KELLY FILE

How exactly can the GOP dismantle ObamaCare?; Omarosa discusses new role in Trump White House

This is a rush transcript from "The Kelly File," January 4, 2017. This copy may not be in its final form and may be updated.

MEGYN KELLY, HOST: Breaking tonight, weeks after leaks reports accusing Russia of meddling in the 2016 elections, the U.S. intelligence community finally ready to reveal its finding. Allegedly detailing the Kremlin's dirty trick.

Welcome to "The Kelly File," everyone, I am Megyn Kelly. This news breaking just a short time ago as early as tomorrow, President Obama will receive the repots, then it goes to President-elect Donald Trump. Mr. Trump is calling on the intelligence experts to prove the allegations that Russia hacked the Democrats computer systems, then today Mr. Trump went a step further appearing beside with WikiLeaks Chief Julian Assange who claims that Russia did not give him the hack material.

The President-elect tweeting, "Julian Assange said Russians did not give him the info!" He is referring to Sean Hannity's interview with Julian Assange. That set-off some Republican members of Congress, Republicans I say, who said that Assange is not a man to be trusted.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: I have a lot more faith in our intelligence officers, serving around the world, very smart and experienced analyst that we have here in the nation's capital than I do in people like Julian Assange, I can tell you that much.

REP. PAUL RYAN, R-WIS., SPEAKER OF THE HOUSE: I think the guy is a sycophant for Russia. He leaks, he steals data and compromises National Security.

(END VIDEO CLIP)

KELLY: Today on Capitol Hill, Vice President-elect Mike Pence coming to Mr. Trump's defense and even taking his own swipe at the intelligence experts.

(BEGIN VIDEO CLIP)

VICE-PRESIDENT ELECT MIKE PENCE: I think that the President-elect has expressed his very sincere and healthy American skepticism about intelligence conclusions. Given some of the intelligence failures of recent years, the President-elect has made it clear to the American people that he is skeptical about conclusions. From the bureaucracy and I think the American people here loud and clear.

(END VIDEO CLIP)

KELLY: Joining us to weigh in on all of this, former White House Press Secretary Dana Perino. And Bill Bennett who has advised President-elect Donald Trump.

But first, to our chief intelligence correspondent Catherine Herridge on this new intelligence report. Catherine?

CATHERINE HERRIDGE, FOX NEWS CHIEF INTELLIGENCE CORRESPONDENT: Megyn, tonight we're confirming new information about the intelligence report that investigates foreign meddling. And American elections going back to 2008.  The report is more than 50 pages in length. And there are two versions, a classified for Mr. Obama who gets the findings first in an unclassified version that should be public early next week. In a PBS interview, the CIA director is now waiting until tomorrow to make his case.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: Do you think the motive of the Russians was to help Donald Trump?

JOHN BRENNAN, CIA DIRECTOR: Again, that is one of the things that we addressed inside the report. I'm not going to address that --  

(END VIDEO CLIP)

HERRIDGE: And the Fox News interviewed Julian Assange, the head of WikiLeaks that his source for the DNC and Clinton campaign e-mails was not the Russian government and Assange claimed the -- of Clinton campaign manager John Podesta's emails was merely child's play which did not require the skill of a foreign intelligence service.

(BEGIN VIDEO CLIP)

JULIAN ASSANGE, WIKILEAKS FOUNDER: Podesta gave out, that his password was the word password. His own staff said this email that you received, this is totally legitimate. So, this is something a 14-year-old kid could have hacked.

(END VIDEO CLIP)

HERRIDGE: The new Senate Minority Leader Chuck Schumer told MSNBC that Mr. Trump is, quote, "Really dumb taking on the intelligence community and its conclusions because spies have so many clever ways to get back at you" --  Megyn.

KELLY: Wow! That's food for thoughts. Catherine, great to see you.

HERRIDGE: It is. You're welcome.

KELLY: Joining me now, Dana Perino, a former White House press secretary for President George W. Bush and co-host of "The Five." Good to see you.

DANA PERINO, FORMER WHITE HOUSE PRESS SECRETARY: Thank you.

KELLY: That is a scary thought but it is true. Who wants to mess with this spy?

PERINO: Yes.

KELLY: Let's just draw a distinction because I think most Americans think well of our intelligence agencies, and say, wait a minute, why would Donald Trump be picking a fight with them? But it's not all, you know, men and women, assets, boots on the ground. There are some political people at the organization who might be saying things with which Donald Trump could take legitimate issue here.

PERINO: Well, I think it's with blessed relief that the intelligence community is going to brief the president and then President-elect and then some sort of document becomes public to all of us next week because this has gone on for about five weeks.

KELLY: Right. Just the election.

PERINO: And some evidence, some proof, some conclusion. I actually think it would be interesting for the President and the President-elect to get the briefing together. So that everybody hears the same words and at the same meeting and come out of it. I think it's extremely unfortunate to have a situation where you have the President-elect at odds with the intelligence community. I think almost unnecessarily so, heading into the inauguration which is at 15 days away.

