Turley: Don't remove monuments, make additions to them

Constitutional attorney warns against removing statues on 'The Story'

This is a rush transcript from "The Story," August 24, 2017. This copy may not be in its final form and may be updated.

MARTHA MACCALLUM, "THE STORY" HOST: Good evening, everybody, and welcome to "The Story." I'm Martha MacCallum. Tonight, a look at the increasing influence of online mob rule in politics and in life. The fear that expressing your opinions are not sufficiently wrapping your expressed thoughts in a protective armor of politically correct language, could cause you to be blasted by the online mob, and the impact can be Orwellian-style scorn if you don't play by the rules. It is this kind of fear that led to the reaction to this post by the ACLU.

First, they posted this seemingly innocuous picture of a toddler in an ACLU t-shirt with the words "this is the America we want." The kid has a t- shirt on that says ACLU. This is the America we want. To which this Twitter user, NyashaJunior, responded "A white kid with a flag?" The bandwagon was jumped on by scores of people who were horrified and declared the image of that child was a sort of trigger for their emotions. A reminder of the Charlottesville neo-Nazis, for real.

The ACLU, which has been criticized for saying prior to the violence of these hateful torch holders, that they have the right to March. Quickly, fired back in a panic with this tweet or Kermit the Frog -- how cute is that, right? Saying, "When your Twitter followers keep you in check and remind you that White Supremacy is everywhere." We'll here's the reaction tonight: Katie Pavlich, News Editor for Town Hall and a Fox News contributor; and Juan Williams, Fox News political analyst and co-host of "The Five".

Welcome, you guys. I mean, this is astonishing. And with the ESPN story that we covered earlier this week. I mean, it just draws everyone's attention to how thin-skinned this mob out there in the internet world is, and how quickly they can force everybody to turn on a dime and make sure that they're OK in online mob land. Juan, what do you think about this?

JUAN WILLIAMS, FOX NEWS POLITICAL ANALYST AND HOST: Well, I think that example, much like the ESPN one is driven by people who fear what might come from the online mob, Martha. So, you get knee jerk reactions. People, anticipating that they are going to be skewered subjected to scorn as you described it, and then they say, oh, so we have to react preemptively and do something. And what it does is then it shuts down discussion. For example, that picture of the baby holding the flag, how is that racist? Is that nuts?

That's a wonderful, happy picture. I don't care what race the child was. In fact, they had a subsequent picture of a child in a uniform that had a Nazi symbol on it, the Swastika, and I thought that's not cool. I didn't like that. I think that's negative. You don't want to put that out there. But nonetheless, what you see are people reacting because they fear the mob rule online. And the mob online, by the way, they just delight in putting down someone. It could be someone on the left putting down somebody -- someone on the right putting down their political opponent. There's no discussion. It's just that we're smarter and better than you, and I'm going to one up you by being crueler and meaner in my criticism.

MACCALLUM: Let me show you the further response from the ACLU national. They said though, this is the future the ACL members want. "The future we want is babies in ACLU onesies. For more cute ACLU babies, follow us on Instagram." Katie.

KATIE PAVLICH, NEWS EDITOR, TOWHALL.COM: Loo, we can see this and laugh and think it's funny and it's a joke and they try to respond with the green Kermit the Frog or the blue Kermit the frogs, right? But the real issue here is this is a very dehumanizing situation. For them to look at an innocent child and see neo-Nazism and White Supremacy is disgusting and disturbing, and it sets a precedent that I don't know if we've been through in this country. When you can't even look at a child and say it's just a photo of a child.

Well, the thing that it does is it trivializes real racism, and it trivializes real problems. I mean, Charlottesville is nothing compared to an innocent baby holding an American flag that is put out by an organization that claims to represent everyone. But apparently, they think that innocent White babies can put into the same category as White Supremacism. That is dehumanizing, and abhorrent, and disgusting to me.

MACCALLUM: I want to put up this quote from a Megan McCardle piece today, she says, "It's like we're in world's biggest small town." She's talking about this mob rule. She wrote a great piece on it today. "The content gossip, the prying into your neighbor's business, the small quarrels that blow up into lifelong feuds. And of course, you can't move away. There's only one Internet and we're all stuck here for the rest of our lives."

WILLIAMS: Well, I think she makes the point in this. I thought it was a terrific piece. That proximity used to be the basis in which you would have some kind of one social cohesion, but also then you subjected to social coercion which is mob rule. But now, you don't have to be in proximity. In other words, if you guys want to put me down, you don't have to be sitting next to me and say, Juan, you're a jerk, blah, blah. No, you can get online and do it, and this was your point earlier and you trajected this, anonymously.

