Napolitano on FBI's internal feud over Clinton case; Dershowitz talks fallout over renewed probe

This is a rush transcript from "The Kelly File," October 31, 2016. This copy may not be in its final form and may be updated.

MEGYN KELLY, HOST: Breaking tonight, from the Friday night frying pan to the Monday night fire, the Clinton campaign now dealing with not only a new investigation by the FBI, but also with new allegations that the campaign manager lied to the country and the candidate cheated at a key debate.

Welcome to "The Kelly File," everyone. I'm Megyn Kelly. It isn't just the emails, folks. For the second time in a single month now, we are hearing new reports that former acting DNC Chair and former CNNer Donna Brazile was feeding questions to the Clinton campaign ahead of Democratic town hall debates. On top of that, we're now hearing that Clinton campaign manager Robby Mook had a close relationship with a man who engineered a series of dirty tricks on the campaign trail.

After Mook went on National TV to say he didn't even know this guy. And we haven't even begun going over the new headlines regarding the FBI stunner on Friday, its decision to put out Mrs. Clinton's email investigators back to work. And there are many of them.

Fox News senior judicial analyst Judge Andrew Napolitano is here on that along with Harvard Law Professor Emeritus Alan Dershowitz. But we begin with our chief intelligence correspondent Catherine Herridge with the very latest of where we are in this investigation. Catherine?

CATHERINE HERRIDGE, FOX NEWS CHIEF INTELLIGENCE CORRESPONDENT: Megyn, tonight, the FBI are sifting through thousands of emails after forensic specialist at the bureau developed a software program to exploit the data and identify records relevant to the Clinton case. We learned today that in early October, New York FBI agents working the sexting investigation stumbled across emails from Anthony Weiner's estranged wife, Clinton aide Huma Abedin.

FBI headquarters here in Washington was notified. We don't know why it took another three weeks for FBI Director James Comey to send Friday's letter to Congress. What we've confirmed is that the New York agents needed additional approvals to expand their search beyond the sexting allegations. After the review found multiple hits for the Clinton server and State Department records. With Sunday's search warrants, agents can now read the contents of those emails.

In the meantime, a source close to Weiner's legal team tells Bret Baier that they believe the laptop was used to back up Abedin's smartphone contacts, and in the process it back up all of her emails including those from Secretary Clinton's tenure at the State Department. Abedin told the FBI in April that she routinely sent State Department emails like this one from Clinton to her personal Yahoo! account where it was easier to print that the clumsy State Department system.

And in a separate deposition with Judicial Watch, Abedin swore under oath that she never deleted in any emails and that searched any device that could possibly hold government records. That's where in declaration tonight is now in question. The Justice Department sent this letter to Capitol Hill today pledging to make every resource available to expedite the review before Election Day. But with the number of records that does seem to be a long shot -- Megyn.  

KELLY: Uh-hm. Catherine, good to see you.


KELLY: Joining me now, Fox News senior judicial analyst Judge Andrew Napolitano.  

So now it looks like Huma had a shared computer with Anthony Weiner.

She had forwarded a bunch of documents that she never should have forwarded from Hillary Clinton's server to her Yahoo! account because no one's Yahoo! account has ever gotten hacked. And then magically forgot about it when she came under questioning by the Federal Bureau of Investigation.  

JUDGE ANDREW NAPOLITANO, FOX NEWS SENIOR JUDICIAL ANALYST: Right. As well as under oath, the Freedom of Information Act case where the deposition was ordered by a federal judge, the lawsuit by Judicial Watch. Look, if the FBI had been permitted by the Justice Department to seat a grand jury and therefore had subpoena power, they more likely than not would have subpoenaed Huma Abedin's mobile device and would have seen the trigger in there that automatically forwarded to herself every email she received.  

KELLY: Unbelievable.  

NAPOLITANO: Whether from Mrs. Clinton or anybody else.

KELLY: Unbelievable.

NAPOLITANO: They didn't know about --

KELLY: Yahoo!


KELLY: Email account has our state secrets.  

NAPOLITANO: They didn't know about it until they stumbled upon it when they were looking at her husband's laptop for reasons that we understand.  

KELLY: Okay. So they didn't -- and they're looking to see whether there are state secrets in there and whether there's classified information in there.  

NAPOLITANO: Well, it's interesting. The affidavit to induce the search warrant that they gave to her federal judge in New York City.  

KELLY: On Sunday.  

NAPOLITANO: On Sunday night, two days of Director Comey sent a letter about what he hadn't seen --


NAPOLITANO: -- which caused all of this uproar that I've been very critical, that affidavit targets Huma, it doesn't target Hillary Clinton.  That she may have lied to us. The FBI --  

KELLY: And more and more at the reporting that they may not be such bad news for Hillary in here but there may be very bad news for Huma Abedin.  


KELLY: You're pointing out that Comey's letter on Friday that got everybody in such a teasy like, wait, what? He is reopening the investigation, there's, you know, nine days or whatever that was to go to the election, you say he shouldn't have sent it among other reasons because he didn't know what was in the emails. And we all I think were surprised that he hadn't obtained a warrant yet to see what's in the emails.