KELLY: But Trump is irritated that they're assigning motives, right? I mean, he seems to be, yes, he is disputing that it was the Russians based on Julian Assange's comments. But he also doesn't -- he doesn't like that they -- he feels they got ahead of their skis and said, and they did it to help Donald Trump. Because it feels like he legitimizes his election.

PERINO: And I think that he is right to have that concern and you did it here that there were political people, political appointees that were on their way out the door. That push is narrative. And I do think the Democrats are trying to calm themselves and wrap themselves in this cocoon of, we lost the election because of Podesta's emails.

KELLY: Right.

PERINO: And Assange, who I don't trust it all, he's right when he said that Podesta had no security.

KELLY: OMG, if your password is password, change it right now, right now, in the commercial break. Change it.

PERINO: And don't change it to password 1234.

KELLY: And don't change it to corky.

PERINO: Yes. No word either. So, everybody has a little bit of truth in this. And the other thing, and there is a report out today that Donald Trump's administration will change the director of the National Intelligence Office.

KELLY: Yes.

PERINO: Now, I think that those changes were long in the works and probably really good because the office has good intentions, hasn't work out that well in practice, but --

KELLY: And Donald Trump is being advised by Michael Flynn, who knows this whole thing.

PERINO: He knows the whole thing. Right.

KELLY: He knows that there's a lot of bureaucracies and may not be necessary, maybe more, you know, there sort of assuage politicians than to protect Americans. Go ahead.

PERINO: Right. And Democrats are trying -- will then connect -- they'll say, well Donald Trump's -- about the Russia issue. So therefore he is going to change and punish the intelligence community by changing the -- I don't think that that is the case. Everything is getting a little bit too muddled. It's be wildering for Americans and guess, the intelligence community deserve support and I think some of the changes that they're planning to make at the DNI are good ones for the community.

KELLY: Okay. But let's talk about the actual thing that Donald Trump is a saying which is, he's accepting Carte Blanche that the Russians did not hack the DNC. And we don't know that.

PERINO: No, we don't.

KELLY: We don't know that.

PERINO: You know who else doesn't know that?

KELLY: Who?

PERINO: Assange doesn't know that.

KELLY: Well, let me just say this. This is an interesting exchange he had with Hannity. Hannity asked him, 100 percent, you did not get it from Russia. Yes, he says, correct.  And Hannity says, or anybody associated with Russia? And Assange says, we can't say and we have said repeatedly that our source is not the Russian government. It is not a state party.  So he would not go as far as to say anybody associated with Russia. That's where the hairy split. That tells you something.

PERINO: And he may not know.

KELLY: Okay. So it wasn't Vladimir Putin. But --

PERINO: Miss Dmitri.

KELLY: He's not dumb enough to do it himself or to have one of his top lieutenants do it.

PERINO: Right.

KELLY: We don't really have any answers yet.

PERINO: Right.

KELLY: We don't really have any answers yet.

PERINO: Right.

KELLY: So, as we point out, Friday is just a few days away.

PERINO: We will get the briefing.

KELLY: Does Donald Trump accept it? Do you think that the Intel Agencies there say, I'm sorry to tell you this sir, but it was Russia.

PERINO: I think he may accept it. But I think he is also right to continue to say that the Democrats, that this notion that Russia is interfering was actually the thing that helped get Donald Trump elected.

KELLY: Yes. That's why we have to draw the line.

PERINO: That logic doesn't actually flow for me. I don't see it there and I think he's right to push back on that.

KELLY: And John Brennan says, that that's going to be addressed in this report, that we're all going to see --

PERINO: We'll see. I hope it's definitive.

KELLY: The motive. Dana, great to see you.

PERINO: Thank you.

KELLY: Joining us now with more. Bill Bennett, Fox News contributor, former education secretary and chairman of the conservative leaders for education.

Bill, great to see you.

BILL BENNETT, FOX NEWS CONTRIBUTOR: Thank you.

KELLY: So let's start with that. The Democrats believe -- not all of them but they believe that -- some are pushing is that Putin wanted Trump elected because he thought he would be a pushover, he thinks he is friendly towards Putin because Putin flatters him. Donald Trump replies well to flattery. Do you buy that?

BENNETT: Yes, that is the unstated premise. Good for you, Megyn. This is the notion that the Democrats want to push. And you can hear that in a month or two or three months while Trump is the president but that's because the Russians got him in there. If you think about it, step back.  First of all, we have no evidence that any votes has changed because of any Russian interference. And I believe the Russians were trying to hack in.

KELLY: So you don't believe necessarily Julian Assange when he says, no, it wasn't Russia.

BENNETT: I don't believe the Russians. I don't believe Julian Assange.  I'd call that what we say in philosophy insufficient options. You know, and Julian Assange says it wasn't the Russian government. Good distinctions you made. It could have been someone that said I'm not the Russian government.

KELLY: Uh-hm.

BENNETT: You know, I mean, how does he know? It's very complicated.  Thanks goodness we're going to get resolution of this. But back to the larger question, why all this fuss? Because I think the Democrats want to suggest this election was somehow illegitimate because the Russians wanted Trump to win. But if you step back and think about it, why would the Russians want Trump to win?