So, nobody can say, oh, Martha said that? Wow! Why would Martha -- I like Martha, why would she do that? No, now, Martha's anonymous. And Martha is joined by people of like mind, who may find some common ground with you on one point. But now it's like a little bubble, and you're all shooting off, you know, this invective that can be very damaging to people. It's bullying.

MACCALLUM: It is.

PAVLICH: It's two things: it's either very cowardly, because they know that they're going to have a negative impact on someone's life or they're just spouting off because they feel like they have a platform and not understanding the severe consequences that it would cause to people's careers and their livelihoods.

MACCALLUM: It's hugely effective and it does just that. It can ruin your life, ruin your career, ruin your job based on something that you put out there that received backlash. Thank you so much, you guys.

PAVLICH: Thanks, Martha.

MACCALLUM: Very important discussion that we're going to continue here on "The Story." So, this is part of it as well: the nation, obviously, in a state of heightened sensitivity in the wake of Charlottesville. But it's prompting the question of where does all of this stop? Just a couple of days ago in a dead of night, a statue of Chief Justice Roger Taney was removed from the Maryland State House.

Taney ruled against the restriction of slavery in the Dred Scott case, no doubt a low point in our nation's history. Our next guest says his removal opens the door to erase all kinds of historical figures that could, in effect, sanitize our history. Jonathan Turley is a constitutional law attorney and he joins me now. Jonathan, wrote an excellent piece today as well on this. Jonathan, tell us why you think Taney deserves sort of a broader understanding here?

JONATHAN TURLEY, CONSTITUTIONAL LAW ATTORNEY: Well, I think that the broader understanding has to be how we evaluate history. The Dred Scott decision is a markup on the entire nation as is Civil War, as is slavery. And he clearly played an important part in that, a noble part. But seven justices signed on to that opinion. And there are plenty of opinions throughout history that we now considered to be deeply wrong and troubling. You know, Buck V. Bell was a decision where Oliver Wendell Holmes, one of the most celebrated justices, said the citizens could be involuntarily, you know, operated on so that they could be sterilized so they could not have children.

Lewis Brandeis signed on to that decision; tested the majority of justices. Are we going to start to take statues down, memorials, when we object to those decisions? We had the decision in Bowers V. Hardwick which was 5-4, which said that homosexuality could be criminalized. Today, many of us view that decision. I did at the time as deeply wrong and troubling. Sandra Day O'Connor signed off on that opinion. Do we take those memorials down? So, the question is: are we really going to remove those monuments to justices who ruled in ways that we now find quite troubling, or are we going to add to those memorials information like what's being done at the Jefferson Memorial that there will be an addition placed on Jefferson Memorial saying that he was a slave owner. And that is one of his great contradictions of Thomas Jefferson.

MACCALLUM: It's a great point because, you know, in many ways, adding to these monuments is what becomes more of a history lesson. And you know, you think about the Taney decision and Dred Scott, which as you point out, when you read the language of it as, you know, it's obviously from a very different era, and it's reprehensible in its approach to the people of this country. However, you also pointed out that we probably wouldn't have had the Civil War without the Dred Scott decision. So, these are the moments in history that push forward the steps that bring us in our evolution to where we are.

TURLEY: Yes. And Taney's words are deeply upsetting. Even at the time, there was a dissent in that case that redeemed the court to some degree. Taney actually viewed it as a state's rights issue. As did obviously, virtually, all the other justices on the court. He himself freed his slaves and gave pensions to the slaves that he inherited. But that doesn't mean he wasn't a racist. He did not join the south. He stayed with the north during the Civil War.

He was viewed, however, by Abraham Lincoln as one of his opponents. And all that creates this mix of history that's not easily divided between heroes and villains, but we can learn a lot from it. You know, this statue was there for 150 years. I actually think that kids could learn a lot more by going to the statue, and saying this is someone who wrote something that was terribly wrong.

MACCALLUM: Yes. We learn from the mistakes of the past and the complicated history that brought us to where we are today. Jonathan Turley, thank you so very much. Good to see you as always.

TURLEY: Thanks, Martha.

MACCALLUM: So, still ahead tonight in the wake of Charlottesville, a United Nations panel is branding the whole United States as a place where people need to be very concerned that this is a racist nation. Ambassador John Bolton is here with his message for the U.N.: stay out of the U.S. affairs.

And earlier this week, Marc Thiessen wrote a piece advising the president not to attack his fellow Republicans like Jeff Flake. That column caught the eye of Flake's primary opponent, Kelli Ward, and now her chief strategist Eric Beech is here to defend her and take a mark on coming up.

