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FBI release of Clinton documents raises concerns of intentionally obstructing justice

This is a rush transcript from "The Kelly File," September 6, 2016. This copy may not be in its final form and may be updated.

MEGYN KELLY, FOX NEWS HOST: Breaking tonight, growing suggestions that Hillary Clinton and her staff may have intentionally obstructed justice, destroying evidence in the middle of an investigation.

Welcome to THE KELLY FILE, everyone. I'm Megyn Kelly. House Oversight Chairman Jason Chaffetz sent his letter to the District Attorney for Washington, D.C. today calling for a new probe in the conduct of both Mrs. Clinton and her staffers. Chaffetz says that after reviewing documents released on Friday by FBI Director James Comey, he believes there may be evidence of, quote, "Obstruction of justice and destruction of evidence by Secretary Clinton and her employees and contractors." When asked about it earlier today, Clinton not only said that she's innocent, she also suggested this is simply another GOP conspiracy.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: Do you have any concerns that e-mails were deleted after they were already supposed to be preserved, and did you ask for them to be deleted?

HILLARY CLINTON, D, PRESIDENTIAL NOMINEE: No, of course not. I have no concern on either count. None. And neither do the FBI.

(END VIDEO CLIP)

KELLY: By the way, U.S. attorney, not district attorney. In a moment, we will be joined by Judge Andrew Napolitano who has reviewed some of the evidence and has a really actually interesting intake, outtake -- well, take.

(LAUGHTER)

And senior political analyst Brit Hume who's here on the fallout. But first we go to Trace Gallagher who is live at our breaking news desk. Hey, Trace.

TRACE GALLAGHER, FOX NEWS CORRESPONDENT: Hey, Megyn. In calling for the obstruction of justice investigation, Utah GOP Congressman Jason Chaffetz is citing evidence that focuses mainly on a three and a half month period from December of 2014 to March of 2015. December of 2014, you'll recall, is when Hillary Clinton and her team turned over some 55,000 work-related e-mails to the State Department. That same month, according to FBI files, top Hillary Clinton aide Cheryl Mills, who is also a lawyer, apparently instructs unnamed employees of Platt River Networks, that's the company that maintained Clinton's server, to delete the old archives and make sure new e-mails are only saved for 60 days.

But in March of 2015 when "The New York Times" broke the story of Hillary Clinton's private e-mail server, the Benghazi Select Committee issued a new flurry of subpoenas to obtain the e-mails, and the FBI files show that a Platte River employee had a, quote, "Oh blank moment," realizing he didn't wipe the server clean back in December like he was supposed to. Days later, Hillary Clinton's aides and lawyers have a conference call with Platte River employees, and House Republicans say, despite the e-mails being under subpoena, a new round of deleting begins, including the use of a computer shredding program.

In a letter in the U.S. attorney for D.C., Chaffetz writes, quoting, "The department should investigate and determine whether Secretary Clinton or her employees and contractors violated statutes that prohibit destruction of records and concealment or cover-up of evidence material to a Congressional investigation."

Here's more of Hillary Clinton trying to knock this thing down. Watch.

(BEGIN VIDEO CLIP)

CLINTON: The FBI resolved all of this. Their report answered all the questions. The findings included debunking the latest conspiracy theories.

(END VIDEO CLIP)

GALLAGHER: Congressman Chaffetz is also calling in the FBI to release public testimony of Clinton aides and employees of Platte River -- Megyn.

KELLY: Trace, thank you.

Joining me now, FOX News senior judicial analyst, Judge Andrew Napolitano, who reviewed these FBI documents, and he joins us now with what he found dump right before Labor Day. She's done this four times now. She is actually, you know, she or her team.

JUDGE ANDREW NAPOLITANO, FOX NEWS SENIOR JUDICIAL ANALYST: Right.

KELLY: Somehow they always find a way before Memorial Day, before July 4th, before Labor Day, and the other one was New Year's Eve, right?

NAPOLITANO: Right.

KELLY: Look, look, there it is. Purely coincidental. But what may have happened here is important. You don't get a subpoena and then start destroying documents.

NAPOLITANO: Well --

KELLY: That's not okay.

NAPOLITANO: Okay. So that is what happened here. Congressman Chaffetz is correct in his timeline. The subpoena was issued, and then the documents were destroyed. Congressman Gowdy is correct. We're talking about two different committees. Congressman Chaffetz runs the House Oversight Committee, Congressman Gowdy, the House Benghazi Committee. Both put on noticed Secretary Clinton. In fact, Congressman Gowdy's committee put Secretary Clinton on notice while she was still security of state --

KELLY: Wait a minute. You have your own private server, and you didn't give us any of the documents from it in response to our earlier subpoenas, well, we want that.

NAPOLITANO: And now --

KELLY: And you better not destroy anything between now and the time we get it, and she did.

