Napolitano on bias at the FBI, obstruction of justice debate

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

MARTHA MACCALLUM, HOST: We've got it covered. Thank you very, Bret. We pick up "The Story" from here. Breaking new details on that and also what happened at the FBI. We are now learning that the man that was removed from the FBI investigation for anti-Trump bias was the same person who conducted Michael Flynn's questioning.

He is also the person, Peter Strzok, who changed the language in Director Comey's famous statement about Hillary Clinton's classified emails from "grossly negligent" to "extremely careless." And that all lead to the closing of the case against her. So, let's back up for a moment. The president claimed today that the same FBI that went easy on Hillary Clinton in his estimation unjustly went after Michael Flynn for just doing his job.


PRESIDENT DONALD TRUMP: I will say this. Hillary Clinton lied many times to the FBI, nothing happened to her. Flynn lied, and they destroyed his life. I think it's a shame.


MACCALLUM: All right. So, that is the president's position on this. Was the Obama DOJ and the James Comey FBI just doing their jobs, or did they go beyond their stated mission of gathering evidence and letting it be weighed by the scales of justice? It's a simple question, but the answer is complicated. It's one the American people deserve an answer to because we all know there's a lot at stake here.

Judge Andrew Napolitano, Byron York, and Tammy Bruce all join me in just a moment but first Chief Intelligence Correspondent Catherine Herridge, breaking news on this story throughout the course of the day has the latest as we nail it all down tonight. Good evening, Catherine.

CATHERINE HERRIDGE, FOX NEWS CHANNEL CHIEF INTELLIGENCE CORRESPONDENT: Thanks, Martha. Within the last hour, Fox News obtaining this April 2016 memo from Attorney General Loretta Lynch to all department employees advising them that during an election, politics must play no role in the decisions of federal investigators. And tonight, key decision-makers from Lynch to FBI Director Comey and a member of his inner circle are under new scrutiny.

FBI Agent Peter Strzok weighed in on this July 2016 statement where Comey recommended against criminal charges for Clinton's mishandling of classified information. We confirmed late today that Agent Strzok changed Comey's earlier draft about Clinton's email and her of an unsecured personal server exclusively for government business from "grossly negligent" to "extremely careless." This is a key change because gross negligence is the standard under the federal statute 18-USC-793F. The FBI agent was removed by Special Counsel Robert Mueller last summer for sending an anti-Trump text to his lover and FBI lawyer. That matter is now under investigation.


ED MCMAHON, NATIONAL SECURITY DEFENSE ATTORNEY: It's not good for the FBI, which holds itself up as a paragon of virtue where there are no political motivations, and we just follow the facts, that's all. And everybody knows that's not the case. The FBI is an organization of human beings with political interests, political calculations and of course that happens.


HERRIDGE: Agent Strzok also helped supervise the FBI Russia investigation with Deputy Director Andrew McCabe, which began in July 2016. Both men were described to Fox News as key handlers for the anti-Trump dossier -- research by a former British Spy Christopher Steele, and funded through the DNC and Clinton Campaign. House Intelligence Committee was promised one of the dossier's handlers to testify behind closed doors this week, but it was postponed late today with McCabe citing a scheduling conflict. Martha.

MACCALLUM: Catherine, thank you very much. Here now: Judge Andrew Napolitano, Fox News Senior Judicial Analyst. I just want to mention before we go to this topic that there is a lot going on in the House right now. There's the suggestion or, you know, the numbers are pointing the direction that could mean that the House will not go to conference on this tax bill, which means that there's the potential for this tax bill, which has been carefully shepherded through the House, and now the Senate, may not go to conference. It's a very big deal, and I assure you that we're on top of it. We're going to get you the breaking news as that comes in. But the judge, to this story which was the other big, big story today, your thoughts on that development?

ANDREW NAPOLITANO, FOX SENIOR JUDICIAL ANALYST: Well, look, as Ed McMahon just said in the piece that Catherine Herridge just did, the FBI's filled with human beings. Show me an FBI agent that does not have a political opinion, I'll show you a dope. They all have political opinions, and under the law, they're entitled to them. But if the political opinion clouds and investigation or unduly animates an investigation, that person should not be in that investigation -- and that's apparently what happened here. So, we have two FBI Directors, Jim Comey has no problem with Agent Strzok's political views; Bob Mueller learns of the political views, wants him off the case.

MACCALLUM: All right. So, I mean, what you just pointed out, does it instruct the case? Do your political beliefs end up impacting your judgment? And that's what the president is saying here. The president is saying, look, I looked at what happened to Hillary Clinton, and he's almost making the case that the FBI doesn't have credibility. He's saying, look at my case, look at what we're going through and I'm demonstrating to you that their credibility is on the line because of the way they handled a similar case, they can't be trusted.

