Could a deeply divided electorate split America's two-party system?

This is a rush transcript from "The Story," February 20, 2019. This copy may not be in its final form and may be updated.

MARTHA MACCALLUM, HOST: Thank you very much, Bret. And breaking tonight, we will speak as Bret just said with the attorney in the case of the Covington High School student Nicholas Sandman.

Now, bringing a $250million lawsuit against "The Washington Post." That is just the beginning. Also now in their sights, the New York Times, CNN, Senator Elizabeth Warren, and actress Alyssa Milano, for statements like these after Sandman's now-infamous moment with Nathan Phillips.


NATALIE ALLEN, ANCHOR, CNN: Outraged over this now viral video showing high school teenagers harassing a Native American elder.

GEORGE HOWELL, ANCHOR, CNN: A Native American elder and Vietnam War veteran has spoken to CNN at the videos of a group of teenagers harassing and mocking him went viral.

ALLEN: It is disturbing.


MACCALLUM: You may remember, Elizabeth Warren, tweeted, "Nathan Phillips endured hateful taunts with dignity and strength." Alyssa Milano, said, "The red MAGA hat is the new white hood. Without white boys being able to empathize with other people, humanity will continue to destroy itself."

Now, the Washington Post, says that they will mount a quote, "vigorous defense". It is expected that they will argue that Sandmen made himself a public figure in this moment. And therefore, cannot be libel.

The president, meanwhile, has long argued that libel laws in this country need to be changed.


DONALD TRUMP, PRESIDENT: I can't say things that are false, knowingly false, and be able to smile as money pours into your bank account. We're going to take a very, very strong look at that.


MACCALLUM: So he cheered on Sandman today, with the tweet that read in part, "Covington students suing Washington Post. Go get them, Nick. Fake news!"

And now it appears that the president has Supreme Court Justice Clarence Thomas in his corner on this. Thomas wrote in a concurring statement on a libel case yesterday that the ruling made in the mid-60s which claimed that people who were in the public eye, then, had fewer rights when it came to libel laws may need some revisiting.

Here is what he said, "We did not begin meddling in this area until 1964, nearly 175 years after the First Amendment was ratified. The states are perfectly capable of striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm." So is the door opening here for the president to fight back against what he calls fake news?

Joining me now, Shannon Bream, chief political correspondent, and anchor of "Fox News @ Night". Shannon, great to have you with us. Thank you for being here tonight. You saw the president in that sound bite from a while back. He has always claimed that he needs to have a better retaliation mechanism for what he calls fake news. What do you think?

SHANNON BREAM, ANCHOR: Yes, it's interesting because you mentioned what Justice Thomas did just yesterday. And a lot of folks think, listen, he's a supporter of the president, and they don't like what he has suggested.

People are critics of the president that in some way, the ability of public figures to be able to sue people who go after them should actually be rethought in the way that we understand Supreme Court law now.

You know this case back in the 1960s. Sullivan v. New York Times was all about that idea of setting a higher standard. So, now after that ruling, if you're a public figure and someone comes after you, you should normally be able to use states libel laws, slander laws, those kinds of things.

But now, you as the public figure have a burden of showing there was actual malice by the person, by the entity that brought these charges or wrote the story about you, and Justice Thomas is saying, listen, as you quoted there, I think the states need to be able to figure out this -- you know, whole idea for themselves. We don't need to use the Constitution to do something it doesn't say. And he thinks that public figures and the idea of how they should be able to go after people needs to be revisited by the High Court.

MACCALLUM: And it's interesting because the case that he was talking about had to do with a woman who had accused Bill Cosby. And then, you look at this case, and the court ruled that she was a public figure, essentially. Because she had put herself in that arena.

I mean, you can become a public figure in about 30 seconds if you're Nick Sandman.

BREAM: Right.

MACCALLUM: And you just happen to be standing there, and suddenly, people are taking phone videos of you. That seems like a pretty low bar for a public figure.

BREAM: Yes, and that's been one of the criticisms of this whole jurisprudence from the Supreme Court. In the initial case, it was a guy who was a local commissioner down in Alabama. This came during the civil rights movement of the 1960s. He said that he was disparaged by something that had been published in the New York Times. It was a really tough time in the country and there were a lot of competing interests.

But that was expanded beyond that to include public figures and as you said, a lot of people can become public figures without ever intending to. And so, then, did they lose the ability to go after people who have come after them.