He has promised to rebuild the military and the strategic arsenal. He has promised energy independence, both very bad. Thanks for the Russians.  Second point. When have the Russians thrived in the last five or six years, have they gotten weaker or stronger? Obama and Clinton have been very good for Russian power. Trump will not be good for Russian power.  So, I think the basic premise undercuts the notion here that the liberals or Democrats tried to --

KELLY: Okay. But in the Democrats defense, if the Russians messed with our election by, you know, hacking Podesta, hacking the DNC, just for kicks, right? Let's say, it wasn't to help Donald Trump but it was just a mess with us. That is a huge deal. Right? I mean, we do need to know who did it.

BENNETT: Sure. Sure.

KELLY: There do need to be consequences to it.

BENNETT: Absolutely.

KELLY: And can we have our president rejecting the assessment of the 17 Intel agencies if they say, I know you love Vladimir Putin or you want to get along with him, but he did something bad that you're going to have to deal with.

BENNETT: Right, I don't think he's rejected it. He hasn't rejected outright. He has raised questions. He said, it could be the Russian, it could be Chinese, it could be a guy found there lying in bed.

KELLY: But he keeps talking about Assange. He says, it wasn't the Russians. I mean, he certainly sounds like he is a believer.

BENNETT: I know, but we will find out in a day or two. Look, they have some skepticism about the intelligence community. It's okay. Look, I had briefings from the intelligence community when I was a drug czar, some of them are right, some of them were not. Dana pointed out that you may have some who political appointees trying to influence. Remember David Nunez, Megyn, he was trying to have hearing to get all the intelligence agencies to deliver what it is they had, and they canceled the hearing?

KELLY: Yes.

BENNETT: Thanks goodness! In 48 hours, we may get to the final truths of this. Sunlight is the best disinfectant, Justice Brandeis said. Let's see it all and then we'll know. I like the idea of the two of them getting briefed together. That would be an interesting notion.

KELLY: Can you imagine how awkward that would be? Like, if they spoke over each other -- like the poor Intel briefers like, uh, uh. Anyway, great to see you, Bill.

BENNETT: Thank you. Good to see you.

KELLY: Breaking tonight, four people are under arrest after a truly ugly video surfaces out of Chicago. A young man tied up, his mouth taped shut.  We've blurred it in part here. He is kicked, beaten, and threatened with a knife by a group of people shouting F-Trump, and F-white people.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: (Bleep) Donald Trump! (Bleep) White people!

(END VIDEO CLIP)

KELLY: What's worse is the police say the man being beaten is mentally disabled. We are gathering more information right now, the police have just spoken out about this publicly. We will tell you what they said shortly.

Plus, President Obama and Republican leaders went head to head in Capitol today in a new war over ObamaCare. It was a very interesting day on Capitol Hill. And this one affects millions of patients. This next battle. Millions of taxpayers. And everyone who basically goes to the doctor. Two of America's top experts on this are next on what is likely to happen here.

And then new fighting about the folks being discussed for the U.S. Supreme Court.

Judge Andrew Napolitano is just ahead on what's behind the controversy.

(BEGIN VIDEO CLIP)

SEN. MITCH MCCONNELL, R-KY., MAJORITY LEADER: To not confirm a Supreme Court nominee at all. I think that is something the American people simply will not tolerate and we will be looking forward to receiving a Supreme Court nomination and moving forward on it.

(END VIDEO CLIP)

KELLY: Developing tonight, a new fallout after President Obama and Republican leaders went head to head on Capitol Hill today over the faith of ObamaCare. President Obama speaking to Congressional Democrats behind closed doors this afternoon, imploring them not to, quote, "Rescue Republicans" by helping the effort to replace the law.

At the same time, Vice President-elect Mike Pence was promising members that repealing the law and then replacing it with a better system will be the new administration's first order of business. So, what does all of this mean for ObamaCare future and for you?

Trace Gallagher has that report live in our West Coast Newsroom. Trace?

TRACE GALLAGHER, FOX NEWS CORRESPONDENT: Megyn, any doubts about ObamaCare being the battle of the year were erased today as leaders of both parties tugged on the rope. In an effort to save his signature law, President Obama went to Capitol Hill to fire up his team. But the President knows full well his party does not have the votes to block Republicans, so instead, he is advising Democratic lawmakers not to rescue them. By helping to pass replacement measures. Mr. Obama is also recommending that any changes to the law should now be labeled TrumpCare and at some Democratic lawmakers have adopted a spin on Trump's Make America Great Again slogan by pushing the phrase, "Make America Sick Again." Watch.

(BEGIN VIDEO CLIP)

SEN. CHUCK SCHUMER, D-N.Y., SENATE MINORITY LEADER: Republicans will soon learn that you can't keep the good parts of the ACA and remove the rest of the law and still have it work.

(END VIDEO CLIP)

GALLAGHER: The Republicans say, they are planning on doing just that.  Today, GOP lawmakers also huddled on Capitol Hill to lay out plans to repeal and replace the Affordable Care Act. With Vice President-elect Mike Pence vowing that Donald Trump is a man of his word. Listen.