Plus, a big loss for religious freedom. A Ninth Circuit Court judge ruling a football coach cannot pray on the field. That coach whose story has gotten a ton of attention, and the decision is now down, joins me coming up next.

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UNIDENTIFIED MALE: When they start taking my rights away too that I can't pray in public, it becomes a whole different thing.

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MACCALLUM: So, President Trump re-igniting his battle with Republican leadership this morning. Tweeting, "I requested that Mitch M. and Paul R. tie the debt ceiling legislation into the popular V.A. bill, which just passed, for easy approval. They didn't do it, so now we have a big deal with Dems holding them up as usual on debt ceiling approval. It could've been so easy; now a mess." Chief national correspondent Ed Henry joins me live from the White House with back story on this. Hi, Ed.

ED HENRY, FOX NEWS CHANNEL CHIEF NATIONAL CORRESPONDENT: Well, that's right. Good to see you, Martha. It's not just the debt ceiling fight that Washington is gearing up for. I'm pegging up tonight that we're going to see President Trump, in the days ahead, taking on a much bigger role in publicly selling tax reform -- something we did not see with healthcare. That is due in part to the fact that Hope Hicks is now the acting communications director, someone very senior who can get the president more involved.

I'm told Hick has now taken former Fox News Contributor, Tony Sayegh, a Top Treasury Department official, indeed held him to the White House to focus on building public support for tax reform. But remember, the president is often his own communications chief. And his attacks on Republicans send the message to his base, he's not part of the swamp, but it complicates the push for his agenda.

The president charging Arizona Senator Jeff Flake, is weak on the border. That could hurt a vulnerable Republican in the mid-terms. So, the president is betting his warm words for Dr. Kelli Ward, could give him a more reliable conservative vote if she beats Flake in a primary. Today, the president had another tweet. He said, "The only problem I have with Mitch McConnell is that after hearing repeal and replace for seven years, he failed. That should never have happened."

Now, while McConnell tried to patch things up today, Sarah Huckabee Sanders did not seem as accommodating when a reporter asked about Republican Bob Corker recently charging the president has not shown the stability to govern.

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SEN. MITCH MCCONNELL, R-KY, SENATE MAJORITY LEADER: This new administration in Washington and this Congress is interested in getting America growing again. Put another way, taking our foot off the brake and putting it on the accelerator.

UNIDENTIFIED MALE: Do you have any response to that?

SARAH HUCKABEE SANDERS, WHITE HOUSE PRESS SECRETARY: I think that's a ridiculous and outrageous claim and doesn't dignify a response from this podium.

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HENRY: Now, that tension also on display as Speaker Paul Ryan tried to talk up taxes at Boeing headquarters in Washington. A Boeing employee, a little bit off script asked Ryan: how much influence he has in reigning the president in? Ryan quipped, it's a day by day deal, and then added, he was joking, kind of, Martha.

MACCALLUM: Ed, thank you very much. So, many are left to wonder why the president is choosing this strategy and going after some of these members of his own party. Here now: Marc Thiessen, an American Enterprise Institute scholar, and Fox News contributor. He said the president should not do that; he's written about that. And Eric Beech says yes, he should. His campaign strategist for Senator Jeff Flake's opponent, Kelli Ward. Welcome to both you. Thanks for being here tonight.

MARC THIESSEN, FOX NEWS CONTRIBUTOR: Good to be with you, Martha.

ERIC BEECH, CAMPAIGN STRATEGIST: Thanks, Martha.

MACCALLUM: So, Mark, let's start with you. You know, when you look at this, and you look what the president is saying, he's angry that they haven't been able to pass his agenda, they haven't been able to get health care through. Who knows what's going to happen with the tax reform thing. And then, you got Paul Ryan saying, well, we really can't do anything except a C.R. or just get the debt ceiling done. And then, later down the road, we're going to get to the budget and real tax reform. People say, what is taking so long?

THIESSEN: He has right to be frustrated. But absolutely right, I'm frustrated, quite frankly, as well. But the lesson of the ObamaCare fiasco and legislative fiasco that's happening up there is that 52 Republicans is not enough to get 50 votes. Because what happens is when you only have 52 Republicans, then John McCain becomes the swing vote who can deny Donald Trump his agenda. So, the solution to that not to go after Republicans who are reliable votes. Jeff Flake votes with Donald Trump 94 percent of the time.