And as that definition has expanded, a lot of people have said it is time to redefine it, to talk about -- you know, the fact that it's one thing if you're the president of the United States, it's another thing if you're a high school kid on a trip to D.C.

MACCALLUM: Yes. So, Justice Thomas, of course, is just one justice. And interestingly, both Justice Gorsuch and Justice Kavanaugh has sent some signals through statements that they have made that they are not open to the kind of revisiting that Thomas appears to be.

BREAM: Yes, and any -- even, in this case, Justice Thomas, said this case with this Bill Cosby accuser is not the right case. But a lot of people think he is signaling to folks out there, if you think you've got the case that could be the one to challenge Sullivan v. New York Times, maybe it's time to put together that case and bring it.

But right now, he does appear to be the only one current member of the court that's kind of signaling, it's time to do this.

MACCALLUM: Last question, you know, did the original ruling that Justice Thomas talks about in the mid-60s, did it couldn't really have taken into account the world that we live in today with social media where pretty much anybody can become a public figure as we said in a heartbeat or a tweet?

BREAM: Yes. Yes, there's some major differences, Martha. You're perfectly right to point that out because we didn't have Twitter or Facebook, the Internet, any of the things that we know, you know, look to people where they do become overnight sensations in a good or a bad way in a matter of seconds.

But one thing we did have going on in the 1960s was that really pitched battle over civil rights and the movement where the country was deeply divided and in a lot of pain over that. And that's -- you know, a lot of people think what motivated most of this ruling because the court thought it was so important to have very vigorous public debates. And that people should be able to go after government officials without fear of retribution.

So, some real changes put some underlying themes that -- you know, we're dealing with today still.

MACCALLUM: Oh, Shannon, you're the perfect person to talk about this. Thank you so much for being here. We'll watch you tonight, "Fox News @ Night". Thank you.

BREAM: See you later, thanks.

MACCALLUM: OK. So my next guest is co-counsel for Nicholas Sandman, Todd McMurtry. Good to have you with us, Mr. McMurtry. You heard our discussion. What is your argument going to be that Nicholas Sandman is not in this case, a public figure who cannot say that he has been libeled?


MACCALLUM: Good evening.

MCMURTRY: I think it's pretty simple. When you look at the -- as you say, the jurisprudence in this matter. To go from a private figure to an involuntary public figure, there has to be a public controversy. And then, you have to do something or fail to do something knowing that by your actions or failure to act that you may create publicity for yourself.

In this circumstance, Nick Sandman did not do anything, and he didn't know that there was any public controversy. He was merely waiting to board a bus to come back to Covington Kentucky where he lives and Nathan Phillips simply walked up to him. Nick did nothing after that.

So, I don't think Nick's done anything that would -- that would take him from a private figure to an involuntary public figure.

MACCALLUM: Yes. You feel personally that this case is a very big deal. You say that you as an attorney, you don't always get to deal with cases that you're so passionate about. Why are you so passionate about? What do you think is represented in this case?

MCMURTRY: Well, I'm very passionate about it. A, because of Nicholas Sandman. I mean, Nicholas is a wonderful young man. He's 16 years old. I've had two sons, you know, who have gone through the age of being 16. And when I see people like the Washington Post, you know, ignore the facts and destroy a young man's life in the way that they have done to Nicholas Sandman. As a parent, I feel passionate.

And then, just as an attorney, I feel passionate because I heard the introduction and I think the status of the law today is needs to be changed so that a person like Nick, so that a Twitter mob cannot attack him. It needs to be changed so that when an organization like the Washington Post, decides to write an article without doing any investigation and breaching every journalistic standard out there, that they can be held accountable.

And I'm confident that we are going to prevail on this argument. And so, I'm very passionate about the law as well.

MACCALLUM: Let me ask you, how many of these other cases that we mentioned are you working on already? Are you actively going after the New York Times, CNN, Elizabeth Warren, Alyssa Milano? A bishop was also mentioned in this, tell me.

MCMURTRY: Yes, what we are doing is we are systematically going through all the information that we've received. And there -- you know, hundreds and if not more thousands of these people out there that aren't -- that, you know, said terrible things about Nicholas Sandman and his family.

So, we're looking at those, and we're sending letters to them, asking them to retract their statements and to preserve their documents. In the names of the people that you mentioned are all people that we believe have crossed the line and violated the law, and violated Nick Sandman's rights. So, yes, we're looking at every one of those people.

MACCALLUM: Yes, how did you arrive at $250 million? And I just want to play a comment from Judge Napolitano earlier on that, that dollar figure today and his take on it. Let's watch.