NAPOLITANO: OK. I have not seen a transcript of the Q&A with Mrs. Clinton. We may never see that. But think about this --

MACCALLUM: Which wasn't under oath.

NAPOLITANO: Correct. General Flynn was not under oath. But at the time the FBI interrogated General Flynn, it's January 24th. Donald Trump's been in office for four days. At the time the FBI interrogated General Flynn, they had a transcript of all five of his conversations with Ambassador Kislyak. Question: why were they interrogating him? They already knew he had the conversations. They already knew what he said to the ambassador and what the ambassador said to him. Unless, the purpose of that interrogation was to trap the general. If that was the purpose, it succeeded. It is clear he did lie. And he admitted on Friday under oath in a federal courtroom that he lied. So, he stuck with that, the FBI is stuck with it. Unfortunately, President Trump is stuck with it as well.

MACCALLUM: Obstruction of justice.

NAPOLITANO: The definition of obstruction of justice is the interference with a law enforcement or judicial proceeding for a corrupt purpose. So, if Donald Trump did say to James Comey layoff of Mike Flynn and the purpose was Flynn has suffered enough, not a corrupt purpose. The purpose was the FBI has got more important things to do, and it catches terrorism, bank robbers, not a corrupt purpose. But if the purpose was to prevent General Flynn from telling the FBI something about him, the president, or people around him, that's a corrupt purpose. Can the president be indicted? Never happened before. There's nothing too prohibited. Obstruction of justice can form the basis of impeachment, almost universally in the legal community, yes.

MACCALLUM: Yes. It could start the political process, which then --

NAPOLITANO: The political process --

MACCALLUM: -- to Congress.

NAPOLITANO: -- Congress, right.

MACCALLUM: Yes, exactly.

NAPOLITANO: Which doesn't have the fine rules of evidence that we have in a court of law.

MACCALLUM: All right. We're going to take a quick break. Andrew Napolitano, thank you very much.

NAPOLITANO: My pleasure.

MACCALLUM: Judge, thank you for being here. Not a break, but move on in just a second. And we're continuing -- do we have more information on what happened? It passed, so it will go to Congress. OK. All right. They're breathing a big sigh of relief on the GOP side of Congress tonight. The House of Representatives will go to conference. There was Mark Meadows and the Freedom Caucus had sort of put that in question for a short time moments ago, which would've been very dramatic, but we can tell you that now it has moved to the conference. So, the tax form process will continue to proceed as planned.

So, back to the other topic in terms of the FBI and the judgment about whether or not the Trump administration is being fairly treated here. Growing questions tonight about the Obama administration's role in all of this in the early stages and how the outgoing administration's fixation on Russian collusion and more specifically the Logan Act, may have led us to where we are today.

Byron York laid out very nicely in a new op-ed today for the Washington Examiner, "When it finally came time to charge Flynn with a crime," he writes, "did prosecutors, armed with the transcripts of those Flynn-Kislyak conversations, choose to charge him with violating the Logan Act. Of course not. But for the Obama team, the law had already served its purpose. To entangle the new administration in a criminal investigation as soon as it walked in the door of the White House."

Here with more on that, Byron York, Chief Political Correspondent for the Washington Examiner; and Radio Talk Show Host, Tammy Bruce, both are Fox News Contributors and a great guest on this show. Good to have you guys both here tonight. Byron, so you basically claim that they took this, you know, a 200-year-old act that's never been prosecuted, but they used it as a basis to listen in on conversations, to get transcripts of conversations and to encircle the administration and enmeshed them in this as they walked in the door as you say.

BYRON YORK, FOX NEWS CONTRIBUTOR AND CHIEF POLITICAL CORRESPONDENT FOR THE WASHINGTON EXAMINER: Well, they used it as a basis to interrogate Michael Flynn on that January 24th interview that the judge was just talking about. If you go back and looked through the campaign, a number of Democrats were raising the question of whether Donald Trump or his campaign aides had violated the Logan Act, beginning, I believe, in July of 2016, when Trump was at the Republican Convention. And remember he said, hey, Russia, if you've got those 30,000 Hillary emails, let's see them. Well, that's when the accusation started.

And then, they continued through the fall and there were Democrats who called for hearings on the Logan Act and the Trump campaign. They called for the justice department to investigate, and what we now know is inside the Obama Justice Department there was a lot of concern that Trump might have violated the Logan Act, and indeed the possibility of a Logan Act violation was one of the considerations they had in mind when they sent those FBI agents, apparently, including Agent Strzok, to the White House to interview Michael Flynn.

MACCALLUM: You know, it's interesting, because you kind of follow string along here, Tammy. The original concern was that there was Russian meddling in the election and that perhaps the Trump campaign had been in on it, that they were colluding as part of it. So, they follow that to Michael Flynn, and Michael Flynn it turns out has had a number of conversations with Sergey Kislyak that he didn't disclose.