I understand why Donald Trump doesn't like him, that he said nasty things about, wrote a book about him, all the rest of them. But he's a 94 percent reliable vote. Dean Heller, a 90 percent reliable vote voted with him. So, you need to add to our majority, not reduce it. So, we should not be spending our energy, time, and money. And Donald Trump should not be spending energy, time, and money attacking Republicans who vote with him. He should be going out and going after the Democrats who vote against him and who are vulnerable and spending his energy trying to increase his majority so that John McCain isn't the guy who decides whether we repeal ObamaCare.

MACCALLUM: Let me get Eric Beech in here. But first, I want to play this attack ad that goes after the person you support. Take a look.

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UNIDENTIFIED MALE: Embarrassing behavior. Dangerous ideas. No wonder Republicans rejected her just one year ago. Chemtrail Kelli, not conservative, just crazy ideas.

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MACCALLUM: That's coming from her own party, Eric.

BEECH: Yes. Look, Martha, Donald Trump won in November because he understood more than anyone the people's agenda that included more jobs, better trade deals, and really, more importantly, to secure our border and building a wall. And a few senators, not all of them but a few of them, have undercut that agenda, most notably Jeff Flake. Jeff Flake didn't even vote for Donald Trump. He has profited off a book writing about Donald Trump. So, I think the question I ask, Mark and many others is: why wouldn't we support a candidate that really has the will of the people behind her? And that's Kelli Ward.

So, I look at it where the Republican Senate Leadership has a real opportunity to really be the open party, open tent party. We should invite people that really are in line with the people's will, and really this Trump coalition agenda. This isn't your old Republican Party in 2004. This is something that people can get behind a Kelli Ward as a candidate. So, I ask that question to Marc and others.

MACCALLUM: Go ahead, Marc.

THIESSEN: Sure, I'll answer. I'll answer. Number one -- first of all, you've to get Donald Trump support, because he pulled back from endorsing her on Monday at the rally in Phoenix and was meeting with other candidates. So, he's not sold that Kelli Ward is the solution. Put aside Kelli Ward for a second. You're an extremely talented political operative. And I wish you were using your talents to go after vulnerable Democrats instead of vulnerable Republicans.

Why would you go after somebody who voted with Donald Trump on ObamaCare repeal, who voted with Donald Trump, is going to vote for Donald Trump on tax reform, who votes with Donald Trump 94 percent of the time? Why don't you go after Tammy Baldwin, who votes against Donald Trump 81 percent of the time; Bob Casey, 73 percent of the time; Sherrod Brown, 70 percent of the time; Bill Nelson, 65. These are all vulnerable Democrats.

MACCALLUM: All right. We got your point, but let him answer. Eric, what are you doing? What are you doing with your talents?

THIESSEN: Yes, come on.

BEECH: First and foremost, that's the first time I've ever been called talented. So, I really appreciate that. But I ran the largest pro-Trump pack with Ed Rollins, who Marc knows well.

THIESSEN: A good friend of mine.

BEECH: We really support this Trump coalition agenda. So, we will be participating in this election cycle against those Democrats. But once again, you know, we don't have a governing majority. Marc mentioned, well, we have 52. Why not get to 56? What's the number? We have the governing majority.

THIESSEN: 60 is the number.

BEECH: We saw in the health care debate. Well, right now we only need 50. And we didn't get 50 for something that's been promised for seven years, and that's healthcare reform.

THIESSEN: So, we need more Republicans, not less. We don't want to lose Arizona and Nevada.

MACCALLUM: All right. I got your point. We have to go, guys.

BEECH: We need more Republicans with the will of the people.

MACCALLUM: Eric and Marc, thank you very much.

THIESSEN: Thank you so much.

BEECH: Thanks.

MACCALLUM: So, Republicans were not the president's only Twitter targets this morning. He also lashed out at his media critics tweeting this: "The fake news is now complaining about my different types of back-to-back speeches. Well, there was Afghanistan, somber. The big rally, enthusiastic, dynamic and fun. And the American Legion -- V.A., respectful and strong. Too bad the Dems have no one who can change tones," the president wrote.

So, what triggered that tweet from the president? Just a short time before those tweets: CNN ran the banner. President Trump wildly swings from uniter to divider, while "Morning Joe" went with a tale of two Trumps. President careens from stayed to wild and back again. So, are those justified? Take a look at parts of the recent speeches. Watch.

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DONALD TRUMP, PRESIDENT OF THE UNITED STATES: In months to come, all of them will honor the sacrifice of every fallen hero. Every family who lost a loved one and every wounded warrior who shed their blood in defense of our great nation.

It is finally time to rebuild our country, to take care of our people, and to fight for the jobs our great American workers deserve. And that's what we're doing. And we will never tolerate crime in our cities, bloodshed in our communities, or acts of hatred or terrorism against our citizens.