ANDREW NAPOLITANO, SENIOR JUDICIAL ANALYST: So, they demand more than they could possibly get. Other lawyers know, you can't demand a number in court unless you can actually prove that amounts suggest you, it's impossible to prove damages for a 16-year-old, to reputation of $250 million.


MACCALLUM: What do you say to that, sir?

MCMURTRY: Well, I think that with all due respect to Judge Napolitano, my co-counsel, in this case, is Lynwood, who's really the number one national libel and defamation lawyer.

He and I have discussed this. We do feel very confident that we can prove very substantial damages for Nick Sandman. I mean, if you just look at the fact that he's 16 years old, he's -- probably has another 70 years of life or more on this planet, and everything he does, every day for the rest of his life is going to be affected.

Nick is also a very intelligent person who could do very well and will do very well in school. But every job interview that he -- that he goes on, he's going to show up on the Internet and they're going to say, "Oh, Nick Sandman, I'm not sure if my clients or my customers would want to talk to Nick."

So this is going to follow him around his entire life. And I think that, that if you consider that, it could -- it could that --


MACCALLUM: I guess, you could make the argument -- that it might -- that it might serve him well in some cases.

MCMURTRY: Well, it could. But also, you know, Jeff Bezos owns the Washington Post. And Jeff Bezos is worth billions of dollars. Nick Sandman could be the next Jeff Bezos but this could get in his way in life.

And I think if you compare the reputation of a 17-year-old or 16-year-old, it has enormous potential. We don't know what it is. I think that a juror -- a jury in Covington Kentucky is going to find in Nick's favor. And I think we will be able to prove those damages.

MACCALLUM: All right. My last question for you is with regard to a story that just broke this evening, which claims that you and your co-counsel on this Lynwood made what they're calling a rookie mistake in terms of the amount of time that you allowed the Washington Post to respond or to retract their statements about this story before filing this lawsuit.

They say, it -- you have to give them 10 days and that you gave them I think was five or six.

MCMURTRY: Well, that's just not true. The statute is very plain in the way it's worded in Kentucky. It does allow a newspaper like the Washington Post to retract its story 10 days after we make a demand.

There's nothing in there that says you can't file suit before that 10 days expires. So, there is no mistake. That's just people who are trying to promote their agenda, misreading a very plain statement in Kentucky. That's 100 percent wrong.


MACCALLUM: So, do -- I mean, do you think that there's any chance that the Washington Post is going to do that, that they're going to retract their reporting on this story?

MCMURTRY: They can try. Ultimately, that's an issue for a jury whether their retraction is sufficient. And again, 12 people in Northern Kentucky will be able to decide whether or not the Washington Post has done a sufficient job of retracting the terrible lies they've told about Nicholas Sandman.

MACCALLUM: Well, we look forward to finding this case can be a very interesting case to watch with the larger implications, as well. Todd McMurtry, thank you so much. Good to have you here tonight, sir.

MCMURTRY: Thank you very much, good evening.

MACCALLUM: So, breaking now, we have brand new information on the Jussie Smollett investigation where it is -- the grand jury is in the middle of deliberations tonight in Chicago when we come back.


MACCALLUM: We have breaking news right now in the curious case of Jussie Smollett and the attack that he blamed on Trump supporters. Chicago Police now officially confirming that he is a suspect now in this case as far as they're concerned.

Brand new surveillance video feed at the time -- have you seen this -- of the two brothers who say that they were paid to carry out this attack appearing in this picture this video to purchase masks and a red hat of some sort before the alleged incident. Correspondent Mike Tobin has the very latest tonight as the grand jury convenes in Chicago at this hour. Good evening, Mike.

MIKE TOBIN, FOX NEWS CORRESPONDENT: And Martha, we can tell you the grand jury has just let out. They heard testimony from the two Osundairo brothers who were talking about. For about two hours or at least I can tell you about two hours ago, the brothers went into the grand jury room and we don't know exactly how much testimony we heard.

Now, as you rolled that security video of the brothers, we can tell you that they originally came off of different security video, that grainy security video. They were sought after as persons of interest, at one point called potential suspects by police and now it looks like they're going to be key witnesses in the case against Jussie Smollett.

Police are at least reporting saying, that they never cooked a deal with them but the Osundairo brothers have become cooperative witnesses with the prosecution laying out what we've heard through leaks anyway is their version that they were paid to rehearse and ultimately staged this attack on January the 29th.