NAPOLITANO: Correct. Now we found out that it was destroyed. Now, here's the very, very troubling news. We learned this on Friday. We learned this from the FBI. The FBI knew that servers were wiped clean, that Blackberries were smashed and destroyed, and that a laptop was lost in the U.S. mail. The FBI ought to have pursued Mrs. Clinton and the people around her for obstruction of justice, and it did not do so.

That is exceptionally distressing. The case against her for failure to secure state secrets is overwhelming. Now the case against somebody -- we don't know who -- for obstruction of justice is overwhelming, and, Megyn, the FBI has done nothing. Someone, somewhere -- it must be the White House -- has restrained the FBI from doing its job.

KELLY: You look at the evidence, right, before this Platte River Networks. They were the ones who deleted her e-mail archives, pursuant to her order is how it looks. This is the guy who had the oh, blank moment.

NAPOLITANO: Right.

KELLY: He had been told to do before.

NAPOLITANO: Right.

KELLY: He claims, I forgot and then I saw the subpoena and suddenly I remembered I was supposed to delete everything.

NAPOLITANO: Right. Right.

KELLY: I mean, of interest.

NAPOLITANO: I better take a sledgehammer to a couple of Blackberries.

KELLY: Right. But so, here's what happened before he did the deleting, after the subpoena. He had a conference call with Secretary Clinton's attorneys just days before the deletions. Created a work ticket on or about the day of the deletion. Used BleachBit, a software program designed to prevent recovery of evidence. Manual deletion of backups and on and on it goes. And the question is, was this intentional, and what were they hiding, if anything?

NAPOLITANO: How could it not have been intentional? With the regular, consistent, systematic destruction of evidence. And I'm sorry to tell you, her lawyers may have been involved in this, which adds another entirely different level of culpability here.  

KELLY: What if they say none of this stuff was responsive, and therefore, we didn't need to keep it? It was all yoga, you know, like who cares? We could delete that stuff.

NAPOLITANO: She swore under oath to a federal judge, and she swore under oath to two Congressional committees. She returned all of her work-related emails. The FBI found 17,800 work-related emails that she failed to return. Not all of them were readable because some of them had been destroyed. You tell me that's not a prima facie case of obstruction of justice and the FBI has done nothing about it. And I don't know how far Congressman Chaffetz is going to go. Election Day is 63 days from now. I don't know that he could get to first base between now and Election Day.

KELLY: You say the DOJ actually, I mean, the FBI actually violated policy in that interview. You believe they violated their own policy. How?

NAPOLITANO: Yes. Her lawyers told the DOJ she will not show up for an interview if you record it. It is policy of the DOJ to record every interview. There is no record of what she said other than the summaries written by the FBI agents who were in the room and who listened to her. In this digital age, there is no recording. There's a verbatim recording of every single other one of the witnesses interrogated in this case except for Mrs. Clinton.

KELLY: Wow.

NAPOLITANO: How far can this go?

KELLY: I'm sure the average Joe watching at home right now could get such an exception as well. I'm sure.

NAPOLITANO: Right.  

KELLY: If they got in trouble, there would be no problem. With all the stories that she has told that have turned out not just to add up and then this. Listen, maybe there will be an explanation other than the FBI has cleared me, and you're all a bunch of idiots.

NAPOLITANO: Right.

KELLY: We'll wait for that. Judge, good to see you.

NAPOLITANO: Good to be with you.

KELLY: Well, she didn't really say that second part. So this story is the latest in a series of damaging revelations for Mrs. Clinton. Covering both her handling of classified information and questions about the Clinton Foundation. Along with those revelations we've seen a gradual but steady erosion in her poll numbers.

Brit Hume is with us now on that. He's the FOX News senior political analyst and the newly named host of "ON THE RECORD." Brit, it's great to see you again in so many different capacities.

BRIT HUME, FOX NEWS SENIOR POLITICAL ANALYST: Well, thanks, Megyn. It's kind of you. I'm going to be there through the election but I'm excited about it.

KELLY: And then back to God, golf, and grandchildren, which I know is the Brit Hume retirement plan.

All right. So, let's talk about Hillary Clinton and her -- I mean she's lost a ten-point lead. The news for her day after day after day, you know, it's not devastating on any one day, but it seems like we're getting to the death by a thousand cuts feel.

HUME: Well, Megyn, it seems to me that what she needs to do is try to overcome this severe problem she's had with people not trusting her. And, you know, I don't think she can eliminate the problem, but she might be able to gain some ground against the problem. And as long as these questions and revelations persist, it will be very difficult for her to do that. So that's the problem for her, that she's being held down by these questions. And, you know, it could reach the point where people just decide, you know, I just can't vote for this woman.

KELLY: Mm-hmm.

HUME: And at which point they look at Donald Trump and say, can I vote for him? And you could kind of posit a scenario in which, you know, he carries on the rest of this campaign in kind of the way he has, with, you know, making speeches and doing things that people didn't think he'd do like the trip to Mexico and so on. And he might gain enough ground to where, you know, he wins the election.

KELLY: Mm-hmm.

HUME: It's within the realm of possibility as we look out from this day.