KELLY: To see what's on the emails. What is so wrong about that? He saw that there were thousands of them. He was told by his guys that they related to the Hillary Clinton investigation.  

NAPOLITANO: Because the FBI does not give progress reports on criminal cases --  

KELLY: But he promised Congress he would update that.  

NAPOLITANO: But it was a promise that he often have made and that would never be kept. Because he is not obliged. In fact, it is a violation of Department of Justice and FBI policy for him to give such a progress report. It creates a false impression of a snap shot of evidence. It's like Kafka and the throne (ph). Mrs. Clinton doesn't know what's in there, on these clouds hanging over her.

KELLY: So, this could be nothing. Your point is, this could be a nothing burger and it's already been hung around her neck?

NAPOLITANO: My point is that he should have unleashed the FBI to go wherever the evidence takes them without telling anybody that he was doing it. And given the evidence to the Justice Department. This is a fact- finding investigative agency that he runs. He doesn't answer to the Congress, he doesn't answer to our Congressional committee. He answers only the DOJ.

KELLY: But he was asked before the House Oversight Committee whether he would reopen the Clinton investigation if he discovered new information that was relevant or substantial and he said he believe we certainly would look at that. So, I don't know. I mean, we'll see. Reportedly he felt the bureau's reputation was on the line and now we actually have a theory as to another reason why he did it. Judge, good to see you.  

NAPOLITANO: Of course.

KELLY: We're going to get into that now. So, we are also investigating a possible civil war brewing in Washington after reports surfaced that the DOJ tried to stop the FBI from looking into the Clinton Foundation. Yet another mess in this election. "The Wall Street Journal" broke this story earlier under the headline "FBI in internal feud over Hillary Clinton probe."

And Ed Henry has the new details live from Washington. Ed?  

ED HENRY, FOX NEWS CORRESPONDENT: That's right, Megyn. Questions about whether a top FBI official told agents to halt the probe of the Clinton Foundation. They were looking at potential financial crimes. This comes as there were new Wikileaks revelations today about that foundation.  Despite Hillary Clinton repeatedly saying, the focus should be on good works around the world, one email showed her top campaign strategist Joel Benenson and told colleagues. In 2015, he was dealing with, quote, "brush fires over the foundation" and they should finally cut off foreign donors.

Eight days later, Bill Clinton's top aid wrote to John Podesta cryptically, quote, "Foreign government donors, all the money is in." As for the FBI investigation -- you say reporting, quote, "Others further down the FBI chain of command whoever said agents were given a much starker construction on the case, stand down when the agents questioned why they weren't allow to take more aggressive steps, they said they were told the order had come from the deputy Director Mr. McCabe."

That is Andrew McCabe, you may remember him. Now the deputy director of the FBI, people close to him deny he ever issued a stand-down order. But he was under fire because the campaign finance records show the pact of a close Clinton friend, Virginia Governor Terry McCabe donated nearly half a million dollars to the 2015 state Senate campaign of Dr. Jill McCabe who is married to that FBI official. She lost anyway and all involved have denied any improper influence on these various FBI investigations -- Megyn.  

KELLY: Ow! Ow!

HENRY: Makes your head hurt.  

KELLY: I don't know what the hell you just said.


Just like, can you just -- can you bottom-line? McCabe, I get the part, this was reported last week, McCabe second in command at the FBI, the wife runs for office in Virginia.  

HENRY: State office in Virginia.  

KELLY: She basically gets a big donation from a huge Hillary supporter who happens to be the governor of Virginia. Totally unrelated. The Clintons had no idea.  

HENRY: Now agents are saying, look, we've got a stand-down order.  

KELLY: We understand that.


KELLY: What's the separate thing about the Clinton Foundation and McCabe?

HENRY: So they're saying that -- FBI agents are saying they were given a stand-down order, stop investigating the Clinton Foundation.  

KELLY: By McCabe?

HENRY: And that it came from McCabe. People around McCabe say, he never issued any order, he wanted to get to the bottom of what was really going on at the Clinton Foundation. And that people are just trying to tie the campaign finance donations to this and blame everything on him. So, nobody knows the truth. I think the bottom line, the FBI is in full revolt right now. It's a mess. This is an agency that's supposed to be sorting all of this stuff out, instead here we are almost a week before the election. And it's in chaos.  

KELLY: Wow! Ed, thank you.  

HENRY: Good to see you.  

KELLY: I'm getting -- it's getting a little bit more clear. Were you with me? It's like what? What? Let's see if we can go one step further.

Joining me now, former House Intelligence Committee Chairman and Trump campaign national security adviser Pete Hoekstra. And former deputy assistant for President Bill Clinton and co-founder of Third Way Matt Bennett. Good to see you, both.

Congressman, let me start with you. I mean, the takeaway seems to be something funny is up at the FBI. It kind of stinks. We don't want to falsely impugn McCabe who one presumes is serving his country honorably but the evidence seems to be pointing in the direction of a red flag where he sets.  