So, that gives them more reason to, you know, keep digging along these lines. But what they found was that Michael Flynn had been having discussions with Sergey Kislyak during the transition -- not before -- to begin that process of starting to have an administration that's talking to the Russians. Is there anything wrong with the content of the conversations that he had with ambassador based on your take on it?

TAMMY BRUCE, FOX NEWS CONTRIBUTOR AND RADIO TALK SHOW HOST: Well, look, I mean, this is -- I think that it's clear there's a reason why it's called a transition. Is that you've got to have an administration that's coming in, that can be ready on the ground running in an environment where, keep in mind, the sanctions that Obama implemented were at the end of December. They were meant to hamstring him. They were meant to present a problem when you've got ISIS in the Middle East, Russia in the Middle East. You've got North Korea doing its thing. So, here you've got a situation where he's being set up effectively. So, there's look, argue -- you could argue that the arguments about to ask the Russians to not react or to not take action because of the sanctions was helpful to the Obama administration so that things could continue to go smoothly, not just helpful for Trump, but helpful for Obama as well. Less travel around the world.

So, this is why I think you've got -- and the judge made a very good point, what was the point of that original interview if not, in fact, because you wanted to get him onto something which speaks to the idea of an agenda? And I think also when we think about the collusion dynamic, at about that same time in the summer, a little bit earlier perhaps, is when the DNC took over the Fusion GPS dossier. Creating effectively, then -- you could argue, they needed the basis with which then to try to get this unmasking for General Flynn. So, you see this pattern very early with an agenda.

MACCALLUM: Byron, really quickly, you know, it just raises the question of why Michael Flynn denied it, right? I mean, that sort of the thing that's the hardest to figure out. If he had said -- you know, first of all, if they had presented him with a transcript, you know, he would have said, yes, that's me, I had that conversation, in fact, it was part of my job. I was told to reach out to establish relationships and start talking about the future, whether or not we would uphold these sanctions. But he said no; he said I didn't meet with him and that was the beginning of his problem.

YORK: Well, that is the mystery, because, you know, he had been head of the Defense Intelligence Agency and he should know that Sergey Kislyak was likely being wiretapped. And if he's talking to Kislyak then he's being wiretapped.

MACCALLUM: Of course.

YORK: Two, on the other hand, you may not have been fully acquainted with just how antiquated the Logan Act is, it never actually used to convict anybody in 218 years. And also remember the atmosphere at the time, it was getting pretty toxic and pretty radioactive -- the idea of having any contacts with Russia. And the last thing I'll say is he extremely unwisely chose to meet and talk to the FBI without a lawyer. Bad idea.

MACCALLUM: Bad idea. Thanks, you guys. Thank you very much.

YORK: Thank you.

MACCALLUM: So, coming up next on THE STORY tonight, remember this?


SEN. TREY GOWDY, R-S.C.: Secretary Clinton said, all work- related emails were returned to the State Department, was that true?



MACCALLUM: So, is there a double standard at play when it comes to the Clinton and then the Michael Flynn investigations? Jason Chaffetz was involved and Zac Petkanas, coming up next on that.

Plus, former President Obama says to fix the harassment environment, elect more women.

And a candidate in Michigan says she should be elected because she doesn't have a certain body part. You get the idea.

And ABC News is still reeling from a false report about Michael Flynn from Brian Roth. Howard Kurtz on a new development tonight. And how does Joy Behar explain this?


JOY BEHAR, ABC HOST: ABC News, Brian Roth, is reporting Michael Flynn promised full cooperation to the Mueller team. And is prepared to testify that as a candidate, Donald Trump directed him to make contact with the Russians.




TRUMP: I will say this, Hillary Clinton lied many times to the FBI, nothing happened to her. Flynn lied, and they destroyed his life. I think it's a shame.


MACCALLUM: So, President Trump sees a double standard in all of this when it comes to the cases of Michael Flynn and the case of Hillary Clinton, and whether or not they lied to the FBI. Remember, Secretary Clinton's case was the focus of James Comey's testimony in front of Congress right before the election.


GOWDY: Secretary Clinton said, I did not email any classified material to anyone on my email; there is no classified material, was that true?

COMEY: There was classified material email.

GOWDY: Secretary Clinton said she used just one device, was that true?

COMEY: She used multiple devices.

GOWDY: Secretary Clinton said all work-related emails were returned to the State Department, was that true?

COMEY: No, we found work-related emails, thousands, that were not returned.


MACCALLUM: Memorable testimony during all of that with Congressman Trey Gowdy. We turn to Former Oversight Committee Chairman, Jason Chaffetz; and former Hillary Clinton Campaign, Zac Petkanas. Welcome to both of you. Good to have you both here. You know, I mean, President Trump's argument today is that there are two different standards and that Michael Flynn was not treated in the same way that Hillary Clinton was, and he thinks that's political. Zac, what say you?