(BEGIN VIDEO CLIP)

PENCE: Today our message is very simple. Working with the leadership here in the House and the Senate, we are going to be in the promise keeping business.

(END VIDEO CLIP)

GALLAGHER: And the President-elect weighed in on twitter reminding his party to not let Democrats off the hook for ObamaCare saying, quote, "Republicans must be careful and that the Dems owned the failed ObamaCare disaster with its poor coverage and massive premium increases." Top Republican like House Speaker Paul Ryan and Senator Rand Paul are also warning their colleagues not to pull the rag out on people. In other words, before you repeal, make sure you can replace -- Megyn.

KELLY: Uh-hm. Trace, thank you. Well Republicans maybe vowing to repeal ObamaCare but with no replacement lined up, what would happen next?

Avik Roy is the Forbes opinion editor and President of the Foundation for Research on Equal Opportunity. And Austan Goolsbee is President Obama's former chief economist. Great to see you both.

So that would be a pickle. Right? I mean, you are the person I think knows the most about this stuff. We've been talking to you about ObamaCare since I don't know when. Since Obama was like a baby. And you tell me if they manage to repeal and they are not able to replace, what happens?

AVIK ROY, OPINION EDITOR, FORBES: Well, Megyn, there is one word in this whole ObamaCare fight that matters more than any other. And that's the filibuster. I've done something really special tonight, Megyn. I've stolen Karl Rove's whiteboard. I got it right here.

KELLY: Oh, this is good.

ROY: Here's something that we are going to show you. That the thing that ObamaCare bid and had in 2009 and 2010, when Democrats controlled the Senate, they had 60 votes to pass the key parts of ObamaCare. Republicans this time around only has 52 votes, and that means, yes, they can defund ObamaCare, they can take some of the fund away from ObamaCare. But the thing that you and I have talked about so many times on the show, Megyn, is how the regulations in ObamaCare are driving up the premiums.

And if you don't reform the regulations, you can't really repeal and replace ObamaCare in full. So how are Republicans going to get 60 votes that they need to impose or institute their own reforms for their health care system? That's going to be a challenge. And what I've argued, is that the way to do it is to give the Democrats something they want. Cover as many people as possible. But do it in a consumer driven way in which people have actual choice, in the kind of insurance plans they can buy.

KELLY: So, you heard it there, Austan, they need Democrat buy-in if they want to do it right and if they don't do it right, we are back to Trump's warning which is, be careful because right now this is hanging around the necks of Democrats. To the extent ObamaCare is not working, and it could soon be a Republican problem.

AUSTAN GOOLSBEE, FORMER CHIEF ECONOMIST TO PRESIDENT OBAMA: Oh, it is a Republican problem, are you kidding? Look, Megyn, we talked about this throughout the campaign, that Donald Trump was proposing things that contradicted -- he contradicted himself, he wanted the key parts of the law, he wanted to say, get rid of the whole law and experts from both sides kept saying, wait a minute, it doesn't make sense.

For him to do what he's saying would blow the system up. And now he is actually going to be the president and they are trying to sort it out and they are not going to be able to. The problem that Obama had is when you do anything in the health care system, you then own everyone's problems, everything everyone hates about that.

KELLY: Everything that has ever happened in the health care system, that's on you.

GOOLSBEE: All of that stuff. They attribute to ObamaCare, even things that have nothing to do with ObamaCare. And now the Republicans are about to do the reverse. If they get rid of ObamaCare, if they fundamentally alter it, anybody that's complaining about the health care system will be transformed into, oh, what did you think was going to happen when you destroyed ObamaCare?

KELLY: Uh-hm. And yet, they had to do something. Like they have to do something. Trump ran on a promise that he would. These Republicans are from districts that want it. Repealed and replace. And there is a real question about whether Senator Schumer is right, you can't take away -- you can't still have the good stuff, the universal coverage, you know, whatever. The coverage of pre-existing conditions -- without he didn't say it, but without the bad stuff. The mandates.

ROY: Yes. And this is where Democrats in my view are totally wrong. In my Think Tank, the foundation for Research on Equal Opportunity. You can go to our website, FreeApp.org. We have published a plan called transcending ObamaCare that does everything the Democrats claim to support.  It covers more people, 12 million more people than ObamaCare but at 20 percent lower premiums.

With much more choice, much more access. It can be done. This idea that ObamaCare is the only way to make sure that people have access to health insurance coverage is not true. If you give people a choice, if you give Americans control again of their own health care dollars, they'll be able to choose the plans that are right for them at much lower cost than ObamaCare does. So I don't think it's an either or choice.

KELLY: All right. Well, I think it's interesting that Donald Trump interviewed and sat down with Dr. Ezekiel Emanuel who -- he really knows a lot about -- New York attacks. And listen to him. He's got a lot of thoughts on how you could potentially keep the good stuff while, you know, while getting rid of the mandate although he doesn't love that idea. Great to see you both.

ROY: Thank you, Megyn.

GOOLSBEE: Good to see you, Megyn.