KELLY: Now, so how big an impact do you think things like this e-mail scandal have had on her because it doesn't seem like other than the e-mail scandal and the Clinton Foundation, you know, Trump is going after her on that many issues. But those issues refuse to die. Every day we get something new on something else she's told us that's not true, something else she's done that is potentially problematic.

HUME: Well, that's right. And whatever he says about it is augmented by the revelations. So, you know, people -- you know, they hear him talking about it, and they may or may not, you know, respond because of him. But when what he is saying is buttressed, reinforced by revelations of the kind that we've had just in recent days, you know, they keep finding more of these e-mails. She was supposed to have turned them all over. They keep finding out there were more devices than she claimed that she had. All these things while none of them by themselves is a death blow, is, you know, is the death by a thousand cuts. And the cuts keep coming.

KELLY: Mm-hmm. What do you make of this 13 Blackberry devices, Brit, which the aide is, you know, killing with a hammer? And all in the wake of, I just wanted to carry the one device. That was her whole explanation for not doing it the way she was supposed to.

HUME: Well, what we're hearing from her supporters is that she was only carrying one of them at a time, and there's a certain truth to that. I mean, after all, I have an iPhone, and I have an iPad, and I don't use them usually simultaneously. And over time these things break, or you get new models, and so it's possible that, you know, my e-mail has been used on several different devices. But 13?

KELLY: Right.

HUME: That seems like an awful lot against a claim that she was doing one at a time.

KELLY: Right.

HUME: So I think, you know, people look at that, and it just doesn't sound right to them. And it makes people just think -- look at this woman and say, can she tell the truth?

KELLY: So, what is she going to do now? Is she going to come out of the, you know, witness protection program and start actually giving interviews and speaking to reporters? You know, on the back of the plane, how are you feeling notwithstanding? She hasn't been hit with a lot of tough questions lately.

HUME: Well, she's got a few, she took a few, and she didn't seem to have a lot of trouble with them, which raises the question, I think, of whether, you know, she really has anything to fear from a full-blown news conference.

KELLY: Mm-hmm.

HUME: But I've only known her to hold a few, and I was actually present in the room at the one she held way back in the '90s on whitewater, which was like two hours she took questions. It wasn't a terribly convincing performance. I remember it well. But it got her over the hump.

KELLY: Mm-hmm.

HUME: And, you know, kind of put the matter to rest at least. So, I mean, she probably is going to have to do one of these sometime, and we'll see. I don't think the public cares a whit, by the way, whether she holds one or not. But, you know, it does add, I think, to reporters' suspicions about her, and reporters are not that unfavorably disposed to her. If she comes out and, you know, has a few news conferences and talks to them, they like that better.

KELLY: Uh-hm. If she would try communicating a little, you know, she's been waiting for Donald Trump to lose, and he has been. But he's having a good time right now in terms of the poll swing, and she's going to have to think about what that means for her. We're going to pick up that with Larry Sabato in just a minute. Brit, great to see you.

HUME: Thanks, Megyn.

KELLY: Well, Hillary isn't the only one under fire after this document dump. With House Speaker Paul Ryan now suggesting the FBI appears to be acting as an arm of Mrs. Clinton's presidential campaign. Former FBI assistant Director James Kallstrom has some thoughts on that. He is right after this break.

Plus, Stirewalt and Kurtz are here with new details on the presidential debates and the new controversy already making the rounds. Stay tuned.

(BEGIN VIDEO CLIP)

DONALD TRUMP, R, PRESIDENTIAL NOMINEE: I look forward to the debates. I mean, I think it's an important element of what we're doing. I think you have an obligation to do the debates.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

KELLY: Breaking tonight, Hillary Clinton isn't the only one taking heat after the FBI's holiday weekend document dump. Here's House Speaker Paul Ryan earlier today.

(BEGIN VIDEO CLIP)

PAUL RYAN, R,, SPEAKER OF THE HOUSE: I can't believe that they would do what is such a patently political move. It makes them look like political operators versus law enforcement officers.

(END VIDEO CLIP)

KELLY: Over on another cable channel, political analyst Mark Halperin wasn't much kinder.

(BEGIN VIDEO CLIP)

MARK HALPERIN, MSNBC SENIOR POLITICAL ANALYST: To release this on a Friday as if he's an arm of the Clinton campaign, I'm just stunned because there's a lot of information here that's of great public interest. And if you really care about transparency, you would say to yourself is the best time to release this to get a full public hearing on Friday before Labor Day? No.

(END VIDEO CLIP)

KELLY: Joining me now, James Kallstrom, former assistant director-in- charge of the FBI.

Jim, good to see you. So, what do you make of the FBI's decisions here and the protocol they used?

JAMES KALLSTROM, FORMER FBI ASSISTANT DIRECTOR: Hi, Megyn. I was shocked and furious and dismayed that -- not really dismayed, I guess, but furious and shocked at the same time because when does the FBI director, you know, pull the old political trick of waiting until a three-day holiday weekend and then releasing information?

KELLY: What do they care?

KALLSTROM: I'm shocked that he did that.