ZAC PETKANAS, FORMER SENIOR ADVISOR FOR THE DNC: I mean, look, I think Donald Trump is actually missing the point. The significance of the Michael Flynn plea deal on Friday was less about him lying and more about the fact that he traded a lesser sentence in order to cooperate with the special counsel. Donald Trump has a problem. It's not a double standard, if that someone that was by his side throughout the entire campaign that has the keys to the castle is now working with a special counsel against Donald Trump. That's his big problem.

MACCALLUM: Jason is that the truth?

JASON CHAFFETZ, FOX NEWS CONTRIBUTOR AND FORMER OVERSIGHT COMMITTEE CHAIRMAN: No, the least charge that he could possibly get. I don't think this is a threat, I think it's actually a good sign for Donald Trump. If all they could get him on was nothing to do with collusion, nothing to do with Russians, only to have to do with lying to an FBI agent, and then admitting to it that he is a liar, good luck going before a jury in saying, well, this guy is credible even though he just went before the judge and told you that he's a certified liar. So, it's not a winning case. They didn't have anything on him.

MACCALLUM: We will see. And you know, in terms of the question about the way that the Clinton case was treated versus the Michael Flynn case, and whether or not that proves the politicalization of the FBI, let's play this sound bite. This is Hillary Clinton talking about the classified email, which was in the Gowdy exchange that you just saw, and also a man who was integral to that investigation who has just come forward. Watch.


HILLARY CLINTON, FORMER PRESIDENTIAL CANDIDATE FOR DEMOCRATIC PARTY: I did not send or receive any emails marked classified at the time. I never sent or received anything that was marked classified. They weren't marked classified.

CHARLES MCCULLOUGH, FORMER INTEL COMMISSIONER GENERAL: Her main concern was asking me whether or not the documents were marked. And I tried to explain over and over again, as I did then for the next year and a half that it didn't really matter what it was marked.


MACCALLUM: Charles McCullough is saying you can get away with that, and that was -- she was very concerned. And we all remember that the language she always used was so specific. It was like this is my phrase and I'm sticking with it. Nothing that was marked classified. Even though, you know, many people said to her it doesn't matter if it's marked classified, you're not allowed to expose that kind of document on an open server where people could access it, she got away with it. Now, President Trump's making the argument, Zac and then Jason, that there's a double dynamic going on here, that it was clear that they wanted to protect her and that it's clear they want to fry people in his administration.

PETKANAS: Look, I know that it's fun for Donald Trump to beat up on Hillary Clinton, and I understand the strategy of why he's doing it. This is an attempt to undermine the FBI investigation, to discredit it as it is gaining steam and as it is throwing down indictments and guilty pleas are coming down. I mean --

MACCALLUM: But you don't know that indictment and guilty pleas are coming down, Zac, how do you know that?

PETKANAS: Because two indictments have come down when we have two other -- we have to guilty pleas, so --

MACCALLUM: But not related to collusion --

PETKANAS: Well, what they are related --

MACCALLUM: And not related to the White House. And Comey has said, the president not under investigation. I don't know if that's going to turn out to be true, but I'm just filling in what we actually know. And you're throwing in all kinds of, you know, assessments that are based on what, I'm not so sure.

PETKANAS: Well, I mean, the question is if they did nothing wrong, why are they lying about it? Why did Michael Flynn lie to the FBI?

MACCALLUM: Why did Hillary Clinton lied about not having any classified e- mails on an open server?

PETKANAS: That has nothing to do with whether or not they talk to the Russians and were --

MACCALLUM: No, it doesn't, I didn't suggest that it was. Jason Chaffetz, no, they're totally different cases. But the question you said, why did he lie, and I'm asking you in her case why did she like because we're comparing them to judge the credibility of the investigation itself.

PETKANAS: One is hiding something, which in terms of the Russians, and the other one is a different interpretation of what classified as --

MACCALLUM: Well, that's very convenient.

CHAFFETZ: No, no. Zac, Zac, what you have is now an FBI agent who is integral to this whole investigation, ends up that he's pro-Hillary Clinton, anti-Donald Trump.

PETKANAS: Who was fired by Robert Mueller.

CHAFFETZ: He was involved and he was sending the text of his lover who was involved and engaged in this. You have Director Comey who comes before the Oversight Committee, since he didn't even look, didn't even look at whether Hillary Clinton testified truthfully under oath. Said that he would get back to us when we asked him instead of a formal letter to look into that, didn't do that. You have Bill Clinton's meeting on the tarmac with the attorney general. I mean, the integrity of this case is in peril and the Democrats are enjoying this and questioning what's going on at the FBI.