KELLY: So, it could turn into the biggest fight of President Trump's first term. And Judge Napolitano is next on why the new controversy exists now over filling a Supreme Court seat.

Wait until you hear the reversal that the Democrats have done on this. And then Karl Rove and Mo Elleithee will join us with the debate over which way this Supreme Court employment likely to go.

Plus, Mr. Trump may have fired her from "The Apprentice" but he just hired her at the White House. Tonight, Omarosa is here for her first interviews since being top to work in the West Wing.

(COMMERCIAL BREAK)

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

KELLY: Well, one of the earliest decisions from President-elect Donald Trump will be when he becomes president, the selection of a Supreme Court justice. To fill the vacancy created by Antonin Scalia's death last February. While Mr. Trump's final pick has yet to be announced, the issue was already creating controversy.

And Shannon Bream was reporting from Washington on why.

SHANNON BREAM, FOX NEWS CORRESPONDENT: Whoever gets the nod from the President-elect would expect criticism from the left but there are a growing concerns from some on the right. A coalition of pro-life groups and leaders has sent a letter saying they are worried about some of the candidates on the list of 21 potential picks Mr. Trump has released.  Quote, "We urge you not to consider candidates lacing a pro-life record.  Several of these judges on the list have even written or spoken in ways that are at odds with the pro-life position."

Well, a Trump transition team says, not to worry, all are being thoroughly vetted. Here's Leonard Leo, a transition member who is advising Mr. Trump on the contenders.

(BEGIN VIDEO CLIP)

LEONARD LEO, TRUMP TRANSITION TEAM MEMBER: There is no one particular statement or comment by any of this perspective nominees that can be viewed in isolation. So, we certainly appreciate what the pro-life community and other groups are doing to weigh in on these various nominees and all of that information is being taken into consideration very, very carefully.

(END VIDEO CLIP)

BREAM: First, liberty institute group that takes on religious freedom legal fights has been pouring through all the opinions of the judges on Mr. Trump's list and says, there is a way to calm conservative fears.

(BEGIN VIDEO CLIP)

KELLY SHACKELFORD, CEO, FIRST LIBERTY INSTITUTE: There are many other excellent judges on the list that have no red flags and in fact are very solid judicial background that would make excellent choices at the U.S. Supreme Court.

(END VIDEO CLIP)

BREAM: It will take 60 votes in the Senate to get any Supreme Court nominee passed the first procedural hurdles. So, unless something changes, Republicans will need some help from across the aisle -- Megyn.

KELLY: Shannon, thank you. Well, my next guest has consulted with President-elect Trump about his eventual pick for the Supreme Court. Judge Andrew Napolitano is our FOX News senior judicial analyst. So, who is it going to be?

JUDGE ANDREW NAPOLITANO, FOX NEWS SENIOR JUDICIAL ANALYST: Well, I don't know who it's going to be. But he wants a person most like Justice Scalia.  Not necessarily in terms of temperament and personality --

KELLY: Too bad because --

(CROSSTALK)

NAPOLITANO: Yes he was, but in terms of the idea that the meaning of the constitution was fixed at the time it was ratified. A theory generally called originalism. This is not just something in the weeds. It profoundly affects how judges rule. Justice Ginsburg for example believes that constitution changes to adapt to political needs.

KELLY: Living breathing document.

NAPOLITANO: Correct. President-Elect Trump rejects that and takes the Scalia view that if the constitution is going to change, that states is going to ratify amendments, because that is the only way it can change.

KELLY: that is Justice Scalia use to say from the bench. He used to say, you want to say that there is a constitutional right to an abortion or to have certain kinds of relations and so on.

NAPOLITANO: Right.

KELLY: Why do you want nine guys or gals in robes up here to make that decision? You go get the American people, that an amendment and make it clear that the constitutional rights.

NAPOLITANO: So he is looking for a person who generally accepts that view of judging from a Supreme Court.

KELLY: Now in your view, will the Democrats ever vote to confirm another originalist?

NAPOLITANO: No. And the reason I can say that because they said so today, Senator Schumer on another network said the unthinkable. After ripping into the Republicans for their refusal of hearings of Merrick Garland, they prevalent call for a judge that somebody nominated in the lame-duck part of President Obama's presidency. He has suggested that the Democrats might engage in enough parliamentary tricks to prevent President-Elect from President's Trump nominee from even being voted upon in the senate until the 2018 congressional election. When the Democrats think, they will control the senate.

KELLY: We are going to talk about his flip-flop his incredible, obvious flip-flop in a minute. But what would that mean for the Supreme Court, if they were stuck with eight justices for the next couple years?

NAPOLITANO: Well a tie vote in the Supreme Court, which doesn't always happen but has happened, means that the decision below becomes the law.  It's not a ruling on the merit. It is just a refusal to disturb that decision below. But I can tell you that the Supreme Court does want a ninth member, no matter who it is. Because they feel they have more integrity when they have a full membership. President Trump believes that.

KELLY: When he was confirmed in the '80s, right?

NAPOLITANO: Yes.

KELLY: It is all part of the nation, still divided government, it was confirmed I think it was in 98-0.

NAPOLITANO: Correct.