KELLY: What about -- we talked with the judge a moment ago about the protocols the FBI use the. They've heavily redacted there, you know, what they've given us, and it's not a transcript of the sit-down with her, but it's notes from it. Did you see anything? Did they deviate from policy in the interview to the best that you can tell?

KALLSTROM: Megyn, why wasn't it recorded? You know, why wasn't there a transcript made? Why weren't the simple questions asked of her? Why wasn't she put under oath? You know, why didn't we know how many times she said, I don't remember or I don't know or I can't answer that or I take the Fifth Amendment.

KELLY: Mm-hmm.

KALLSTROM: Or whatever. Why don't we know that? This lady -- this isn't a normal interview.

KELLY: Stand by.

(AUDIO GAP)

We're going to get it resolved. We were taking some hits because of the weather there, but we're going to try to work it out anyway. We're not giving up on Jim. Hold on. Let me see if we still have him. Do we have him? They're working on it. There he is. Let's give it a try.

Jim, what do you think the answer to that is? Why do you think the FBI didn't do all those things?

KALLSTROM: Because the FBI director is playing politics. I mean, you know, the FBI director doesn't do things like that. The FBI director does not take the most famous, the best law enforcement agency in the world and politicize it by letting things out, you know, Labor Day weekend. I mean, I just think that's the worst thing he could do. He should be absolutely ashamed of himself. And this interview, you know, this interview, why wasn't it recorded? Why wasn't there a transcript? Why wasn't she under oath? Who was in the room? Was justice in the room? Who was in charge of the interview?

KELLY: Have you gotten any reaction from the FBI agents that you still talk to, Jim, about this?

KALLSTROM: Megyn, I've had contact with 50 different people, both inside and outside, retired agents that are basically disgusted. And, you know, it's part of the last straw. By the way, was she asked to be polygraphed? I mean these are standard things that we do in these investigations. You know, and then the Comey press conference. He gives this press conference, and then he's asked the questions, took a few questions later, and he's asked what about the interview? He says, well I haven't visited the interview yet. I haven't read the interview yet? What? Was this a preconceived interview? I mean obviously it was. It didn't have any impact. I mean it's just nuts. It doesn't -- it doesn't --

KELLY: It doesn't add up. Jim, thank you. Thanks for bearing with us. Both to Jim and to you, audience. We wanted to get him on so we deal with Mother Nature as we can with these satellite dishes.

Joining me now with some reaction, DNC Committee member and Hillary Clinton supporter, Robert Zimmerman. What do you make of that, Robert? First of all, how about that weekend document -- she did it three times and then the FBI helps her out and does her a solid by doing the fourth document dump on the Friday of Labor Day weekend. Come on.

ROBERT ZIMMERMAN, DEMOCRATIC STRATEGIST: First, Megyn, let's be clear, the document dump on Friday was a great tactic in the 1990s. But then I suggest my Republican friends take off their Walkmans, put the pager in their fanny pack and bring out their smartphone.

KELLY: Oh!

ZIMMERMAN: Okay. Let's get real about what we're living with in 2016.

KELLY: What do you mean?

ZIMMERMAN: What I mean is, under technology that we live in today, these stories don't go away on Saturday morning.

KELLY: It's not about the technology. It's about living our lives. And we're at the beach and wear not thinking of Hillary Clinton. That's the reason it gets released on those days.  

ZIMMERMAN: And we're still talking about it today on Tuesday. The reality is because of the internet --

KELLY: Well, we are.

ZIMMERMAN: Which is maybe a new concept for some of my Republican friends the way they do social media. But because of Twitter, because we have iPads and smartphones, these stories don't go away.

KELLY: Okay. Why --

ZIMMERMAN: It's such an outdated type of thinking.

KELLY: Why did this group, the ones maintaining the server -- hold on a second -- Platte River. Why did they delete her e-mail archives despite knowing that they were subject to preservation orders?

ZIMMERMAN: Let's be clear. The one thing I have in common with my Republican friends is that none of us have conducted an investigation. The FBI did. They're a full team --

KELLY: That's where we got this information.

ZIMMERMAN: And my point to you is, the FBI determined after a year's worth of evaluation and investigation, they evaluated the fact that there is no reason to proceed further with any other legal activities. They made their evaluation about it. And here's the point that's most important and I've heard this say on the air.

KELLY: You're not denying that it was improper. You're just relying on the FBI not indicting her.

ZIMMERMAN: I'm kind of old-fashioned that way. I leave it to the professionals to do the investigations versus the political pundits.

KELLY: But the American public isn't necessarily looking to indict her. They're wondering whether they should elect her.

ZIMMERMAN: That's why.

KELLY: So, they have a different bar. And they want to know if she did something while maybe not illegal, was inappropriate, like telling the server people to delete all the e-mails while she was under subpoena.

ZIMMERMAN: Well, let's be clear by the way. I heard on this show, I've heard this on many networks about the country, the argument that, well, she deliberately hid or deleted 15,000 e-mails or the FBI found 15,000 e-mails. The FBI director pointed out many of those found e-mails were, in fact, could be duplicates, personal, and they were not deliberately deleted. He found no evidence of any effort to deliberately delete the e-mails.