PETKANAS: Look, the fact that Robert Mueller fired this guy shows what a tight ship that he is actually running.

MACCALLUM: No, he only fired him after it became revealed that these texts existed, and he worked in the department since the 1990s. So, there's no way that they didn't have some sense of, you know, who this man was and whether or not he would be the right person for the case.

PETKANAS: Yes, exactly. He fired him once he learned that the text existed.

MACCALLUM: Thing that was obvious that was out there.

PETKANAS: How was he supposed to fire him before he knew they existed?

MACCALLUM: Because he's known him since the 1990s.

CHAFFETZ: He was the genesis of the documents.

PETKANAS: What does that have to do with anything?

MACCALLUM: That perhaps he had --

CHAFFETZ: Because he was the genesis of the investigation and started this -- that started all these other things.

MACCALLUM: I don't know who you text, Martha. I've known you for six months.

CHAFFETZ: When you are leading out on that investigation -- when you're leading out on that investigation, you're in the room, interviewing Hillary Clinton, nobody thinks that she got a serious investigation along that way. It begs a lot of question. And then, why is it that the Department of Justice will not make him available and not provide the documents to the Congress?

PETKANAS: Donald Trump said he fired James Comey because he was too hard on Hillary Clinton. Now, you guys are saying that she didn't get a serious investigation. You, guys, have got to fix your story here.

MACCALLUM: You know what, I think the American people just want to know that the same rules apply no matter who is being looked at, and they look at these two cases and they're trying to figure out whether or not the people who are doing the investigation and making the decisions are actually being truthful and honest in treating everyone the same, and I think that's a very valid question. No one is trying to retry the Clinton case, they're just using it as a benchmark to say, well, we know what happened there, so what's happening here? So, we're going to leave it at that. I've got to go.

CHAFFETZ: Did a Hillary Clinton -- did Hillary Clinton lie under oath? They indicted Roger Clemens for lying under oath and they didn't even touch her with Clinton.

MACCALLUM: Thank you, guys. Thank you very much, guys. Good to see you tonight. So, it is a case that led to the burning of a major American city. Officers accused of wrongdoing in the death of Freddie Gray. Now, in the clear and back on the job. So, what does it tell us about the way this story unfolded, and all that was lost along the way?

The prosecutor's handling of this case. We're going to speak with one of the dads of one of the officers because the officers are not allowed to speak out yet, but we have an exclusive with his father. Plus, former President Obama has a way to end sexual harassment, perhaps, in Washington. He said we should elect more women. Brian Kilmeade and Jessica Tarlov, a good pair to take that on, when we come back.


MACCALLUM: Developing tonight, President Trump must have thought about the Roy Moore question a bit over the weekend. He's now called him and given his endorsement. After the call, Moore tweeted this. Go get him, Roy, President Trump. Just got off the phone with President Trump, who offered his full support and says that he needs a fighter to help him in the senate. I look forward to fighting alongside the president. #MAGA. Joining me now, Brian Kilmeade, who's been up for a long time, co-host of Fox & Friends, and Jessica Tarlov, author of America in the age of Trump, and a Fox News contributor. Welcome to both of you. So good decision on his part?

BRIAN KILMEADE, "FOX & FRIENDS" CO-HOST: I don't think it was necessary. I mean, the guy is up by six points. He never backed to begin with. He didn't vacuum immediately. He was going to passively back him. I thought that was moving ahead. And now he just says, you know what, I fully back in. I think Roy Moore is a questionable candidate to say the least. As we've walked out here the Washington Post has another story of a 17-year- old with handwriting and campy graduation. I just think that Donald Trump actually had a pass on this one. I want the other guy. I wanted Luther Strange. So the people of Alabama are going to give him somebody else, they would have been able to do it, and politically would've actually been OK with him.

MACCALLUM: I think President Trump saw it as a close race. He's up -- RCP by 2.6 right now. And felt like, well, being sort of supportive might not do the trick, I better go all in. And I think purely political decision.

JESSICA TARLOV, FOX NEWS CONTRIBUTOR: Well, I think its two things, actually. I agree with Brian, and I would add to that that he's actually doing the right thing so far as attacking Doug Jones. He was just making a case about how that liberals are for this country. He was highlighting that jones is weak on crime. Look at his pro-choice policy, all these things that Republicans abhor without having to say, hey, the alleged child molester, he's my guy. And I think also the Billy Bush op-ed in the New York Times really set him off. I think that he either read that last night or this morning where Billy Bush doesn't mince any words. He said I heard him on the tape. There were eight other guys that were on the tape. And what Billy Bush did that was so smart is he connected the thinks that President Trump said on that tape to the accounts of the 16 women who have accused him of sexual assault. He said, oh, that's where it's the grab her by the -- that's where you can just kiss them. And I think that really frustrated him and he's riding high on the GOP tax bill. He knows he wants that vote, and so he went for it.