KELLY: He doesn't have anything against it. It was two people were missing.

NAPOLITANO: Correct.

KELLY: It wasn't that there were fewer liberals or Democrats.

NAPOLITANO: It was a different time, it was more civility. It doesn't matter, no matter who it is -- that this will happen that time.

KELLY: Great to see you Judge.

NAPOLITANO: Likewise.

KELLY: Well the Judge has mention. Senate Minority leader Chuck Schumer is already threatening to keep the seat vacant for the duration of Mr. Trump's presidency. I'm sure he always felt this way. Well, wait, wait, it's a dramatic turn actually, from the position taken by the New York senator, just last year when it was a Democratic president choosing the nominee.

(BEGIN VIDEO CLIP)

CHUCK SCHUMER, SENATE MINORITY LEADER: He doesn't even know who the president is going to propose and he said no, we are not having hearings.  We are not going to forward to lead the leave the Supreme Court vacant for 300 days in a divided time. This kind of obstructionism is going to last and you know, we Democrats did not do this. It is hard for me to imagine a nominee that Donald Trump would choose that would get the Republican and support that we can support. So you are right.

KELLY: So you would do your best to hold the seat open?

SCHUMER: Absolutely.

(END VIDEO CLIP)

KELLY: And they wonder why the approval rings are so very low. Joining me now Karl Rove, former Deputy Chief of Staff under President Georg W. Bush and a Fox News Political Contributor and Mo Elleithee founding Director of Georgetown University Institute of Politics and Public Service. Let me start with you on this one, Mo, as a Democrat. That is my question, to you.

MOE ELLEITHEE, EXECUTIVE DIRECTOR OF GEORGETOWN UNIVERSITY INSTITUTE OF POLITICS: You've got to love congress. Both sides have gone back and forth on this. I listen to Mitch McConnell's response to that today and he sounded like Chuck Schumer did back then, right? You know, I think there is one important distinction here. I'm going to come around and knock my party a little bit and a second. But I think there's one important distinction between this and what the Republicans did in the with the Garland nomination. They said we are not going to even entertain or listen to a hearing on anybody that President Obama nominates. They said he shouldn't even make a nomination. That is not what Chuck Schumer is saying, what he is saying is we don't want someone who is going to be outside the mainstream. He is not saying we won't hold a hearing, she saying we probably won't vote for someone on less it's in the mainstream.  It sounds more like a leveraging tool here.

Having said that, they do run the risk of sounding like obstructionist and nobody sounds good whether it is Democrats or Republicans when they sound like obstructionist. I would hope Democrats say more along the lines of this is what we want to see. No different than when Republicans say, we won't support a candidate who is pro-choice. It Democrats say, we are not going to accept someone against the mainstream.

KELLY: You know what Karl, the Republicans say things like that, that is true, but we have a Justice Alanna Cagan and a justice Sonia Sotomayor sitting on the U.S. Supreme Court, nominated by president Obama a Democrat, because Republicans, they did get through, they were not stop and the question is - I understand this has gotten politicized after Robert you get bounced out of they are if you are considered two partisan, but it didn't used to be this way. Is there ever going to be a point where we do what was intended? Which is you look these nominees and you decide whether they are qualified as a U.S. Senator and you don't try to Trump the will of the president who is duly elected by the American people.

KARL ROVE, FORMER SENIOR ADVISOR TO PRESIDENT GEORGE W. BUSH: First of all, let me thank you for inviting me earlier for using my whiteboard, Andrew Jackson in return, so I really appreciated that.

KELLY: Oh, you do get money for that?

ROVE: It was my whiteboard. You think I am going to let him use it free?  I am a free marketer and so is he.

ELLEITHEE: (Inaudible)

(LAUGHTER)

KELLY: I know it used to be rented.

ROVE: Now look, let's put this in a little bit of perspective. For 80 years, no president in their last year has been able to nominate and see confirmed a nominee for the Supreme Court, Democrat or Republican. This has been around for a long time. Joe Biden in June of 1992 said if President George H. Bush nominates anybody, we shouldn't even consider them until after the November elections. You have basically six weeks in order to name somebody, do the background, and hand over all the material, have the hearings. That has never happened at least in the modern era. Chuck Schumer rose this a little bit earlier in July of 2007 and he said if Bush nominates anybody in the last 18 months, we are not going to change.  We are not going to take in to confirm.

KELLY: And he said we should reverse the presumption of confirmation. We should make them prove that they are in the mainstream rather than us having to prove that they are not.

ROVE: Exactly right. And now he changed for last year for political reasons. I write this off largely to playing to the cameras and playing to the base and trying to demonstrate that he is going to be a strong, effective leader for the left-wing Democratic Party. But his problem is in 2018, he is got a lot of Democrats in states like Montana, North Dakota, in Missouri, in Indiana, and Ohio, in West Virginia, who not going to be inclined to march off into San Francisco Bay or live in a tent in Cambridge, Massachusetts. As a result, I think it's going to be very hard to keep up.

KELLY: I will give you the final word, Mo. Go ahead.