REP. PETE HOEKSTRA, FORMER CHAIR OF THE HOUSE INTELLIGENCE COMMITTEE:  Well, I think you really got a couple of red flags here. You've got them at the FBI with McCabe, whose wife's campaign got the $500,000. McCabe should have recused himself and not been part of the process in terms of decision-making either here on the Clinton Foundation or on the Clinton e- mails.  

KELLY: He wasn't in charge when the donation was made, however. He was not overseeing the Clinton emails investigation at that time.  

HOEKSTRA: That is absolutely correct. But as that process moved forward, he did move into the decision-making process.

KELLY: But his wife already lost at that point.  


KELLY: His wife already lost at that point?

HOEKSTRA: Yes. But the thing is at one point in time they had gotten $500,000. And that -- hey, I've raised funds. You remember the people who give you $500,000, let me tell you.  

KELLY: Yes. That's a big number.  

HOEKSTRA: The other person that should have recused herself through this process is Loretta Lynch. Her name comes up repeatedly in both of these investigations. You know, this is a person who was appointed by Bill Clinton when he was president to be a district attorney. This is a person that met with Bill Clinton on the tarmac at a Phoenix Airport as both of these investigations were going on.  

KELLY: That's coincidental.  

HOEKSTRA: Yes, coincidental.

KELLY: And this is also the person that was mentioned in The New York Times report as being considered to be the next Attorney General if Hillary Clinton won this race. They both should have recused themselves and turned it over to the other professionals at the FBI and the Justice Department.  

All right. Matt, what's your -- let's just start broad. What's your take on this?

MATT BENNETT, FORMER DEPUTY ASSISTANT TO PRES. CLINTON: So, look, Megyn, almost everything that the Congressman just said is conjecture taken from anonymous sources who are warring with each other. Ed Henry made clear --


BENNETT: In the newspaper, both in The New York Times when there was conjecture about Loretta Lynch being re-appointed as attorney general and in "The Wall Street Journal" today with the story about the FBI. It is a bad week for the FBI where you have people leaking anonymously to the newspaper on both sides of every single issue. You got one side saying, there's misconduct, other side saying no there isn't. There's people impugning the integrity of the deputy director of the FBI with zero evidence.  

KELLY: Right. Well, it's not -- right, they have nothing hard, you know, against him. It's just circumstantial. You know, it's like really?  Should he have taken $500,000 from Terry McAuliffe who is a well-known operative of the Clintons? Even though he's a governor of Virginia. And then gone on to oversee investigation having to do with Hillary? I see the congressman's point, don't you, that perhaps Mr. McCabe should have recused himself. We're showing Comey but it's just second and command from that investigation and from any investigation having to do with Hillary.

BENNETT: Look, I really don't know enough about how the FBI operates to understand when recuse is necessary. But we'll tell you this. Terry McAuliffe's goal in life back then was to get the Senate back for Democrats. He was being blocked in his number one ambition which was, being blocked by the Virginia Senate Republicans and it was like a one or two seat majority and that was a seat that he thought he could win and he raises prolific amounts of money. So, I am not the least bit surprised, so he put that kind of money into a race --

KELLY: Even that kind because, I mean, listen, you're the expert not me.  But they say that 500,000 beans is like -- that is a lot in any race, never mind a state race like hers.  

BENNETT: It is. But I think as you pointed out, she lost. So, maybe it wasn't enough. State Senate races can be very expensive in very expensive mini markets. But the point is, Terry McAuliffe wasn't thinking about what the deputy director of the FBI might or might not be investigating. He was thinking I got to get the Senate back. It had nothing whatsoever to do with what her husband did for a living.  

KELLY: Okay. You've heard from the prosecution and the defense and now we just let the case rest for this evening anyway and let the viewers shall decide whether there's funny business going on with the investigations of the Clintons. Great to see you both.  

BENNETT: Thanks, Megyn.

HOEKSTRA: You're great. Thank you.

KELLY: Well, ever since Director Comey dropped the bombshell on Friday, leading Democrats have taken turns attacking the FBI director, the one they loved so much back in July. So, why was the White House defending Mr. Comey this afternoon? We'll speak with law professor Alan Dershowitz about that, next.

Plus, for the second time in a single month, leaked emails appear to show Donna Brazile giving the Clinton campaign an unfair advantage heading into a presidential debate, the primaries, that is. So what does Ms. Brazile have to say about that tonight? And what about what she told me on this broadcast in front of all of you just 12 days ago. Don't miss our investigation still ahead.  


KELLY: Where did you get it?

DONNA BRAZILE, POLITICAL ANALYST: You know, as a Christian woman, I understand persecution but I will not sit here and be persecuted because your information is totally false.  

KELLY: I'm getting it from Podesta's email.  

BRAZILE: Well Podesta's email were stolen. You're so interested in talking about stolen --

KELLY: So you deny it.



KELLY: Eight days to go. It feels like we're going to make it. Like eight days. We can handle that. And Hillary Clinton and loyal Democratic allies are wasting no time condemning FBI Director James Comey over his decision to take a look at this new evidence in her email scandal. Here's a little sample.  