KILMEADE: I don't even know if Billy Bush registered? I really don't. He had an op-ed in the New York Times. I also think that number one that was hear-say that said that he evidently told somebody that might not have been his voice on the bus. But I don't think anybody -- he never came out and said that's not my voice. But Billy Bush I feel terrible for overall.

MACCALLUM: So what are the ramifications of all of this is that President Obama, former President Obama says you know what we need to do with all these sexual harassment cases is we need to elect more women. And then, there's the Michigan attorney general candidate, Dana Nessel, who has taken this step, watch.


UNINDENTIFIED FEMALE: Ask yourself this. Who can you trust most not to show you their (BLEEP) in a professional setting? Is it the candidate who doesn't have a (BLEEP)? I'd say so.


MACCALLUM: I mean, this is where we are, folks. I would say that it's probably not a great idea to suggest that we should just elect people based on their gender. I think we should elect people based on how fit they are for the job. I mean, are we in a world where -- let's only elect men, I mean women, that will work.

KILMEADE: I'm so not over with the Joni Ernst, and this is really going to set me back emotionally. But I'm saddened to see this, Jessica. I don't know. I'm sure you know this, only 21 of the U.S. senators of the 100 are women, only 84 of the 435 are women. I want to see quality candidates get in there. I'm tired of seeing 90-year-old who do nothing but run for office in there. I would love to see more women.

TARLOV: I think what President Obama was getting at, though I'm sure he laughed at that ad, and I laughed at it, and we all laughed at it, is that we need to have more diverse representation in the country. We're a melting pot nation where 320 million were not all men, certainly not all white men. And I think more women should run, and that's what we've been seeing.

MACCALLUM: I want to be completely post-feminist. I want to live in a world where we say I don't care if you're a man or woman. If you're the best person for the job you should be.


MACCALLUM: I'm so tired of hearing about diversity and gender and this and that. You know what, I want the barriers.

TARLOV: Two women getting ahead, and two people of color getting ahead. I think it is important that people in position of power take a stance.

MACCALLUM: Yes. But I believe there's so many qualified women in America that if you just elect the best qualified person you're going to end up with a diverse population.

KILMEADE: I think there's a hunger to elect a woman more than anything else.

TARLOV: Just like the woman that we have.

KILMEADE: Well, it was that woman, I think, rather than a woman.


MACCALLUM: I think Brian has a book and he's got a movie. Are your hands in the Hollywood walk of fame yet?

KILMEADE: Actually, I'm being set for them right now. But mine I actually got at Toys 'R' Us. But I will say this. I'm very excited because this Sunday at 8:00 we'll have Andrew Jackson. You know there's a war in history in this country. The book that I have out now is the battle of New Orleans, made by the most famous man in the country. But there's a reason why Andrew Jackson is hanging up in the oval office. There's a lot of similarities with this president. There's a reason why Abraham Lincoln, Harry Truman, FDR and Ronald Reagan loved Andrew Jackson. And they were kind enough at Fox News to say let's do a special on it. And I had no idea that we'd be doing a special on somebody whose statue we might take down. And as a general, as I talk about in the book, if he doesn't protect New Orleans, New Orleans goes down, the British don't leave for another 50 years. And in New Orleans, we actually go to the statue where people are organizing to take it down because of -- Andrew Jackson didn't have the perfect life. So, Robert E. Lee, I understand this controversy. With Andrew Jackson in New Orleans, if you know American history, to me you can't take it down, but I want.

MACCALLUM: You know you can't take down Robert E. Lee either, and I want you to do a book on him next.

KILMEADE: You do and I'll do it next.

MACCALLUM: Yeah, you should do that next. Fantastic. And you know what, you do and formed the conversation, it goes on around these figures when you highlight them and write about them, Brian, and you do a great job, so we're thrilled for you and we look forward to seeing the movie this weekend.

KILMEADE: All right. Thank you very much.


MACCALLUM: I like calling it a movie.

KILMEADE: Yes. It is a mini documentary. If anyone wants to get it go to, and I can sign it. For Martha, for you, if you come to radio again, I can sign it in person.


KILMEADE: But now she works later.

MACCALLUM: No, no, no. I love doing radio. Thanks, Brian, thanks, Jessica. So still ahead, we all remember the violent riots and the looting in streets of Baltimore set off by the death of Freddie Gray. But after months of investigation there was no evidence that any of the officers involved acted wrongly. None. As of today, these officers are back at work, but they can't tell their story yet. In an exclusive, you will hear from the father of one of them tonight. Plus, well-known investigative reporter, Brian Ross, suspended for a false report on the Russia investigation, it's a big deal. Howard Kurtz joined me on the fallout next.