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MACCALLUM: So, there is a look at what got that very sharp reaction from a number of people in the media. Joining me: Ari Fleischer, former White House Press Secretary and a Fox News Contributor. Ari, always good to see you. Thanks for being here tonight.

ARI FLEISCHER, FOX NEWS CONTRIBUTOR AND FORMER WHITE HOUSE PRESS SECRETARY: Thanks, Martha.

MACCALLUM: You know, I mean, you look back. I'm thinking back to President Obama who really did, you know, sort of have a tone that he carried throughout most of his speeches. Apparently, that seems to have rattled some folks in the media.

FLEISCHER: Yes. You know, look, there's criticism of Donald Trump that is significant and is worthwhile. This is a meaningless criticism of Donald Trump. This is a press and about lazy days of August with nothing better to do. And of course, they don't want to focus on the content of what he's saying. I've never known a politician that didn't speak differently at the rally. Rallies meant to sort you masses to get people fired up and to be passionate, and that's nothing that Donald Trump hasn't done for almost more than two years now that he's been in public life.

MACCALLUM: You know, when you look at -- it feels -- you know, you look at the conversation that we just had, Ari, about what's going between Republican infighting essentially. You get the sense from the president that he feels that he has a connection to the people. That perhaps, he doesn't have clearly with many members of the media and with the folks on Capitol Hill. And there's almost a sense in recent days from him that he -- you know, so what? I'm sticking to my agenda, and I'm sticking to what I believe and what I think. And if Jeff Flake is not on board, I don't want him there; we want to replace him with somebody else. I mean, that's what you're getting here.

FLEISCHER: Sure. And when a politician is starting to lose popularity, they, of course, look at the remaining face that they have, whether going to the left or the right and they say these are my people and I'll never let them down. But the challenge to Donald Trump's presidency is not just keeping his base, which is vitally important to his success and to Republican's success but to grow that base. Donald Trump needs to get his popularity up into the 40s and not into 50s, because that's going to help him win Democratic votes on legislation, it's going to help him keep all the Republicans in his column on legislation.

His problem is much more than he hasn't been able to deliver on major legislation. And that's what he was elected to do, to change Washington, and that reforms. His personality and his style, people will accept it, just not accept, get angry about it, and love it, but it's the legislation that he'll ultimately be measured by. So, I don't really lose sleep over how he speaks at rallies or he speaks at a somber event -- I find that meaningless. What I focus on if can he get the job done, and this remains the untold story of the Trump years.

MACCALLUM: Yes, very interesting. And as Ed Henry just reported, he's going to take a more personal role in the tax reform issue, tax cut, tax reform.

FLEISCHER: Very helpful.

MACCALLUM: We'll see what we get. So, we'll see if that gets him where you believe he needs to go. Ari, thanks very much. Always great to see you.

FLEISCHER: Thanks, Martha. Thank you.

MACCALLUM: So, breaking tonight, we're going to check in with the extreme weather center as Hurricane Harvey is swirling out there. It has strengthened significantly and is now putting millions of Texas residents directly in its path. Governor Abbott of Texas telling Fox News moments ago that people need to evacuate. They have until noon tomorrow. We will bring you the very latest. Also, a U.N. panel lecturing the United States after Charlottesville. Issuing a warning about racism that they've only issued to countries like Iraq and the Ivory Coast. Former U.S. Ambassador to the U.N., John Bolton with a strong message for the U.N., next.

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MACCALLUM: An extreme weather alert tonight. Texas residents preparing as hurricane Harvey barrels towards the coastline now, it is now forecast by the National Hurricane Center to become a category three storm before it makes landfall. Governor Abbott telling Fox News that residents in Harvey's path need to evacuate before noon tomorrow. Fox News chief meteorologist Rick Reichmuth watching this very closely for us in our extreme weather center tonight. Rick, what do you see there?

RICK REICHMUTH, FOX NEWS CHIEF METEOROLOGIST: I'm going to tell you, great words from the governor there to get out of harm's way. The problem is that there's a lot of area in harm's way. Category three could be a category four storm somewhere here on the shore tomorrow evening in towards Saturday morning. Moving on shore and then stalling out. It doesn't really kind of losses any ability to move it in one way or another, and so we have a lot of area where we'll be seeing hurricane force winds, a lot of tree damage, a lot of storm surge. But then, we watch this thing stall out for a number of days. I'm talking about maybe until Wednesday of next week.