So we have heard that the testimony has wrapped up with the -- with the grand jury. And watching someone walk by, that is Gloria Schmidt. She is an attorney for -- Gloria, could you come here for a moment? That's Gloria Schmidt who's an attorney for the brothers. Come here real quick while we're online.

This is Gloria Schmidt she's an attorney for the Osundairo brothers. What went on in the grand jury room that you can share with us?

GLORIA SCHMIDT, LAWYER FOR THE OSUNDAIRO BROTHERS: The truth. That's what's going on in there.

TOBIN: Have the brothers been cooperative.

SCHMIDT: From day one.

TOBIN: There was some talk that there were -- that they never cooked a deal. They just agreed to cooperate with prosecutors. Is that accurate?

SCHMIDT: I know that the media really likes to kind of crunch the story into headlines. There's a little more detail to that but my guys are innocent like I said from the first day.

TOBIN: Are you looking to sell an interview with the guys?

SCHMIDT: I'm not looking for that. No.



TOBIN: What is their disposition right now? They've been through a lot.

SCHMIDT: They've been through a lot. Absolutely. I think the American people has been through a lot too so they were eager to tell their story.

TOBIN: Do the brothers feel like they were manipulated by -- all right. Well, that's all we're going to get out of Gloria Schmidt right now. But you see everything's happening fast and furious that grand jury has let out and the next step to see is what comes out of this grand jury. Do you get a true bill, no true bill, and will it result in an arrest warrant for a Jussie Smollett.

MACCALLUM: Very interesting night. Mike, thank you very much for that. Mike Tobin reporting live from Chicago where the grand jury has just let out and we await the information on what comes next. Katie Pavlich joins me News Editor and a Fox News Contributor and Rashad Richey, radio talk show host. Great to have both of you with us this evening.

You know, I just want to replay for everyone Jussie Smollett on Good Morning America stating his case.



UNIDENTIFIED FEMALE: What is it that has you so angry? Is it the attackers?

SMOLLETT: It's the attackers but it's also with the attacks. It's like you know, at first it was a thing of like listen, if I tell the truth then that's it because it's the truth. Then it became a thing of like, oh, how can you doubt that? Like how do you -- how do you not believe that? It's the truth.


MACCALLUM: Rashad, let me start with you and your reaction to his now being called a suspect in this case and the grand jury has convened.

RASHAD RICHEY, RADIO TALK SHOW HOST: From day one, I looked at this Jussie Smollett case with the side out so much so that I told my radio listeners that something did not add up. But I will say this. People are criticizing individuals in left-leaning media spaces because they feel folks jumped on this too much.

I did some research before I came here today and basically, everyone from reporters to anchors always contextualize it with the word "alleged," "alleged assault," "alleged victim." Now there were pundits and there were opinion taters who took a decisive stance, but as far as reporters and anchors, and journalists, they kept it correct.

MACCALLUM: Yes. You know, I think that's a good point and I think that you know, whenever you cover something like this we always have those you know, built-in modifiers when you don't know the outcome. You know, it's interesting though, Katie, when you look at this. And I look back at that interview that he did with Robin Roberts and John McWhorter at the Atlantic wrote today about something that he calls a peculiar aspect of 21st century America and he calls it victimhood chic which I find very right on.

KATIE PAVLICH, CONTRIBUTOR: Well, while Jussie Smollett was trying to turn himself into a fake victim, he actually created real victims whether it was people in Chicago who may have needed the police resources that have been diverted to investigating this case or whether it's the Trump supporters, the MAGA supporters who have been smeared and accused not just of a hate crime but of death threats.

Let's not forget he in this letter that he now allegedly sent or made himself had the brothers make had a death threat in it with a gun pointed at a man with the noose that said MAGA according to this guy. He then went on national television and accused anybody who questioned his story of racism. And this is the problem.

The left has used identity politics for decades to divide and conquer in this country. When he throw in a via narrative that assumes that anybody you know, who accuses a MAG supporter of any kind of wrongdoing, that person is guilty, that only adds fuel to the fire. And the truth is that journalists in this country at the highest levels in this case, they didn't always use alleged. They in fact smeared the entire country and said this is -- this is America in 2019. This is the situation.

Journalists should not be assigning innocence or blame based on gender and skin color. They should be assigning it based on the facts. And the issue here is not necessarily believing his initial story as a victim when it came forward, it was painting all MAGA Trump supporters as racist as they have done since Donald Trump took office in 2016.