UNINDENTIFIED MALE: He's prepared to testify, we are told by a confident against President Trump, against members of the Trump family, and others in the White House. He's prepared to testify that President Trump a candidate, Donald Trump, ordered him directly to make contact with the Russians, which contradicts all that Donald Trump has said at this point.


MACCALLUM: That would be a big deal, except there's only one problem, it wasn't true. And it led to the suspension over the weekend of ABC news chief investigative correspondent Brian Ross. ABC News issued a correction noting that President Trump instructed Flynn to contact the Russians after the presidential election as part of the transition team, not before. This is their quote, as a result of our continued reporting over the next several hours, ultimately, we determined the information was wrong. Effective immediately, Brian Ross will be suspended for four weeks without pay. Here not to evaluate how all this was handled, Howie Kurtz, hosts Media Buzz. Howie, good evening, good to see you tonight.


MACCALLUM: This is egregious.

KURTZ: Egregious doesn't begin to describe it. It's hard to overstate when awful mistake Brian Ross made and rushing on the air with a half-baked story based on a single unnamed source, it's like playing Russian roulette with your career. And in fact, he blew a hole in his credibility and he deserved to be suspended.

MACCALLUM: Yeah. Because, and we should point out, that there's a big difference. If the president was instructing Flynn before the election, you know, during the period where the Russians were trying to meddle with the elections, it goes to the issue of potential collusion. It also would bring up the Logan Act, which would mean that a private citizen was interacting with a foreign government on behalf of a future president. But as a transition member he had every right to do that. Whether or not it turns out to be aboveboard, that's another question.

KURTZ: Right, it's night and day. It goes from having a width of collusion to being routine diplomacy when you have the president-elect in charge. And ABC, though ultimately took pretty strong action, initially was just tone-deaf on this thing. First calling it a clarification, then it was updated to a correction, and then came the apology and suspension that you just read.

MACCALLUM: And it really did have reverberations across ABC. Watch this.



UNINDENTIFIED FEMALE: Oh, my God. Breaking news, ABC News' Brian Ross is reporting, Michael Flynn promised full cooperation to the Mueller team and is prepared to testify that as a candidate, Donald Trump directed him to make contact with the Russians.


UNINDENTIFIED FEMALE: So on Friday show, apparently, I was guilty of premature evaluation. People are claiming this is fake news. To me it's a mistake. It's not he didn't deliberately put out a false piece of information. He made an error.


MACCALLUM: She has surmised that it was just a mistake, which it may very well have been.

KURTZ: Sure.

MACCALLUM: But as you say, when you put something like that out, it does ripple across the entire network. And if not corrected quickly it continues to cause problems.

KURTZ: Yeah. And contributed to a 350-point plunge in the stock market and these types of consequences. But it's kind of sad to see Joy Behar throwing up the card and celebrating that the president of the United States may have been implicated in criminal conspiracy and, of course, turned out to be flat wrong. And so, that was her comedic way of, I guess, eating it.

MACCALLUM: Yeah. I mean, it's not really surprising. Given Joy Behar's background and, you know, she makes no -- doesn't hide the fact how she feels about the president or whether or not she would like him to succeed regardless of whether or not she likes him. Howie, thank you very much. We all have to be careful and we're all human, and we do make mistakes, and he's suspended for four weeks. So that's the end shot on that. Howie, thanks a lot, good to see you tonight.

KURTZ: Same here.

MACCALLUM: So we all remember this.


UNINDENTIFIED FEMALE: The findings of our comprehensive, thorough and independent investigation coupled with the medical examiner's determination that Mr. Gray's death was a homicide, have led us to belie that we have probable cause to file terminal charges.


MACCALLUM: That was a very powerful statement by the Baltimore prosecutor. She said that she had a solid case against six Baltimore police officers in the death of Freddie Gray. It stoked the fires of racial tensions across America. There was only one problem. When the facts came out, she had no case. Today, after two very difficult years, these officers are back on the job. But the scars of what happened are far from healed. The father of one of those officers joins me exclusively next.



UNINDENTIFIED FEMALE: To the youth of this city, I will seek justice on your behalf. This is a moment, this is your moment.


MACCALLUM: So remember that? That was Baltimore's prosecutor's message as she announced the charges against six police officers in the death of Freddie Gray. His April 2015th death while in police custody spark protest that turns into violent riots that burnt part of the city. It ruined businesses that have been built over a lifetime. But the narrative that fueled the riot was false. After a year of investigation, every one of them, all six of the officers was cleared of any wrongdoing, and they're now back on the job. Trace Gallagher in our west coast newsroom with the back story tonight. Hi, Trace.