ELLEITHEE: Look we just heard a report from Shannon Bream who said, that there is conservatives out there saying, they don't want to entertain a Republican or a nominee who is not pro-life, who is pro-choice. I think it is fair for senators to go in there and say these are the benchmarks by which I will or will not support a nominee, well put them up for a vote, left the senate then have the hearing. Left the senate and have the vote, use whatever benchmark you want to decide what votes you are going to be, but have the vote. That is where I think the Republicans had the bigger problem with the Garland thing done this.

KELLY: I will just give you one set, Tony Sotomayor, confirmed by the senate 68-31. That means she has some bipartisan support, this is how it is going in a direction that I would submit to you is going to be never intended. Good to see you both.

Breaking tonight, we're getting new details on a truly horrifying it attack in Chicago. Filmed and broadcasted on Facebook.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: (BEEP) Donald Trump. (BEEP) white people.

(END VIDEO CLIP)

KELLY: Four people now under arrest. And David Wohl and Richard Fowler are next on why this could become a federal case.

(COMMERCIAL BREAK)

KELLY: Breaking tonight, four people now in custody following a disturbing video posted to Facebook live. It showed a man being held hostage and apparently tortured in Chicago. We warn you. It is disturbing.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: (BEEP) Donald Trump, (BEEP) white people.

(LAUGHTER)

UNIDENTIFIED FEMALE: My sister said this is not funny.

(BEEP)

(END VIDEO CLIP)

KELLY: In moments, we will be joined by David Wohl, and Richard Fowler with reaction, but first we check in with Trace Gallagher who has the new details on the breaking news, Trace.

GALLAGHER: Megyn, police believe the victim who is mentally disabled met a man that he knew and some others on the Chicago suburbs and that they drove him in a stolen car to the west side of Chicago, took him to a home, tied him up, taped his mouth and began torturing him for between 24 and 48 hours. At least 30 minutes of the torture was streamed live on Facebook and the woman who was taping acknowledged that she knows it is streaming live. During the video which as you say is very hard to watch, they cut the man's clothing, saying they are going to get him naked and ask him to kiss the floor. Then they kick him, punch him, cut his scalp and laugh about how much he is bleeding. Throughout the video, you can hear the four suspects going after Donald Trump and white people. Let's watch again.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: (BEEP) Donald Trump, (BEEP) white people.

(LAUGHTER)

UNIDENTIFIED FEMALE: My sister said this is not funny.

(BEEP)

(END VIDEO CLIP)

GALLAGHER: later they ask the victim to say how much he loves black people. Police are now investigating this if this is a possible hate crime and possible kidnapping. They also say it could be a case of young people making stupid decisions. Here is Chicago superintendent Eddie Johnson.

(BEGIN VIDEO CLIP)

EDDIE JOHNSON, CHACAGO SUPERINTENDENT: It is sickening. It makes you wonder what would make individuals treat somebody like that. And also, I have been a cop for 28 years I have seen things that you shouldn't see in a lifetime. It still amazes me how you still see things that you just shouldn't.

(END VIDEO CLIP)

GALLAGHER: Officers found the victim distressed and wandering the streets of west Chicago, they say he is out of the hospital and being interviewed by detectives but it's having a very difficult time communicating. The four suspects including at least two females that are all 18 years old, they remained in custody, Megyn.

KELLY: Trace, thank you. Joining me now David Wohl, who is an attorney and Donald Trump supporter. And Richard Fowler who is a Nationally Syndicated Radio Host and a Fox News Contributor, deeply disturbing, mentally challenged young man tortured for a day? First of all, what kind of crimes are we looking at here, David, and do they include a hate crime increase? Because of the racial undertones and the language we heard.

DAVID WOHL, TRUMP SUPPORTER: The underlying crimes, Megyn are kidnapping, torture, assault with deadly weapon, false imprisonment probably several others. What I found a little bit disturbing is the cops in a press conference, they are not quite sure if this is a hate crime. It is being investigated. That is after viewing this video. Rest assured, if the races were reversed, and they said that they would be fired the next day.  I think Richard would agree with that. So what is going to happen here is, they only prosecuted regarding the state crimes and they leave this hate crime, don't forget who's going to be the attorney general of the United States in a couple months. Jeff Sessions. I guarantee he takes this very seriously. This could easily turn into a federal civil rights prosecution along with several other piggybacking federal crimes. And the hate crime would definitely be included. They need to take this very seriously. They can't allow political correctness to dictate the prosecution here.

KELLY: I don't know, that is obviously a legal call and I know you not here to play the role of legal analyst but what you make of it, a hate crime. You get an aggravation when someone is committing the crime based on race. And in the tape you hear them say [bleep] white people.

RICHARD FOWLER, FOX NEWS CONTRIBUTOR AND SENIOR FELLOW FOR THE NEW LEADERS COUNSEL: This is a hate crime, I don't care what race you are and that is why we have hate crimes in this law. And folks like Joe Biden worked at night and day to keep those laws. Politics aside, it's disgusting and I think, we as a nation, black, white, yellow, blue, orange, purple and have a conversation about how we really come together. How we come together as Christians and Muslims. And have this larger conversation. We are all American. This is sickening.