MACCALLUM: Rashad, what do you say to that?

RICHEY: I say your guest is incorrect. I would challenge your guest to find one journalist or anchor who actually said or took out the word alleged victim or alleged individual from this case. I think what Jussie Smollett has done actually creates a level of insecurity as it relates to believability and that's the real argument here.

The conversation about politics is really a buck conversation. We're talking about a guy who may have and I believe he did lie about being victimized and there are real actual victims of assault every single day. Now, you look at those victims with the side eye because of this guy. If he did this he should have a criminal impact and I predict that grand jury is going to come back with a true bill. He's got to have an arrest warrant tonight or tomorrow.

PAVLICH: Well, yes, I did politics out of it.

MACCALLUM: I mean, you can't because the danger that is inherent in this is you know, sort of throwing gasoline on the fire of an already divisive political situation. It's almost -- it's too easy -- he thought it was going to be too easy to do this and to have people sort of drawn to it like moths to a flame which is exactly what we saw when he put out the right kind of enticement for them.

And he thought, I guess, you know, I mean we'll see what he thought, but it appears that he was trying to you know, build himself up in some way through this process at the sacrifice of other people who may have been in need of the law enforcement in Chicago and also at the sacrifice of those who support President being marred by it and you know by suggestion.

I just want to point out that -- here's a fox a statement from Fox today because a lot of this was suggested that perhaps he was going to lose his spot or his spot was going to be diminished on his series Empire which was one of the reports that had come out of some of the local reporters in Chicago. They say he continues to be a consummate professional on set and we have previously stated he will -- he is not being written off the show.

Mark Geragos is supposedly representing him. I don't know if he's still going to, Rashad. He, of course, is known for representing folks like Michael Jackson, and Scott Peterson is also on that list. He's had a lot of high-profile clients. I don't know if he's still going to stand by him now that he is some the subject of the investigation. Your thoughts.

RICHEY: Yes. We will see. I haven't watched Empire since season two. But Jussie will not find any difficulty having legal representation. Once again, this comes down to a guy whose credibility is shot to hell at the moment and I think he will have an arrest warrant put out for him. Once again, a guy trying to feed a narrative and that's what's really dangerous here, feed a narrative that was politicized from day one.

I'm saying let's go above and beyond the politics of this. Look at Jussie Smollett as an individual who did something really, really horrible and that there are real victims who deserve our passion, compassion, and they deserve justice.

MACCALLUM: All right, thank you very much. Good to have both of you here Katie and Rashad. Thank you.

PAVLICH: Thanks, Martha.

MACCALLUM: We're out of time. So coming up next, Gavin Newsom, the California governor versus President Trump when high-speed rail goes off the tracks.


GOV. GAVIN NEWSOM, D-CALIF.: I have no interest in sending back $3.5 billion of federal funding that was allocated to this project to President Donald Trump.




NEWSOM: Let's be real. The current project as planned would cost too much and respectfully take too long. Right now, there simply isn't a path to get from Sacramento to San Diego, let alone from San Francisco to L.A. I wish there were.


MACCALLUM: Governor Newsom as President Trump demands a refund on that pricey California high speed rail project now belly up after years of delays and financial obstacles in what Golden State Governor Gavin Newsom calls a case of political retribution from President Trump.

Kristin Fisher live in Washington tonight with the battle over the bullet train. Good evening, Kristin.


This train was supposed to run from L.A. to San Francisco in under three hours. But because it's way over budget and way behind schedule Governor Newsom wants to cut the rail line almost in half, and now President Trump says that the federal government wants its money back.

The Trump administration announced yesterday that it wants California to return $2.5 billion that the state has already spent on the project. And the Transportation Department says it's canceling a nearly billion-dollar grand for the bullet train, because, quote, "the new proposal represents a significant retreat from the states initial vision and commitment and frustrates the purpose for which the federal funding was awarded."

But Governor Newsom believes this is payback for his opposition to the president's immigration policies.

In a statement he says "It's no coincidence that the administration's threat comes 24 hours after California led 16 states and challenging the president's farcical national emergency. The president even tied the two issues together in a tweet this morning. This is clear political retribution by President Trump and we won't sit idly by. This is California's money and we're going to fight for it."

Now the tweet he's referring to from President Trump is this one. It says "The failed fast train project in California with a cost overruns are becoming world record setting is hundreds of times more expensive than the desperately needed wall."

Now the estimated cost for the bullet train is now approaching $77 billion. Martha, that's more than double the initial price tag.