So the rainfall totals of intense tropical moisture are going to be extreme over about five days. Take a look at this. We've got some numbers up in the 30-inches of rain. Go over towards Houston, and we have numbers in the teens to 20's. And they go inland toward San Antonio and Austin. That's kind of the cut off right there at I-35. As this nudges a little further towards the west, we've got big rain there. If it goes a little further to the east, more rain toward the east. But a lot of people in the path of this and it also include Louisiana. Haven't talked as much about that, but we'll certainly will over the next couple of days. Martha?

MACCALLUM: All right. Rick, thank you very much. We'll be watching as well. So a rare formal warning issued against the United States by the U.N. in the aftermath of Charlottesville. The U.N., one of the committee in the U.N. says that the United States is being judge for the failure to condemn racism. The chairperson stating this, quote, we're alarm by the racist demonstration with the written racist slogans, chants and salutes by white nationalists, neo-Nazis, and the Ku Klux Klan. Promoting white supremacy and inciting racial discrimination and hatred. Here now former ambassador to the U.N., John Bolton, who is also a Fox News contributor. Ambassador, good to have you here this evening.

JOHN BOLTON, FORMER U.S. AMBASSADOR TO THE U.N.: Great to be with you.

MACCALLUM: I want to put up on the screen. We have a list of the other countries who fall into this category now with us, Burundi, Iraq, The Ivory Coast, Kyrgyzstan, and Nigeria. Do we deserve to be on this list?

BOLTON: Now this is -- this whole affair is ridiculous. And I think points to the fundamental illegitimacy of this committee. This U.N. committee, so-called independent experts. It's one of the large numbers of similar kinds of bodies set up by U.N. treaties or resolutions of the General Assembly. And they purport to pass on issues that we normally consider questions of domestic American political debate, the death penalty, abortion, environment, gun control. Look, race is one of the most sensitive and important social issues we have in America. We're going to deal with it through our constitutional process. And the idea that some independent panel of experts has anything worthwhile to say to us about free speech really it defines credulity.

MACCALLUM: Well, some in the international community have taken advantage of the opportunity to speak out against the country. This is a tweet from the Ayatollah Khamenei in Iran, saying if the U.S. has any power, they better manage their country. Tackle #white supremacy, rather than meddle in nation's affairs, #Charlottesville. Your thoughts?

BOLTON: Yeah. Well, there's no doubt. And that's part of the thinking behind the creations of these committee's and treaty bodies and so on, that are sort of growing like a coral reef. It's hard to point this out as a major threat to American sovereignty. But in the aggregate as they try to transfer decision making out of domestic American politics and into the international sphere where American views are -- let's face it, much more pro-liberty than most of the rest of the world, we would be in trouble.

But I have to say also, you know, this idea is creeping into the American debate, too. And the New York Times is writing a story on this very issue we're talking about by two reporters contains the following sentence. This is a news report says, the American constitutions offers robust protections for racist speech, while some European countries explicitly prohibits pro- Nazi rhetoric. So there's a provision in the constitution, I think it's called the first amendment that says congress shall make no law against explicitly racist speech. What kind of mentality? In the New York Times protected by enumerable first amendment decisions, and indeed one where Justice Brennan called for uninhibited robust, wide open debate. The same word robust. The New York Times acting as if this is a perfectly legitimate criticism. It's really amazing.

MACCALLUM: Thanks very much, Ambassador Bolton. Good to have you with us tonight.

BOLTON: Glad to be with you.

MACCALLUM: So another low for the terror group ISIS as they allegedly use the child of an American soldier for their sick propaganda purposes. We're going to show you that. Plus, the White House revealing new guidelines in its effort to ban trans-gender people from serving in our military. Up next, we'll be joined by two veterans on both sides of this emotional and complicated debate. Lieutenant General Jerry Boykin and army ranger veteran Robin Biro, when we come back.

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MACCALLUM: So some short stories here as we come back. U.S. intelligence agencies are looking to identify this young boy who was featured in a new ISIS propaganda video. The boy speaks fluent English, he says he's an American, and more shockingly he claims to be the son of a U.S. soldier. The child goes on to threaten President Trump and the American homeland. We should note that Fox has not been able to independently verify these claims that are made in this video, but we'll continue to look into it.

Also, when congress goes back into session in September, Democratic senator, Robert Menendez, probably will not be there. His criminal trial starts the very next day and the judge today turned down his request to postpone the case until after the legislative session. He faces 14 counts of bribery and conspiracy, including allegations that he did favors in exchange for gifts from a wealthy donor. If Senator Menendez is found guilty and if he were to be expelled from congress, it would of course shift the balance of power even more towards Republicans. Another story we will be watching very closely as that develops.