UNIDENTIFIED MALE: I call it an October betrayal of long standing FBI protocol.  

UNIDENTIFIED MALE: Director Comey made a grave mistake. We all make mistakes. But this is a grave mistake.  

UNIDENTIFIED MALE: Mr. Comey really needs to come forward and explain why he took this unprecedented step.  

UNIDENTIFIED MALE: Director Comey sent this unprecedented letter shortly before the election when he doesn't even know what the information is.  That's disturbing.  

HILLARY CLINTON, D-PRESIDENTIAL NOMINEE: In fact it's not just strange, it's unprecedented and it is deeply troubling.  


KELLY: So, dozens of top Democrats taking the chance to attack Director Comey. It got some attention when the White House today said this.  


JOSH EARNEST, WHITE HOUSE PRESS SECRETARY: These same character traits are what led a strong majority of Democratic and Republican senators to confirm him to this job. These are the traits the led the President to select him to be the director of the FBI and these are tough questions. And so it's a good thing that he's a man of integrity and character to take them on.  


KELLY: Joining me now, Alan Dershowitz, Harvard Law professor emeritus and author of "Electile Dysfunction: A Guide for Unaroused Voters" and there are many of them. Professor, great to see you.


KELLY: So, first let me get your take on Comey and whether he did the right thing

DERSHOWITZ: Well, I think he is a man of integrity. I think the President got it exactly right. He's a man of great integrity. And he is going to be criticized and he has been criticized by legal scholars, by Republicans by a former Attorney General. I think he did the right thing by making the statement, I think the statement was wrong. What he should have said is this, I don't know what is in these emails. I've never seen them.

The Fourth Amendment precludes any of us from looking at them. I'm going to look at them now. But don't infer anything. Don't change your vote based on my announcement. It is a technical announcement designed to inform Congress. But if anybody infers anything from the content of those emails, they are making a serious mistake. He should have said that and he should say it now because he's been misunderstood.  

KELLY: We don't expect anything from Director Comey at all.


KELLY: Between now and Election Day. And this process are going to take months to play out.

DERSHOWITZ: And let's remember to, we all trust Comey. I do.

KELLY: I do too.  

DERSHOWITZ: But remember who the building is named after. J. Edgar Hoover. Would we want this precedent established by Comey to be employed by a J. Edgar Hoover in the future? Remember the FBI director does becomes precedent and what he's done poses a dangerous precedent by an FBI director who might actually want to put his thumb.

KELLY: I trust Comey as a recovering lawyer who's been told by lawyers with Republican and Democratic backgrounds for years that he's a straight shooter --


KELLY: -- and calls them like he cease them and irrespective of politics.  Let's just talk about this. So, let's just say she gets indicted, which is a far step away from where we are right now.  

DERSHOWITZ: It's not going to happen.  

KELLY: But people are wondering how it would affect the election. If she gets indicted, let's say she wins on Tuesday and then she gets indicted.  Can she still be president?

DERSHOWITZ: Yes. But let's turn it around, let's assume she loses on Tuesday and then on December 1st, Comey announces there's nothing in any of these email. There's simply duplicates. He becomes the villain of the peace. He should not be having an impact either way. What I think happened is he saw that Hillary was so far ahead that he said to himself, let me air on the side of disclosing this, it's not going to change the election --  

KELLY: Oh, really?

DERSHOWITZ: Because --

KELLY: Do you think politics did --

DERSHOWITZ: Well, I think his own self reputation, I don't want to be criticized by Trump after he loses the election. What he didn't realize is that his very statement could turn the election around and give it to Trump. And then if he finds nothing, he's in trouble. Let me tell you what else is wrong, the Clintons are handling this wrong. By criticizing him, they're putting unconscious pressure on him to find something.  Because if in fact he finds nothing --

KELLY: Right.

DERSHOWITZ: He'll look terrible.

KELLY: Right.

DERSHOWITZ: So, he's going to look very hard to find something.  

KELLY: She should act like she doesn't care.  

DERSHOWITZ: Absolutely right. She should say, look, I disclosed, put it all out, but you never benefit from criticizing the director of the FBI.  

KELLY: Do you believe that Huma Abedin is just shocked to find 650,000 documents or emails on her home computer that she just allegedly didn't know about them in.  

DERSHOWITZ: I think both she and her lawyers had an obligation to check that and find that out when she got a subpoena to produce the information, was asked to produce it and she and her lawyers said they produced everything. It was at least negligent for them not to have checked on a home computer that was her husband's and that easily could have been used for backups, especially if she knew she used it to back up some materials.  So maybe she didn't know, but she should have known and her lawyer should have known.  

KELLY: They basically say that if Hillary Clinton were elected on next Tuesday and then indicted and then convicted before inauguration, Tim Kaine would then be the president. If she gets indicted and not convicted until after the inauguration, there's really no question. It's not clear whether you can pardon yourself but she's probably in the clear at that point.  

DERSHOWITZ: She can't pardon herself. She's not going to be indicted.  It's more likely that Trump will be indicted for his Trump University, for his relationships with Russia, for all of that.  