KELLY: Well, they were deliberately deleted, 30,000 of them. They can only retrieve about 15,000 --

ZIMMERMAN: Wait a second! They were deleted --

KELLY: -- but they were deliberately deleted because she said -- because she said she believed that these were personal. She didn't do it, but she told her people, get rid of the personal stuff.

ZIMMERMAN: Also many of them were automatically purged from the system, and many of those e-mails are duplicates of e-mails that were already made public.

KELLY: I only have a short time left.

ZIMMERMAN: Okay.

KELLY: Why do you think her poll numbers are tightening now?

ZIMMERMAN: Here's the reality. The convention bounce had to come down. That's a basic rule of gravity although my Republicans don't believe in science.

KELLY: According to CNN poll, she lost it all.

ZIMMERMAN: Well, she lost a good part of it, but in the poll of polls, Real Clear Politics, she's still ahead by four percent. Let's remember, Barack Obama beat Mitt Romney by only four percent but had an electoral landslide. In the 12 battleground states, Hillary Clinton has expanded her lead in ten of them. So, obviously it's a tough race, but I'm encouraged by what I'm saying.

KELLY: Great to see you, Robert.

ZIMMERMAN: Good to be with you.

KELLY: Also tonight, new evidence has surfaced in the scandal involving Donald Trump, the Florida Attorney General, and what was really behind his big donation to her campaign. We'll take a look at that one.

Plus, as I just mentioned, the polls have flipped with Trump now in a virtual tie against Mrs. Clinton in the latest head to head matchup. And Larry Sabato is next on what this means for Election Day. Don't go away.

(BEGIN VIDEO CLIP)

CLINTON: I really pay no attention to polls. When they're good for me and there have been a lot of them that have been good for me recently, I don't pay attention. When they're, you know, not so good, I don't pay attention.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

KELLY: Just 63 days until decision day, and tonight national security is playing front and center for Donald Trump. He's in Greenville. Courting the votes of vets and military families.

Take a listen.

(BEGIN VIDEO CLIP)

TRUMP: Hillary Clinton favors what has been called military adventurism, okay? Military adventurism. Rushing to invade countries, displacing millions of families, and then inviting the refugees into our country. I believe in a foreign policy based on our national interest that focused on American security and regional stability instead of using our military to create democracies in countries with no Democratic history.

(END VIDEO CLIP)

KELLY: Carl Cameron is live in Greenville, North Carolina, with the very latest from the campaign trail. Hey, Carl.

CARL CAMERON, FOX NEWS CORRESPONDENT: Hi, Megyn. He's talking national security today as well as tomorrow, but he made a little bit of news in the last hour on ‘The O'Reilly Factor’ when Bill asked him about whether he'd release his tax returns, and of course he said not until the audit that he's been under for years is ended.

But then he suggested that if Hillary Clinton were to somehow come up with those 30,000 missing e-mails, he would immediately release his tax returns, which begs the question as to whether or not the audit is that much of a problem.

On the national security front, Trump today was in both Virginia and North Carolina. Virginia, a state with a high population of military. North Carolina, a key swing state where the battle is very tough. The polls are tightening across the country.

And earlier today in his remarks about national security, Trump raised some eyebrows in Virginia when he suggested that the count for civilian casualties in the various different U.S. military operations across the globe are somehow misleading the American public and it's far worse than we're led to believe. Listen.

(BEGIN VIDEO CLIP)

TRUMP: The Middle East now is a total catastrophe between the migration and all of the problems and all of the death. And I'm talking death on both sides, folks. I'm talking death on both sides.

Look at the people. You know, they blow up a city and they say two people were wounded, all right? You know the real numbers, OK? The real numbers are astronomical. Astronomical. And we started this whole thing.

(END VIDEO CLIP)

CAMERON: That a reference to the Iraq war as opposed to the war on terrorism. And as for tomorrow and the remaining foreign policy, Trump today suggested that he would not get involved with North Korea, that North Korea's should be China's problem, which raises questions about the U.S.
alliance with South Korea and other neighbors.

And tomorrow, one of the things that Trump will be talking about is missile defense and the types of things that the U.S. should be doing to rebuild the military. Megyn.

KELLY: Carl, thank you.

Meantime, there is new national polling out tonight showing a shocking shift in the presidential race. Less than two weeks ago, a Quinnipiac poll of likely voters had Mrs. Clinton up by a huge 10n-point margin. Look at that.

Then eight days ago, with troubling stories about her e-mail and foundation seemingly dropping daily, the slide began. Trump closing the gap with likely voters to just seven points.

And now tonight, Trump leading by one point. Look at that, in a CNN head to head matchup. Here to break it all down, the record of UVA's Center for Politics, Larry Sabato. Larry, great to see you.

LARRY SABATO, VIRGINIA UNIVERSITY CENTER FOR POLITICS DIRECTOR: Thank you.