So also developing tonight, a huge controversy. As the White House releases new details on the plan to ban trans-gender people from serving in the military. Fox News has confirm the guidelines that would include banning new enlistments, look at the deployability of current trans-gender troops, and whether they should remain in service, and stipulate that money will no longer be spent on medical or surgical treatments towards that end. Joining me now, Lieutenant General Jerry Boykin who served as deputy undersecretary of defense for President George W. Bush. Also with us tonight, Robin Biro, the first openly gay army ranger who served two tours in Afghanistan. Gentlemen, thank you both for being here tonight.

JERRY BOLKIN, FORMER DEPUTY UNDERSECRETARY OF DEFENSE FOR PRESIDENT GEORGE W. BUSH: Thank you.

MACCALLUM: General Boykin, let me start with you. You have called this decision by President Trump bold and courageous, why?

BOYKIN: Well, I think that first of all, we need to remember that this is something that he pledged to do. He talked to a group of us veterans, many of which were retired flag officers back in October of last year, and this was one of the issues that came up and He pledged to make this decision. So following through on this decision was very bold because he took on the entire LGBT community in doing so, but he did it because it's a common sense decision to make and we applaud him for doing this.

MACCALLUM: Why is it common sense?

BOYKIN: It's common sense because in no way can you demonstrate that recruiting or retaining trans-genders in our military enhances our readiness. Remember, this is about the fundamental mission of the military, which is to win wars. If it enhances that ability, then it's a good thing to do. But you can't make a case that this enhances readiness in any way. Therefore we should not do this.

MACCALLUM: Robin Biro, I know you disagree. Tell us why.

ROBIN BIRO, ARMY RANGER: I sure can. I can make it a very easy argument against that, because I will tell you that over 90 percent of high school graduates, when they graduate high school, they do not meet the minimum standards to get in to our military. We're having significant problems right now with recruiting and retentions of soldiers. I'll tell you this, we were just directed last year that we could no longer chapter out soldiers who didn't meet the body fat and A.P. physical fitness test requirements. We're starting to retain those, but yet you want to tell me, with all due respect, general, that now -- that this doesn't affect readiness when we have openly trans-genders soldiers who will meet every physical criteria and are deployable, but yet, you want to push them out. That affects readiness. And I will tell you this too, we are looking at losing an asset of $2.2 billion at a minimum because we have 6,500 openly trans-gender members serving right now who we're going to throw out, and it cost us right now on average about $340,000 per soldier to educate those.

MACCALLUM: Thank you, Robin. So the argument is that they're ready and able to serve. Many of them are already in the United States military and are serving with honor, general. It reminds me a lot of the argument that was made against women in the military.

BOYKIN: Yeah, look.

MACCALLUM: How is it different?

BOYKIN: Martha, I want to thank Ranger Biro there for his service. And he had a lot to be proud of. And rangers lead the way. However, you can throw out that data. I think your data is very, very skeptical. I don't believe that you are correct. Ninety percent of the young people graduating from high school today, it is a large percentage but it's not 90 percent. But, let me say this. I'm very passionate about this for a couple reasons. One of which is because we've used our military as a test bed for nothing but social experiments and it's time to stop and focus on readiness. The second thing is, we don't recruit people and shouldn't recruit people with any kind of physical or mental illness that would require them to go through some kind of surgery or some kind of major rehabilitation program.

MACCALLUM: I'm going to have to let Robin respond to that. We're almost out of time. Robin, go ahead.

BIRO: Yeah, absolutely. This is not a mental illness. This is a medical condition that is diagnosed by medical professionals. It is treated with medicine. The military -- that is completely garbage with all due respect. And these people are willing to fight and die serving our country. I want to point out this is one that I proudly serve with, Sergeant Shane Ortega. There is not a finer soldier that I want guarding my back right now, but this soldier is one being faced with getting put out of our military. That's a shame.

MACCALLUM: All right. We've got to leave it there. Gentlemen, thank you for your respect for each other and for bringing your arguments here tonight. And we will continue to talk about this and debate it in the days and months to come. Thank you gentlemen very much. So a big court decision was handed down in the case of an evangelical Christian football coach who was fired for praying with his players. In an exclusive interview, Coach Joe Kennedy, who we spoke with when this case broke is back here tonight now that the court has ruled against him. His next step in the major religious liberty fight right after this.

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MACCALLUM: So a big setback tonight for an evangelical Christian football coach fighting for his right to pray on the field. It started in 2015, when a Seattle-area high school told Coach Joe Kennedy to stop praying on the 50 yard line after the game. He refused. They fired him. He sued to get his job back, and accused the school of violating his free speech. But the ninth circuit court, which is known for its record of liberal decisions, does not agree and they wrote this, when Kennedy kneeled and prayed while in view of students and parents, he spoke as a public employee, not as a private citizen, and his speech therefore was constitutionally unprotected. Here now in an exclusive interview for The Story is Coach Kennedy and his attorney Hiram Sasser from the First Liberty Institute. Thank you very much to both of you for being here tonight. Coach Kennedy, let me start with you.