KELLY: He's not going to be indicted for any of that.  

DERSHOWITZ: Of course not. That's my point. Neither of them are getting indicted. Nobody gets indicted for what he's done --

KELLY: Maybe I'm getting indicted. Are you a twin?

DERSHOWITZ: No. Nobody is getting indicted for emails.

KELLY: Okay.

DERSHOWITZ: This is a new thing. Nobody knew how to deal with it. So I think that what I'm worried about is that the election could be influenced by what Comey said.  

KELLY: Uh-hm. We're going to get into that in just a bit and take a look at what the polls were telling us. Professor, always a pleasure.  

DERSHOWITZ: My pleasure.  

KELLY: Maybe the Tea Party groups are going to get indicted. They usually are the ones who find themselves in the -- right?

Okay. Also tonight, new controversy over Donna Brazile after it appears that the CNN contributor and the acting DNC Chair right now has been caught sharing CNN debate questions with the Clinton campaign for a second time.  Those are the two we appear to know about. Here's how she responded after the first time.  


KELLY: Jake Tapper came out and said this was unethical. That's your own colleague at CNN. It's not Megyn Kelly. Who gave you that question?


KELLY: We'll show you how she's responding tonight when Tucker Carlson and Richard Fowler join us, next.

Plus, Howie Kurtz weighs in and what it means for CNN, and what their obligation is now. Stay tuned.


KELLY: Breaking tonight, new controversy for Donna Brazile as the interim DNC chair and former CNN contributor finds herself once again accused of stacking the deck for Hillary Clinton. She's accused of cheating. This is the second time in the second event where Ms. Brazile appears to have fed the Clinton campaign insider information in advance of the debate.  

Here's a little of what happened when I interviewed her about the first incident.


KELLY: Where did you get it? Where did you get it?

DONNA BRAZILE, FORMER DNC CHAIR: First of all, what information are you providing to me that will allow me to see what you're talking about? Everybody...


KELLY: You got the WikiLeaks release of March 12th, Podesta email showing you messaging the Clinton campaign with the exact wording of a question asked at the March 13th, CNN TV town hall debate. Where did you get it?

BRAZILE: Kelly, Kelly, Kelly, you know, as a Christian woman I understand persecution but I will not sit here and be persecuted because your information is totally false. What you're -- what you're telling the American people...


KELLY: I'm getting it from Podesta's email.

BRAZILE: ... what you're -- what your -- well, Podesta's email were stolen. You're so interested in talking about stolen...


KELLY: So, you deny it?

BRAZILE: You're like a thief that wants to bring into the night the things that you found that was in the gutter. Well, Kelly...


KELLY: Jake Tapper came out and said this was unethical, that's your own colleague at CNN, it's not Megyn Kelly. Who gave you that question?

BRAZILE: Hey, Megyn, once again, I've said it and I've said it on the record and I'll say it on the record and I'll keep saying it on the record. I am not going to try to validate falsified information.

KELLY: Your email to the Clinton camp said sometimes I receive the questions in advance.


BRAZILE: Ma'am, you know, you know what?


KELLY: And CNN is saying Roland Martin gave them to you or someone at TV One and they were provided to Hillary before the town hall.

BRAZILE: Well, anybody who knows me and there are a number of your colleagues as well, they know me very well. I know how I play. CNN has never provided me with questions, absolutely ever. Not us, sorry.

KELLY: Well, when you said from time to time I get the questions in advance, what were you referring to? Because in that email you offered the exact question that one of the moderators Roland Martin then proposed the next day?

BRAZILE: So my reference back to you, ma'am, with all respect, and I respect you greatly.

KELLY: And I respect you too.

BRAZILE: The validity of those emails, if I can only tell you one thing - -because as you know, this whole episode is under criminal investigation. But I could just tell you one thing. A lot of those emails I would not give them the time of the day. I've seen so many doctored emails.



KELLY: Today, Ms. Brazile is again denying any wrongdoing. In moments, we'll be joined by Tucker Carlson and Richard Fowler, we'll ask if these latest developments supports Donald Trump's claim that the system is rigged and we'll also speak with Howie Kurtz about the fallout here for CNN.

But we begin with Trace Gallagher reporting from our West Coast newsroom. Trace?

TRACE GALLAGHER, FOX NEWS CORRESPONDENT: Megyn, now it appears that one day before the democratic primary debate on March 6 in Flint, Michigan on CNN.

Donna Brazile, apparently wrote to Clinton campaign chair John Podesta and campaign communications adviser Jen Palmieri, quoting, "One of the questions directed to HRC tomorrow is from a woman with a rash. Her family has lead poison and she will ask what if anything will Hillary do as president to help the people of Flint."

And here is the question that was asked the very next night to both night Clinton and Bernie Sanders. Watch.


UNIDENTIFIED FEMALE: Will you make a personal promise to me right now that as president in your first hundred days in office you will make it a requirement that all public water systems must remove all lead service lines throughout the entire United States.


