Thank you Shannon.

BREAM: We will be right back with more "Kelly File." Stick around.

(COMMERCIAL BREAK)

BREAM: We are keeping a live look on hurricane Hermine as it closes in on the Florida Gulf Coast there in the panhandle. The governor has declared a state of emergency and folks are told to stay away from the coast. We'll keep an eye on it. Thanks for watching. I'm Shannon Bream. This is "The Kelly File." See you tomorrow.

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