KELLY: Let me ask you something, does this one act. This disgusting, awful, criminal act is it any sort of a larger statement on who we are as a people? Or are these guys just thugs? Not just young people making stupid decisions, thugs. Who are torturing a man, but does it say something about us as Americans?

FOWLER: Here is the thing, I think what we can read what the election show us, that's why we as Democrats or Republican, our nation is pretty much equally divided. Some people sit on one side. Other people sit on the other. And it's really time for us to come together and really have a conversation about how we work together to keep America being the great country it is. We only thrive when we work together. Some of our best moments are when we work together.

KELLY: You tell me David, whether people who are so depraved that they would they would do this to another human being, one who is mentally challenged no less, can be reached by an effort at the federal or any other level for us to come together.

WOHL: Well you know, Megyn I think you are right about that. The other thing is they think somehow that sort of invoking Trump is sort of their ticket to doing this, because everybody hates Trump. They see celebrities hating on Trump so they put his name on there and somehow that fuels or gives them justification. I will say this. It's another social media problem Megyn. We see social media propelling this. They think it is cool when it on social media, they get their 15 minutes of fame. The good thing is that somebody saw it on social media and apparently reported it. To that extent, it turns out well.

FOWLER: I beg to differ on that. If it wasn't on social media, then we wouldn't be talking about it tonight.

KELLY: I know. That is right. The videos so shocking that it requires attention and it became national news in an instance. Not enough lifting note to end the segment on but an important story. Thank you.

WOHL: Thank you.

FOWLER: Thank you, Megyn.

KELLY: Well Mr. Trump may have fired her from the apprentice, but he has hired her at the White House. And tonight Omarosa, is here for her first interview since tap to work in the West Wing, next.

(COMMERCIAL BREAK)

KELLY: Major news from the President-elect team this week as they make what they are calling the first wave of additional staff announcements.  One may be drawing more attention than others as one woman goes from an unsuccessful contestant on Mr. Trump's reality show two being a role in his White House. Joining me now Omarosa Manigault, who is just name assistant to the president and director of communication from the office of public via son. It is a mouthful. What does it mean?

OMAROSA MANIGAULT, FORMER CONTESTANT ON "THE APPRENTICE" AND DIRECTOR OF AFRICAN-AMERICAN OUTREACH: Public engagement is so important particularly to President-Elect Trump, because he wants to connect with Americans. He wants to hear that there are issues that are in their community. And we are going to fight for them to. So my role is to go into the communities and continue the work that I was already doing on the campaign and with the national diversity coalition.

KELLY: What interesting about you, this is not your first time working in the White House. Last time it was for a Democratic administration, President Al Gore, right?

MANIGAULT: I worked for Gore and I was deputy associate director of presidential personnel for Bill Clinton.

KELLY: And obviously you voted for Bill Clinton.

MANIGAULT: I did in fact.

KELLY: Are you a Barack Obama supporter too?

MANIGAULT: I was, you know traditionally, I think that the Democrats have taken advantage and taken advantage for the African-American vote. We see a huge movement of African-Americans moving to the Republican side. And I am one of them, I'm a Trumplican.

(LAUGHTER)

KELLY: I have not heard that. That is the first time I heard that.

(LAUGHTER)

KELLY: I have to ask you, because we are talking about your role on the White House you made controversy earlier this year on this PBS frontline documentary when you said, well, I will just play the sound bite.

(BEGIN VIDEO CLIP)

MANIGAULT: Every critic, every detractor will have to bow down to President Trump. It's anyone who is ever doubted Donald. Whoever disagreed, whoever challenge him, it is the ultimate revenge to become the most powerful man on the universe.

(END VIDEO CLIP)

MANIGAULT: Wow. It sounds so ominous with the music.

KELLY: It does with the music and the lighting. You want to explain that?

MANIGAULT: Probably four or five months before I joined the campaign. I think if you look back on all of the people that said Donald Trump would never be the president of the United States, who mocked him, who made fun of him, who made wagers, and all of the poser who are wrong, I think out of 30 only two of them had him winning. And yes, this is the moment were people who stop who said that he will never be president have to stop and recognize that Donald Trump will be the 46 president of the United States.

KELLY: But no bowing. Great to see you, Omarosa see you soon.

(COMMERCIAL BREAK)

KELLY: So it is a New Year and time for a little inspiration. That is the one word I hear more than any other about how people feel on reading "Settle for More," my memoir. Sarah Nemon for example tweets, I never felt more capable of chasing my dream, challenging myself, and settling for more.  She thought it is inspirational. Bobby spoke this is a great confidence booster and motivator, like giving one internal strength and fire. I like that, Bobby. Kaitlyn Smith wrote, so inspiring. I laughed, I cried, me too. And it taught me how to be stronger woman. Jake Purtua tweets out, such a great story, especially for young people with big aspirations. I highly recommend it.

So the book has been in the top 10 in The New York Times bestseller list for seven weeks now, and if you would like to read something that might inspire you to be your strongest most fiery self, check it out. "Settle for More." Good night, everybody, see you tomorrow.

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