GALLAGHER: A little too coincidental for CNN which now says it's severed ties with Donna Brazile back on October 14th, and quote, "Never gave Brazile access to any questions. We are uncomfortable with what we have learned about her interactions with the Clinton campaign while she was a CNN contributor."

Brazile herself continues denying that she gave the Clinton campaign questions and said that she treated the democratic candidates equally. And remember at the time she was the vice chair of the Democratic National Committee which is not supposed to back candidates during the primary.

But today's response from Brazile is downright tepid compared to the defense when she offered when he was first accused of tipping off the Clinton campaign earlier this month. That's when she claim persecution and reportedly indicated the Russians may have doctored emails that she apparently sent in the Clinton campaign before the March 12th primary debate, also on CNN.

Quoting from them, "From time to time I get the questions in advance. Here's one that worries me about HRC." Brazile then goes on to warn the Clinton campaign to be prepared for a question about the death penalty which Hillary Clinton supports but that Clinton answered at length during the debate. Megyn?

KELLY: Trace, thank you. Joining us now, Tucker Carlson, editor in chief of the Daily Caller and co-host of Fox and Friends on the weekend here at Fox, and Richard Fowler, who is a Fox News contributor and nationally syndicated radio talk show host.

Man, you know, can I tell you, when this story first broke I defended CNN and I defended Donna Brazile saying I just cannot imagine either one of them doing this. I can't -- with the height of unethical behavior.

And yet, the facts are proving my initial defense of them wrong and there's no way -- there's nowhere or them to go with it, Tucker.


KELLY: There's nowhere for them to go.

CARLSON: She may respect you but she was lying right to your face as we now know. I mean, let's just stipulate by the way at the outset, that whether or not you agree with WikiLeaks, what they do, even if you, probably WikiLeaks, I don't think there's a single piece of data that they've ever released that's been proven to be false, a fabrication and it's the same in this case.

She did this. CNN knows she did this and consider CNN's response, they're quote, "uncomfortable with this." She stole information that may in the end have influenced the outcome of a presidential nominating contest that was close and tough thought.

As you remember at that time and she weight it one side with the help of information that CNN had. What CNN's response. So, I reached out to Brian Stelter who their media show over there today and he's always on its high horse about some wrongdoing in the media, no real response from him.

And that has basically been the response from CNN. Who's watching the watchdog, that's the question here and the answer of course is nobody. It's unwilling to police itself as a network and I think that's really a problem.

KELLY: You know, Richard, the problem is that it undermines the integrity of the whole system and it makes people wonder whether, you know, what other cheating has there been that we don't know about and whether this continued. Did this continue thereafter? Might this have gone on during, you know, into the -- into the general election? I mean, you tell me whether this makes you uncomfortable.

RICHARD FOWLER, NATIONALLY SYNDICATED RADIO HOST: Well, I could be wrong. I think this is a very, very mess. And I agree with Tucker on the point that I think CNN really should be, and you know, point to American substance they got, how is it possible for one of your contributors to get the questions where in a network this nobody got the questions, right?

So, I think that needs to be said. But here's the larger problem, and I think the problem for Donald Trump. Yes, there is a problem. Yes, it's problematic. But with that being said, Donald Trump's idea that the media somehow coordinating with all of these, you know, state board of elections to rig the election seems to be false.


FOWLER: What the media is doing, besides what we've seen with this email, most of the time Donald Trump is putting his foot in the mouth, the media is pointing it out and he's blaming the media for them putting his foot in his mouth. And that's problematic.

KELLY: Right. OK. But we've covered that at length. But this is a distinct and serious problem, Tucker. And I mean, I know this is an old horse. But can you imagine? Can you imagine if this were a republican...


KELLY: ... who had been fed a question by Fox News, you know, the different reaction we would be seeing in the media?

CARLSON: Well, I was standing about five feet away from you when you did that interview with Donna Brazile, whom I like by the way I live here. I know her. And my jaw was open as was the jaw of everyone who was watching. October 19, we were in some of the debates is that I remember.

I remember thinking how can that not be on the front page of the New York Times. She has no response at all. She accuses you of persecuting her. She kind of half quote the bible and then sort of stumbles in there of interpreting.

And I'm thinking, this is the head of one of our two political parties giving a nonsensical answer, lying in the most transparent possible way and basically nobody picked it up. It's like, yes, whatever. She just kind of went on. Do you know what I mean, like, somebody should have been saying stop?



KELLY: Yes, it's an extraordinary moment. But, Richard, can she stay at acting chairwoman of the Democratic National Committee?

FOWLER: Well, listen. I know Donna very well just like Tucker. I know her personally. I've known her for very -- for almost a decade. I will say that she -- you know, I think it's very said that the Russians have hacked these emails. But I do think here's the thing.

Donna is -- and I think anybody on either side of the aisle can tell you. You talk to Carlson over to tell you the same thing. Donna is one of the best political operatives out there and I'm happy that she's at the helm of our party going into what's going to be a very tough election.