JOE KENNEDY, FORMER HIGH SCHOOL FOOTBALL COACH: Thank you.

MACCALLUM: Were you surprised by the outcome after having gone through this process? Is this the way you thought it was going to go?

KENNEDY: You know, to be honest, I've only heard rumors about what the ninth district is about. I don't know the legal mumbo jumbo. But I just heard rumors. So I wasn't really surprised by any of the rulings.

MACCALLUM: Do you understand the argument that they're making? Where they say, you know, you're in a public school logo jacket as the football coach there. It's public property. And that they feel that you are not just representing yourself, you're representing the school, and therefore that crosses the line between public and church. Church and state.

KENNEDY: Right. Yeah, well, I really tried to meet with the school halfway with everything. They didn't want me to pray with the kids and I said, you know, that's fine. Your rules. But I'm not going to give up my beliefs just because it made somebody feel uncomfortable. So I agreed that I would just do it by myself on the 50 alone the way it first started out.

MACCALLUM: Why is have to be on the 50? Because I know they said to you that you could go out after when everyone is gone, you can go out there, or you could go to a separate spot and pray after the game. So why did that solution not feel right to you?

KENNEDY: Well, even before I accepted the coaching job, I made a covenant with God that, hey, I'm just going to give you the glory on the 50 yard line. And I don't know where I got it. If I saw the Seattle Seahawks or one of the other football teams doing it, but I said, hey, that's where we fought the battle so I'm going to give you thanks right there for what those young men just did.

MACCALLUM: Hiram, what do you think about the outcome here? What's your next move?

HIRAM SASSER, ATTORNEY FOR COACH KENNEDY: Well, I can't believe that the court said that the law is going to be that, a coach praying silently by himself for 15 seconds.

MACCALLUM: But there's a huge crowd that gathered around him. And the students come out and the parents come out. We showed the picture.

(CROSSTALK)

MACCALLUM: We could show it again. So they're saying that others might feel that they might be looked upon negatively by the coach if they don't join in. That's part of their argument. Why does that not hold water with you?

SASSER: Because he was fired for praying, actually, by himself. It was two games later. He was by himself. He kneeled down and he prayed for 15 seconds by himself, silently, and that's why he was fired. It's totally outrageous. The argument that the ninth circuit has adopted is basically that if you do anything that's religious at all that someone else can see, that somehow you're working on behalf of the state and you're conveying a religious message.

So that means you can't wear a Yakama, you can't make the sign of a cross. God forbid, you pray for a player who's injured at a time during the game. So a lot of people can learn more as the case goes on at firstliberty.org. But the most important thing is that Coach Kennedy complied with all of their initial requests, he prayed by himself. And one of the great things about this that we really enjoyed is President Trump's support in this case. He tweeted out his support. And we look forward to receiving additional support from a lot of people who we've heard are outraged by this decision.

MACCALLUM: So you think this will go to the Supreme Court?

SASSER: I think it's very possible that it could go to the Supreme Court or could go to the ninth circuit. There's a lot of different options that are available. But it's just unfortunate they would go so far to say anything that you do.

MACCALLUM: Understood. Coach, thanks very much for being here tonight. We'll be watching.

KENNEDY: Thank you so much.

MACCALLUM: We'll be back.

SASSER: Thanks for having us.

(COMMERCIAL BREAK)

MACCALLUM: So speaking of football, here's a story that echoes the one that we opened the show with tonight. Buffalo Bill running back LeSean McCoy said this about the suggestion that Colin Kaepernick is being blackballed by the NFL for taking a knee during the anthem. Here's our quote of the night from LeSean. There's a lot going on with the whole Kaepernick situation. In this country, you can believe what you want. Freedom of speech. If the guys want to stand, they can stand. I think that maybe they can choose a better platform to state their beliefs. One thing I've learned about this, just here -- people here in America that they're followers. There's some that you may ask about different topics, but they'll say what they heard, not what they actually know, even with the Kaepernick situation. He goes on to say that he believes that Kaepernick is not a good enough quarterback for the teams to take him on with all the distractions that he brings to the table. These days, speaking your mind and not going along with the herd can get you shamed by the masses on social media, but LeSean McCoy says he doesn't care. That's "The Story." We'll see you back here tomorrow night at 7. Tucker Carlson is up next.

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