MACCALLUM: Kristin, thank you. Kristin Fisher in D.C.

Joining me now, Jason Chaffetz, former Utah congressman and Fox News contributor, and David Morey, he served as advisor to Presidents Clinton and Obama in their presidential campaigns. Gentlemen, thank you for being here.

So, Jason, let me start with you. Governor Newsom says this is our money, you know, the government gave it to us and we are going to continue to work on this project.

JASON CHAFFETZ, CONTRIBUTOR: No, it's not. It's the American people's money. It is ridiculous. Seventy-seven billion dollars you could give every person in California like five or 10 airline tickets to fly for free in less than an hour. It's a boondoggle.

California's is running this project the way the Fyre Festival was run. I mean, it is such a boondoggle. The president is right. It's the American people's money. And if you pay the money you don't get the end product then you should get the money back. It's just common sense.

MACCALLUM: I mean, it's a logical argument, David, that, you know, this is an American taxpayer dollar that went to this project. It has turned out to be a ridiculous money pit. Why shouldn't they have to send that money back and prove that there's accountability when you're giving funds to do a project?

DAVID MOREY, VICE CHAIRMAN, CORE STRATEGY GROUP: Martha, it's good to be with you. The governor is guilty of unclear communications. And in fact, California has not done a good job in transparency and oversight on the project. Both governors of Republican and Democratic that were his predecessors Schwarzenegger and Brown overpromised.

But that doesn't mean that the administration can politicize the issue divide people and yank the money back. In fact, it was allocated by Congress and now the scale has been contracted and there's a hard date of December 2022, by which the project has to meet certain standards.

I don't see this winning in the court. This is one of 46 legal options between the president and California.

Let me make a bigger point. We can do better than this. We can even get stupid stuff done right now. We need a national, not just to California, a national infrastructure strategy, bold vision, killer execution and go back to the roots. We're the greatest nation in the history of nations of building the future. We got to get better at building the future than this.

MACCALLUM: Well, I think that's an excellent point. And you know, and Jason, when you look at the money that gets lost, I think people are so disgusted with the amount of waste that happens with their taxpayer money in this country and they do want more accountability. And I think this is, you know, it's just an example of what happens when we don't do this in an efficient way that maybe the government is just too, you know, not capable really of running this kind of project.

CHAFFETZ: That's right. And to the other guest, David. It was Governor Newsom that pull the plug on the project. So, if there's no prospect of it getting it done the American people deserve that money back.

There was a case in Oregon where we gave $300 million for them to build the web site, and guess what, there never was a web site built --


MACCALLUM: It's just incredible in and of itself.

CHAFFETZ: -- and the American people lost all their money. It happens all the time.

MACCALLUM: Thank you, guys. Good to have you both with us tonight. David and Jason, see you next time.

MOREY: Thank you, Martha.

MACCALLUM: So, if you thought that a third-party candidate would complicate the 2020 presidential race. What about the possibility of a fourth party candidate? We could be headed in that direction in 2020, folks. That's next.


MACCALLUM: So, its political fractures deepen in this country pushing candidates from all sides of the political spectrum into the race for 2020. Is America potentially becoming in the next election, a three or even a four-party state as the New York Times has suggested.

We talked to a lot about this on this show. As the pollster for Bernie Sanders says, quote, "As Bernie has showed, as Trump has showed I don't think we're in a binary two-dimensional left, right paradigm anymore."

John McLaughlin is a Republican pollster for President Trump's 2020 campaign, official as of today. John, good to have you with us. Do agree with Bernie Sanders on that? Bernie's polls?

JOHN MCLAUGHLIN, TRUMP 2020 CAMPAIGN POLLSTER: No, I don't agree. Because I think -- I think the president can get the majority of Americans to vote for him, especially against Bernie because Bernie is out now unrepentant socialist. And the president his recent State of the Union address he was able to -- we did an internal polling among swing voters in three key states. Arizona, Pennsylvania, and Wisconsin, and he moved his job approval up 26 points when people saw that speech.

If the president goes live direct to the American public they will respond very positively because swing voters only 38 percent have voted for him in 2016. And by the time he was done with the speech, 46 percent approved the job he was doing.

MACCALLUM: And I know you folks said that the people who watched the whole State of the Union speech from home in its entirety were much more positive. And we're talking about --


MACCALLUM: -- split vote. People who have voted Republican and voted Democrat in the past much more so than people who watch him.