KELLY: So, I mean, those are three different polls. It's not exactly the same. But still you tell me whether Trump has in your view closed the gap.

SABATO: Not completely. And, Megyn, these are campaign privately believes the CNN numbers. They believe that Hillary Clinton is still about where the polling average has her, three or four points ahead nationally, and in most of the key swing states, she's got a bigger lead than that.

KELLY: Well, do we look at these national numbers at all now, then? I mean, because they must mean something. Usually don't they sort of say, OK, this is where you're going to see the swing state polls go soon?

SABATO: Well, I think you have to look at polling averages. You can't cherry pick polls and pick a poll that you like -- not you, personally, but everybody does this, whoever they're for. They look at a list of polls and they pick one out with the best results for their candidate, and they say, aha, that's the one. I knew it. It says what I believe.

So you look at the polling averages. Now, look, I do agree of course that the convention bounce has faded for Hillary Clinton. It was inevitable that that would happen. She started in June and early July with about a four- point lead, and now she's got about a four-point lead. That's not to say it will stay that way.

You know, Megyn, every now and then there's a poll that grabs enormous attention, and that's what happened with this CNN poll this morning because it's the first day of the general election.

What's fascinating to me is this one poll did a great favor for both Trump and Clinton. For Trump, it gave him something he can use to excite his supporters, his rallies, and raise money. For Clinton, it wakes up parts of her campaign and the Democratic base that are asleep, that have been lulled into a belief that Trump would lose badly.

KELLY: Does this change the electoral map as you see it at all? I mean, this latest polling, which I know you don't base here your crystal ball on poll, but it's sort of factored in there.

SABATO: No, I haven't changed the map at all. But I tell you what. If we see this continuing to tighten, you're going to see several big swing states move together from Clinton into Trump's camp. That's what normally happens because a lot of them are bunched tightly together and their demographics are kind of similar, like in the Midwest.

KELLY: Do you make any accounting in your crystal ball, which predicts Hillary winning by a lot, for ground game? You know, Trump has struggled on the ground game, but he thinks he can enthuse people enough via the airwaves and, you know, speeches and so on television, that he can compensate for that.

SABATO: Well, that's his hope, Megyn. And maybe it will work out that way. But almost every professional in both parties that I've talked to, who know what's happening in terms of the ground game being organized by both sides, say there's no comparison whatsoever.

The Clinton people have been working on this probably for years, and it makes a point or two or three of difference in the really close states. Trump has very, very little, and the RNC is supplementing him, but they can only do so much.

KELLY: That was one thing Barack Obama did such a great job of is just getting out there and, you know, knowing county by county whose door he needed to knock on and who they needed to drag out and make sure they got to that polling station on Election Day. Sometimes people need a little nudge, you know, we get busy.

Larry, great to see you.

SABATO: Thanks, Megyn.

KELLY: Sixty three -- we're saying 63, 63 days till we get to November 8th, till you're going to go to the voting booth and you're actually going to pull the lever or write in or hit the little computer screen like, this isn't working. This is -- I hit, I hit. Oh, yes, I didn't mean that one.
You've been there, haven't you? I have been there as well.

So, new details tonight on the presidential debates. Who will be moderating them, and what is behind the first controversy following the announcement?

Plus, Donald Trump denying accusations of bribery after new questions about a big political donation and whether it affected an investigation into Trump University.

Katrina Pierson and Austan Goolsbee are next.

(COMMERCIAL BREAK)

KELLY: Developing tonight, Donald Trump is pushing back against claims of corruption following new revelations about a 2013 donation to a political group that was backing Florida's Attorney General Pam Bondi, a Republican.

And the fact that Bondi at the time was weighing an investigation, should she bring one into Trump University.

Trace Gallagher is live in our West Coast newsroom with the new details. Trace.

TRACE GALLAGHER, FOX NEWS CORRESPONDENT: Megyn, at the time Florida Attorney General Pam Bondi was looking into complaints about Trump Institute, which is an affiliate of Trump University. In 2013, Bondi's office confirmed to the Orlando Sentinel that it was considering joining a New York State inquiry into Trump U.

But just days after Bondi's campaign got a $25,000 donation from the Trump Foundation, Bondi decided not to pursue the case because of, quote, ‘insufficient grounds.’ Both Donald Trump and Pam Bondi strongly denied there was any type of bribe or quid pro quo, but the two camps differ on how the donation came about.

A spokesman for Pam Bondi told the Associated Press back in June that not only did she speak to Donald Trump, she personally asked him for the money. But Trump recalls it differently. Watch.

(BEGIN VIDEO CLIP)

DONALD TRUMP, R, U.S. PRESIDENTIAL CANDIDATE: I've never even -- I never spoke to her. First of all, she's beyond reproach. She's a fine person.
Never spoke to her about it at all. Ever.

UNIDENTIFIED MALE: Pam Bondi?

TRUMP: She's a fine person. Never spoke to her about it at all. Never.