KELLY: And it's -- she's a lovely person. she's a lovely person. I mean, listen, this is my job, right? I get paid to call this stuff out. So, I did. But I had her dead to rights and one wonders whether the reason she was so defensive in that interview was because she knew it wasn't the only time, Richard.

And you tell me, so you're fine with her notwithstanding the fact that she appears to have cheated in two debates, staying at the head of the DNC?

FOWLER: Well, look, I said, I think there has to be -- the question has to be asked how is it possible for a political operative to get a question. That's the main question here. And I think me and Tucker on that point.

But that being said, when it comes to running the Democratic Party, when it comes to winning this election which is likely we're going to do in eight day, I trust nobody more than Donna Brazile to get the job done.

KELLY: Well, I'm sure -- sure, she got the job done, right. She got the one nominated that she wanted.

CARLSON: Exactly.

KELLY: Then she's heading the polls. The question is, how did they get there.


KELLY: Richard, good to see you. Tucker, you too.

FOWLER: It's because of the people, not because of the email.

KELLY: Well, now because of that behavior. We have to question that. Good to see both of you. Good-bye.

As Trace mentioned, we reached out to CNN, we were given a statement that reads in part, quote, "On October 14th, CNN accepted Donna Brazile's resignation as a CNN contributor."

It goes on to say, quote, "CNN never gave Brazile access to any questions, prep material, attendee lists, background information or meetings in advance of a town hall or a debate.

Howie Kurtz is host of Media Buzz on Fox News, Howie used to work at CNN. I don't want to be the first to run to condemn CNN. I don't know how she got the questions, Howie. But they need to look into this.

HOWARD KURTZ, HOST, "MEDIABUZZ": Look, you used the right word in saying this was cheating. Donna Brazile betrayed the network where she worked for many years. And it gives me no joy to say that as somebody who's also known for a long time.

But CNN has handled this poorly. I don't believe that anyone at CNN fed these questions in advance to Donna Brazile. CNN suggested that it came from TV One, their partner in the town hall where they got -- where Donna Brazile got those advance questions.

But here's the thing. More than two weeks ago, CNN basically forced Donna Brazile out. They're calling it a resignation. We all know what happened. This is the first we're hearing about it with the second WikiLeaks stuff.

This is CNN talks about transparency. Why did CNN not get out in front of this, saying that we're parting company with Donna Brazile saying we're conducting an investigation as oppose to it kind of looks like. CNN was more interested in protecting its image than in being transparent about its journalists.


KELLY: Well, because listen, after the -- after the first step, it was OK, we partnered with, you know, TV One and Roland Martin. Not to impinge with Roland Martin. We don't know whether he did it or TV One did it. But CNN was certainly kind of like, look over there.

And now this second one happened in a debate that was only CNN. There was no other partner. And if she got the question, you know, the question is, where did she get it from. And I'm sure -- you know, CNN should be out there defending its journalists, you know, Anderson Cooper hosted that debate and Don Lemon participated. It should be defending its journalist and it should be saying.

I mean, if nobody gave her the question, how did she access it? Here we have systems. You could go back and check. You can find out when somebody's, you know, I.D. log into the system and where they went when they were in there. So, if that's what they're suggesting we should know that. I mean, the journalists over there at CNN should be demanding that right snow.

KURTZ: Yes, CNN should be horrified at this turn of events to use Jake Tapper's term, one of the few who spoke out there, and should investigate and should go public with the results of that investigation, and should try to, you know, vindicate its reputation by identifying who was responsible.

It's not fair to tarnish the whole network but that's what Donna Brazile did in Hillary Clinton but that's where it stands now. And to not even come forward and say, oh, by the way, she's not coming back here.

And ABC also suspended its contributorship with Donna Brazile when she became acting head. We'll see what ABC does.

KELLY: Yes. And good for them, too. I mean, it's, you know, it's hard because she is such a -- she seems like a lovely person. But...

KURTZ: And she was the vice chair of the DNC at the same time she was working for CNN.

KELLY: Right.

KURTZ: That's a conflict as it turns out that could not -- it was a problem that could not be squared.

KELLY: Good to see you, Howie.

KURTZ: My pleasure.

KELLY: You know, these stories, it brings you no joy to cover. But when people behave badly, what are you going to do? Anyway, we would be happy to speak with her again to see what the update is on the second story.

Well, with all of these challenging headlines swirling around the Clinton campaign, what could it mean for polls that are already getting tighter? Stirewalt is here to discuss.

Plus, after we heard democratic operatives bragging about starting violence at the Trump rallies, the Clinton campaign said they had no idea who these guys were. The guys who wind up getting fired.

But tonight there is a new twist to the story.


KELLY: One week from tomorrow. And the race is getting tighter. Roughly two weeks ago, the Real Clear Politics average of polls showed Mrs. Clinton enjoying a seven-point lead. Today that is down to roughly three points. What does that mean?

Stirewalt is here to tell us what it could mean. Does it mean she's going to win?

CHRIS STIREWALT, FOX NEWS DIGITAL POLITICS EDITOR: No. It means she's winning. It also means that about 22 or 23 million people have already voted. The early voting is going on. And I have some very great news for you.