MACCALLUM: But you didn't answer my question. My question is, do you think there's the possibility that there are going to be three parties in this country or that President Trump and Bernie Sanders really change the dynamic.

Because President Trump, we all know in the first debate came out there and raise his hand he said, I'm going to actually run as an independent. I'm not going to sign on to stick with one of these guys on this stage. It's different now.

MCLAUGHLIN: Well, it's different. And he's made it different. Because he is setting the tone and setting the agenda for this, and you may have three or four candidates run. And, but, President Trump has a solid base of support and now he's expanding that base.

So, as he gives more of these speeches, as he speaks out on policy, as people see that his policies are working his job approval goes up. And that's the key to winning reelection because the Democrats will have a free-for-all. I mean, Bernie Sanders right now is we had him in our polls, he was at 16 percent (Inaudible) with a 25 percent.

MACCALLUM: Yes. Put those up, guys.

MCLAUGHLIN: Everybody --


MACCALLUM: You got Joe Biden at 25 percent. We don't know if he's going to run or not yet. We'll see. Bernie Sanders at 16 percent. I see, I think that's all name recognition at this point.

MCLAUGHLIN: Well, it's all the other point. That's a national survey right now. They got to run locally and there's plenty of time. But it's a derangement contest, the most deranged anti-Trump voter is the one who is likely to come out of that field. So, Bernie being a socialist.

I mean, President Trump his best in the speech, he said America is not a socialist country. And when he said the majority of Americans suggest they agree with him. Bernie Sanders announced today that he's running as a socialist in the Democrat Party.

MACCALLUM: But we know that that's an idea that has increasing traction with the American voters, especially younger voters, and I think that a lot of younger voters they didn't grow up during the Cold War.


MACCALLUM: They don't understand socialism versus communism versus capitalism. And so, you know, and they don't learn it in school, essentially.


MACCALLUM: So, you know, you're dealing with a large part of the population who thinks yes, why shouldn't everybody get a piece of the action, it's more fair.

MCLAUGHLIN: And they don't understand. They want to control everything from your income to your health care to what you can say or do. So, you know, 30 years ago, the Berlin Wall came down, you know, 30 years ago. These younger voters don't know that. And when they find out they're not going to like it.

But that gives a great opportunity of why Donald Trump is succeeding, why the economy is doing well, why America is stronger and more secure today. And his policy when people find them out, his job rating can go up even higher. We found out it went to 54 percent with --


MACCALLUM: So, he's going to do more speeches, more of the kind of speeches that he --


MACCALLUM: And that's the plan, right?

MCLAUGHLIN: Yes, absolutely. He's going to speak directly to the American public.

MACCALLUM: John McLaughlin who just joined the campaign officially.

MCLAUGHLIN: Thank you.

MACCALLUM: Thank you, John. Good to see you tonight.


MACCALLUM: So, coming up next, new backlash for a tennis legend who said that it's cheating for transgender females born genetically as males to complete as women in the sport. She got a lot of backlash.


MACCALLUM: So how about this? Tennis legend Martina Navratilova, one of the best ever, serving up some controversy tonight after she told a U.K. newspaper that in her opinion, it's insane and cheating for transgender females born genetically as males to then compete as women.

Trace Gallagher live from our West Coast newsroom with this story tonight. Hi, Trace.

TRACE GALLAGHER, CORRESPONDENT: Hi, Martha. The group Athlete Ally, a nonprofit that supports transgender athletes is now cutting ties with Martina Navratilova. The organization has removed her from its advisory board and as a company ambassador. Navratilova who came out in 1981, wrote an op-ed in the Sunday Times criticizing transgender women who compete in women's sports.

Quoting, "Hundreds of athletes who have change gender by declaration and limited hormone treatment have already achieved honors as women. They were -- that were beyond their capabilities as men."

And the op-ed was really just Martina Navratilova doubling down because back in December she tweeted, quote, "There must be some standards and having a penis and competing as a woman would not fit that standard."

That drew the ire of Rachel McKinnon, the first trans-athlete to win a world title in track cycling who called Navratilova transphobic, quoting, "She trades on age-old stereotypes and stigma against trans women treating us as man just pretending to be real women." Martha?

Currently, the International Olympic Committee rules said that trans men are allowed to compete without restriction, trans women have to show their testosterone is below a certain level, but Navratilova argues that lowering hormone levels doesn't solve the problem of men being naturally bigger and stronger.