TRACE GALLAGHER, FOX NEWS: Hi, Martha. Freddie Gray was arrested in a high crime area of Baltimore for carrying an illegal knife. He was placed in the back of a police transport van. Gray was then handcuffed and shackled, but he was not restrained by his seat belt. Somehow in the 44 minute ride that included four stops, Freddie Gray suffered what the medical examiner called a high energy injury to his neck and spine, similar to injuries that happen in shallow water diving incidents. But there was never any evidence presented, including several surveillance videos that showed any indication that police gave Freddie Gray a so-called rough ride. And a second suspect who rode in a separate part of the van initially told investigators he heard banging and believe the person on the other side was trying to injure himself, though he later retracted that statement. And when Freddie Gray died a week after being arrested, Baltimore's political leaders threw down the gauntlet. Watch.


UNINDENTIFIED FEMALE: There will be justice for Mr. Gray. There will be justice for his family, and there will be justice for the people of Baltimore.


GALLAGHER: Mayor Stephanie Rawlings Blake is also the one who after more than a week of protests, looting and rioting said those causing the damage needed their space. The case also let the Department of Justice to open a civil rights investigation into the Baltimore police department, and six Baltimore police officers were charged with assaulting Freddie Gray. Four of them were also charged with involuntary manslaughter, and the driver of the van, Officer Caesar Goodson was charged with second-degree murder. Each officer was tried individually, and after the first four were acquitted, states attorney Marilyn Mosby dropped the remaining charges. Watch.


UNINDENTIFIED FEMALE: We could try this case a hundred times and cases just like it, and we would still end up with the same result. Accordingly, I have decided not to proceed on the cases against Officer Garrett, Sargent Alicia White, or to relitigate the case against William Porter.


GALLAGHER: All six police officers acquitted in the Freddie Gray case are now back at work, but none of them are back patrolling the streets. Martha?

MACCALLUM: Yeah. That's right. Trace, thank you very much. Joining me now exclusively, Edward Nero Sr., the father of Baltimore officer Edward Nero. Sir, thank you very much for being here tonight. You know, one of the things that strike me.


MACCALLUM: . is that you're speaking on your sons behalf, and to some extent I guess on behalf of all the officers. They're not permitted to speak, why is that and how can that be?

NERO: I don't know that they're not permitted to speak. I believe that to their best interest it would be beneficial for them not to make comments on the case. They are still employed by the city of Baltimore, and they do still have litigation against the state attorney. So I don't think it would be to their best interest.

MACCALLUM: Yeah. You bring up a point that I was going to get to in a moment. But that's Marilyn Mosby, who everybody was just reminded of her very strong statements during the course of this case, and there's a case against her now for malicious prosecution. Where does that stand?

NERO: As far as I know everything is still going through the court system. Hopefully, she'll be held accountable as she did the six officers. Only differences is she did something wrong, they did not.

MACCALLUM: You say you remember that morning and you called your son after you heard about what happened to Freddie Gray, and he said to you -- you said you better watch out because it was an officer out on the street and he said, yeah, that was me. What went through your mind at that moment?

NERO: Well, my son normally did not work bike patrol, and I have watched - - I live in South Florida, and I had watched the news and I've seen an incident that occurred in Baltimore and I witness two police officers escorting a man to a van, and there seemed to be a large amount of uprising in the city so I did call him to say what's going on. That's when he advised me what had occurred, that he was working bike patrol that day and told me what happened. I had no knowledge of it prior to that.

MACCALLUM: And then you watch the riots break out. And you saw what your son and the others were accused of. What was it like for you as a parent watching your son go through this?

NERO: When I spoke to my son and asked him how he was, the words he used were very upsetting to me. His emotions were very high. I believe him and the other officers felt in some way responsible for what had happened, even though they hadn't done anything. But the city was looking to hang them, and it's very unfortunate that these six officers were being tried for the death of somebody and they really had nothing to do with it other than doing their job.

MACCALLUM: What has been the impact on the lives of these officers and of your son? None of them are on the street anymore. What are they doing, financially, obviously, for many of them they've had an enormous impact.

NERO: Well, I can't speak for the other officers. I don't know how they're feeling. My son is glad to be back to work and we're glad to see that he's starting to get his life back to normal. But the only problem is him and the other five officers will never be allowed to work the street again as patrol officers, which is why they became police officers to start with.

MACCALLUM: Because they would be in danger?

NERO: Probably because they feel it wouldn't be to the best interest to the officer, safety wise. I would imagine. I'm sure that there is some person out there that would like to even it up, and I would hope that will never happen.

MACCALLUM: Edward Nero, thank you very much for being here today. It's been quite a story to watch unfold, and we hope their lives can be put back together. Sir, thank you.

NERO: I don't think.

MACCALLUM: Quick break. We'll be right back.


MACCALLUM: That is "The Story" for tonight. We're back here tomorrow night as "The Story" goes on. I will be joined by David Bossie and Cory Lewandowski with an explosive look at their book on inside the Trump campaign. It's going to be interesting. See you back here tomorrow night, Tucker is up next.

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