KELLY: Tell me.

STIREWALT: The first polls close in seven days, 23 hours and 13 minutes.

KELLY: Praise Jesus.

STIREWALT: You're almost home.

KELLY: So, the early vote and how many have voted?

STIREWALT: Twenty two to 24 million people probably...


KELLY: Both sides come out and kind of say we're winning that. Do we know what's true?

STIREWALT: We know democrats are doing pretty well. We know republicans in places like Nevada are starting to catch up a little bit. But overall, if I had to give the nod to how many registered voters from which parties are doing better, I would give it to the democrats at this point, especially in North Carolina.

KELLY: What -- people want to know whether the FBI's announcement on Friday is going to change this race, what's your take?

STIREWALT: When you get to the end of the election people lose their minds. They become the craziness...


KELLY: Yes, we've seen that.

STIREWALT: ... the craziness goes from a regular crazy of the election and especially in this which has been the most hideous election to which our system has ever subjected the decent citizens of this nation.


STIREWALT: As we get down to the end the lunacy of the partisan has becomes even frothier and the eyes bulge out of their heads. So, they hear. And Hillary Clinton and it doesn't just I'm sending a letter to Congress and we found some emails that's the Huma backed up her phone. It's she's indicted, she's going to jail, it's over. She's in jail now.

And that's Friday, and then today it is Trump is a Putin agent, he's owned by the Kremlin. It's all over. And everybody freaks out. And the answer is these things move among hard partisans. But when we look at the polls, you know what we see?

KELLY: What?

STIREWALT: The stuff with Huma and the Weiner iPhone, the Weiner phone, have certainly increased intensity among hard partisans for republicans, and in democrats with a little data that we have it doesn't move the top line.

KELLY: What about the Washington Post poll and ABC News, she was ahead 12 points in this tracking poll eight days ago, and now she's just three points ahead.

STIREWALT: If we look at an average of delicious and excellent well-made polls, and we go back two weeks ago she was way out, she was eight, nine points up and she starts to give that back.

And the reason she was giving it back had nothing to do with this because it hadn't happened yet. She's giving it back because you get closer to the end and the republicans were starting to come home for Donald Trump. They were sucking it up, and the resistant republicans were saying I hate her too much to vote for her.

KELLY: Last question, is there any way November 8th doesn't come and somehow we just could stuck in this weird perpetuity that we're -- we do this forever more?

STIREWALT: This is a dark -- this is a black mirror episode and we will spend the rest of our lives in that studio?

KELLY: Yes. And the upside.

STIREWALT: It is possible.

KELLY: OK. All right. Well, I don't feel any better. Thank you, Stirewalt.

Up next, more WikiLeaks. Don't go away.


KELLY: New details tonight on yet another WikiLeaks email that could reveal troubling connections between the Clinton campaign and folks they're not supposed to be talking to.

Trace Gallagher has the latest from L.A. Trace?

GALLAGHER: Megyn, Bob Creamer is the democratic consultant caught on the Project Veritas tapes talking about how to stir up violence at Trump rallies. Creamer who visited the White House 342 times was also heard on tape discussing his daily conference calls with the Clinton campaign in saying that Hillary Clinton herself approved of his tactics.

Now a leaked email appears to link Creamer with Clinton campaign manager Robby Mook. The 2015 email written by the founder of a progressive group and addressed to a former Clinton campaign aide says, quote, "I just wanted to pass along this note I sent to Bob Creamer, who as you may know is consulting for the DNC and is close to Robby Mook."

On CNN, Mook was asked if whether the Clinton campaign had any knowledge of professional agitators fermenting violence at Trump rallies. Watch.


ROBBY MOOK, HILLARY CLINTON'S CAMPAIGN MANAGER: These individuals no longer have a relationship with the DNC. They've never had a relationship with the Clinton campaign. And my understanding is the events that are referenced happened I think in February of last year. They did not have a contract with the DNC until June.


GALLAGHER: Except it was three months after that June contract he just mentioned when this 69-year-old woman on oxygen claims she was attacked by a Trump supporter. After the Project Veritas tapes went public the woman backed for claim.

The Clinton campaign continues to maintain the tapes were edited out of context, although the tapes lead to Creamer's resignation and another operative being let go. Megyn?

KELLY: Trace, thank you. We'll be right back.


KELLY: So are you a doodler? I am a doodler and people are mocking me for my doodles. I'm like, yes, well, thank you. What do you think, Sean? Hannity is here.


KELLY: It got this fancy. Little heart.

HANNITY: Save that for charity.

KELLY: Really? Does somebody want this?


KELLY: All right. Highest bidder, it could be yours. Love, hearts and understanding. Now here's Sean.

Content and Programming Copyright 2016 Fox News Network, LLC. ALL RIGHTS RESERVED. Copyright 2016 CQ-Roll Call, Inc. All materials herein are protected by United States copyright law and may not be reproduced, distributed, transmitted, displayed, published or broadcast without the prior written permission of CQ-Roll Call. You may not alter or remove any trademark, copyright or other notice from copies of the content.