The trans rights group Trans Actual says, quote, "If trans woman had an advantage in sport why aren't more trans women winning gold medals left, right, and center? Because trans women don't have an advantage. Navratilova says she can stand up for herself, but worries that labeling every critic transphobic will bully some people into silence and submission. Martha.

MACCALLUM: It could. Trace, thank you very much. Trace Gallagher in L.A.

We have a Fox News alert for you right now. Breaking news, Cook County States Attorney's office has just approved charges against Jussie Smollett for disorderly conduct. More details on this breaking story. We were waiting for the grand jury and now we have it. We'll be right with more.


MACCALLUM: What a bizarre tale this has been the curious case of Jussie Smollett. Tonight, we can tell you, just moments ago, Cook County State's Attorney's Office has now approved charges against Jussie Smollet for disorderly conduct this evening.

This in a case that a number of politicians called a modern-day lynching. He claimed that on his way home late one evening in the freezing cold in Chicago someone had put a rope around his neck that they had thrown bleach on him, that they were yelling racist and homophomic -- homophobic slurs at him and that they said this is MAGA country.

Let's bring in Charlie Hurt for reaction. We are going to have Charlie Hurt to talk Virginia politics tonight. But this breaking news changes the story this evening. Charlie, what's your reaction to this so far?

CHARLIE HURT, CONTRIBUTOR: It's really, it's kind of hard to wrap your brain around the idea that accusations. You know, when you first started to kind of hear this a couple days ago that this might have been what was the directions going in it just, you can't believe that somebody would do something like. And it highlights something that we've seen increasingly I feel like, especially in the last couple of years where this desire to politicize crime it's so dangerous.

And until America gets one thing straight, and that is that crime is not political. Crime is crime. And if you commit a crime you're going to be persecuted and prosecuted for the fullest extent of the law. And we don't care about the politics. And it's enforcing the law.

Until we remind ourselves that that's what the law is about then we're not going to achieve equal justice under law. And it's these politicians they are the worse at it. They take an event like this and they try to politicize it. They try to turn it into a weapon that they can use on the political stage where it does not belong.

And the sad, tragic result of it is that because politicians do this sort of thing. It encourages what appears to be very sad, pathetic people to stage things like this.


HURT: And it's bad for the country, it's bad for our law, our law enforcement system and it's bad for -- it's bad for us as a country.

MACCALLUM: Yes. Well, you know what, I mean, we don't know what he's thinking, we wouldn't hazard to guess.

HURT: Right.

MACCALLUM: But you can imagine that this has been a very embarrassing moment for him. We don't know. He has a hearing tomorrow at 1.30 so we'll see, you know, what his defense is. He may continue to defend himself in this and we will see. That's the way the process works. We'll watch it ply out.

I just want to go to Mike Tobin now who's on the phone. He's been covering the story for us from the beginning. Mike is on his way back to the bureau. Mike breaking news on this just moments ago.

MIKE TOBIN, CORRESPONDENT: Yes. Just moments ago, I just heard from police spokesperson John (Inaudible) that he is charged with disorderly conduct and filing the false police report. Well, it's interesting too, and the note I got I just got from Ahern (Ph) is that he was -- this was an indictment that he was charged.

So, you are going to get a legal mind who went to law school not from the journalism school to tell you why they would go to the grand jury and then just go straight ahead and charge him. I'm trying to figure that out right now.

But other than that, obviously a very exciting day and a very embarrassing day for Jussie Smollett who according to police account now staged his own attack.

MACCALLUM: Yes. Good points that you make on the language that we've seen on this so far when we -- you know, there is also the issue of the letter, which is unresolved in terms of who put that letter together and whether or not it came from the two brothers, or whether it came from him. Those are all open questions that we will see as we go through the process in the story.

But Judge Napolitano when we spoke about this the other night said that that could -- that could constitute mail fraud. So, I mean, there's obviously issues in terms of what is going to be ultimately charged here. And Mike, you understand --

TOBIN: And we --


MACCALLUM: Yes, go ahead.

TOBIN: Well, we do know that the FBI was involved in this. They are early on was the originally threat from the letter. And what we have heard and this where you start getting all the anonymous police sources. What we have heard to the anonymous police sources that are among the items taken from the brother's house was a magazine with letters cut from it. So that would match up, so that would be a pretty easy forensic piece of work to do to match the letter to the magazine.

MACCALLUM: Yes, it seems that way. Mike, thank you for hopping on the phone. Great story. Great reporting tonight. Thanks you guys for watching us on “The Story” tonight. "Tucker" up next. Stay with us.

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