(END VIDEO CLIP)

GALLAGHER: That was five ‘nevers,’ by the way. Trump acknowledges knowing Pam Bondi for years and having a lot of respect for her, and she clearly supports Trump, even spoke at the GOP convention.

However, the donation came about; it broke the rules for charitable foundations giving to political campaigns. Trump was forced to pay $2,500 in penalties to the IRS. Clinton supporters are frustrated that the Clinton Foundation is getting a ton of negative media, and the Trump Foundation, they say, seems to be getting a free pass. Trump supporters say there's a difference between one donation and a flood of donations. Megyn.

KELLY: Trace, thank you. Well, on several occasions Mr. Trump has spoken about his past political donations to both parties and his motivations for donating as a New York businessman. Watch.

(BEGIN VIDEO CLIP)

TRUMP: I give to everybody. When they call, I give. And you know what, when I need something from them two years later, three years later, I call them. They are there for me.

I've given to democrats. I've given to Hillary. I've given to everybody because that was my job. I got to give to them because when I want something, I get it.

(END VIDEO CLIP)

KELLY: Joining me now with both sides of the debate, Trump campaign national spokesperson Katrina Pierson and former chief economist to President Obama, Austan Goolsbee.

KATRINA PIERSON, DONALD TRUMP NATIONAL SPOKESPERSON: Hi, Megyn.

KELLY: Great to see you both. Austan, is this an issue? I'll start with you. Do you see this as an issue? I mean, it was a $2,500 fine. He paid it.

AUSTAN GOOLSBEE, FORMER BARACK OBAMA CHIEF ECONOMIST: Yes. Look, there's two different things. One is the foundation directly violating federal law, making -- it's a charitable foundation. It's making donations to a political campaign.

For that, they got in trouble, and they paid a fine. The second is, oh, then we come to find out that the payment was to an attorney general who was actually considering whether to join the lawsuit for fraud against Trump University and the Trump Institute.

I think this is going to have legs. I feel bad for the Trump surrogates that they were pumping up the Trump surrogates to attack the Clinton Foundation, knowing all along that they were themselves going to have this coming down the road. I mean...

(CROSSTALK)

KELLY: All right. We'll get -- we'll get to whether this is like the Clinton Foundation in just one second. Let's digest Trump University for a second, then we're going to move on to that comparison.

Katrina, let me ask you. The timing, you know, is not ideal for those defending Trump because it was -- it was four days after the donation came, four days after it was reported that Pam Bondi's office was going to -- was weighing whether to investigate Trump University.

So, four days later, he donated, and then she said, never mind, I'm not going to investigate you. So, you see why people say that stinks a little bit.

PIERSON: I could see how the Clinton campaign is trying to make it sound that way, and you had mentioned earlier in the package where Mr. Trump has been consistently contributing to politicians, particularly in Florida. It is his second home, and it was one of his biggest criticisms by his opponents in the primary.

The situation here, Pam Bondi took office in 2011, and during her tenure, there was one complaint, Megyn, that didn't even make it to her office. This was a staff decision. And when she receives the donation...

(CROSSTALK)

KELLY: When it comes to Trump University, you mean?

PIERSON: ... in 2013. Right.

KELLY: And you're saying unlike New York, she was not flooded with angry consumers saying go get him.

PIERSON: Absolutely. This was one -- one complaint that Pam Bondi received in her office, and it didn't even go to her. It went to staff, which is why they found no sufficient evidence.

(CROSSTALK)

KELLY: Why did he say that he'd never spoken to her, Katrina, when her spokesperson says that's not true, that she did call him and personally ask him for the money?

PIERSON: Because he was asked if she talked to him about Trump University. They've never talked about Trump University. She asked him for a donation, absolutely, but they never talked about Trump University because it never came across her radar.

KELLY: OK. Austan, the comparison to the Clinton Foundation, the Clinton Foundation is accused of taking, you know, tens of millions of dollars, more than that, from people who are trying to essentially buy access to our Secretary of State. You really think that's comparable to one donation?

GOOLSBEE: A, I believe that that is a somewhat radical mischaracterization of the charge against the Clinton Foundation.

KELLY: OK.

GOOLSBEE: And, B, we're talking about...

(CROSSTALK)

KELLY: How did I mischaracterize it? I don't want to mischaracterize it.

GOOLSBEE: So the question of access were things like the staff of the Clinton Foundation asking could the secretary meet with the Nobel Peace Prize winner? And people like that.

(CROSSTALK)

KELLY: People who had been denied through State Department channels and used the foundation contacts to get back-channel access.

GOOLSBEE: There's no accusation -- the FBI looked at it.

KELLY: OK.

GOOLSBEE: There has been no accusation of legal wrongdoing. In this case, there is direct admission of guilt of legal wrongdoing. They paid a fine, and it is paying a politician who was directly choosing whether or not to investigate Trump University. What I would say is...

(CROSSTALK)

PIERSON: Megyn, that's simply not the case. Pam Bondi was not looking to investigate Trump University. As I said, it never came across her desk. And the reason why...

(CROSSTALK)

KELLY: She made -- and she was -- no, it was reported in her office. No, no. Her office said it was weighing an investigation.

GOOLSBEE: You got to let...

KELLY: The office was weighing whether or not to investigate. It was weighing that, and then she decided against it.

PIERSON: And it was not -- it was not Pam Bondi.

KELLY: Listen, for the record, it has playing out New York -- this is separate from the...

(CROSSTALK)

GOOLSBEE: It was Pam Bondi's office.

KELLY: ... mass class action for fraud against Trump. I got it.

PIERSON: Yes.

GOOLSBEE: There are questions of whether this will be in another state as well.

KELLY: OK. Got it. Good to see you both.

Up next, Stirewalt and Kurtz on the inside scoop on the presidential debates.

(COMMERCIAL BREAK)

KELLY: Some big news you may have missed this past Friday. With 20 days to the first showdown, the Presidential Debate Commission announced its lineup of moderators.

OK. So we've got CBS, Elaine Quijano will helm, the vice presidential debate. NBC's Lester Holt, ABC's Martha Raddatz, and CNN's Anderson Cooper will handle the presidential matchups along with one of my co-hosts. From the Fox politics team, Chris Wallace, who is going to anchor the very first Fox News -- well, it's not a Fox News debate, but he's the first Fox News guy to anchor a presidential debate, so we're all proud of him.

Joining me now, Fox News digital politics editor, Chris Stirewalt, and host of Media Buzz, Howie Kurtz. So, first of all, Stirewalt on the debate prep team with me. And so, first, Chris, very happy.

He is awesome. He's a bad ass. It's going to go great. Seriously, he is very good. So, I want to get your thoughts, Chris, on the selection and what it likely tells us.

CHRIS STIREWALT, FOX NEWS DIGITAL POLITICS EDITOR: Well, what it does is says whenever Chris Wallace does that thing with his glasses, look out.

KELLY: Me, too.

STIREWALT: When the glasses come down like that, you're dead. You're roasted. Exactly. Look, I think the fact that Trump quickly accepted is testament to a balanced slate of options here. Fair-minded folks. That second one with the tag-team is going to be maybe tough. But basically what you have here is...

(CROSSTALK)

KELLY: Martha Raddatz and Anderson Cooper doing a town hall.

STIREWALT: ... is the normalization of this election. Trump is trying hard to normalize. Normal candidates do normal debates. We have normal debates. We're having a more normal election now than we were before and this is a reflection of that.

KELLY: Howie, your thoughts?

HOWARD KURTZ, MEDIA BUZZ SHOW HOST: Well, really the first debate represents Donald Trump's best shot at passing the commander-in-chief test, as presenting himself temperamentally as a plausible president.

Hillary Clinton has been in government forever, she doesn't face that particular problem, but Trump has the chance here to pull a Reagan. If he comes in, he's reasonably serious, he doesn't call her crooked Hillary, speaks in complete sentences, he could beat the expectations game that we all like to play.

KELLY: Speaking of commander-in-chief test, tomorrow night, NBC is having its own commander-in-chief forum hosted by Matt Lauer. There was a coin toss to see who would go first. It will be Hillary and then Trump will go. What is this, Chris? Is it helpful to go first or second?

STIREWALT: I don't think it matters. When you have the host of the today show is going to come out and ask some questions of these folks.

KELLY: Matt Lauer is a good questioner.

STIREWALT: I'm not saying he's a bad questioner. I'm just saying I expect this to be they're going to talk a lot, and it's going to be like a television interview, and they're going to talk loud, and there will be a pro-fusion of words gushing out across the land in a torrent, but it's not a debate.

And don't kid yourselves into thinking that this is some real debate. This is going to be a lot of palaver and very, very little in terms of the real stuff.

KELLY: I predict we will be impressed with Lauer because he usually does his homework. Howie, the significance of Fox News getting a debate here?

KURTZ: Well, it's true diversity. You have a black anchor, you have a Hispanic anchor, you have a gay anchor, two females anchors, and somebody from Fox News. And, you know, that's ultimate diversity.

KELLY: That's true.

KURTZ: Now, Chris Wallace has taken a little heat for saying on my show that he was not going to true squad the candidates' answers. Remember how Candy Crowley got beat up for trying to correct Mitt Romney, with what he was saying about President Obama and what he has said about Benghazi.

KELLY: Yes.

KURTZ: So, look, Chris is going to come in there, he's going to deal with the facts, and he is going to ask follow-up questions...

(CROSSTALK)

KELLY: We got to leave it that.

KURTZ: ... but he doesn't want to personally debate the candidates.

KELLY: Bad ass. That's what he is.

KURTZ: Yes. Thanks to bad ass, folks.

KELLY: We'll be right back.

(COMMERCIAL BREAK)

KELLY: Will you watch the presidential debates? Facebook.com/thekellyfile, on Twitter, @megynkelly. Let me know why not. You got to. Good night. I'm Megyn Kelly. See you tomorrow.

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