Eric Trump: DC Republicans need to get to know my father

This is a rush transcript from "The Kelly File," May 11, 2016. This copy may not be in its final form and may be updated.

MEGYN KELLY, HOST: Breaking tonight, less than 12 hours away from a critical Capitol Hill meeting where there is growing pressure on Republican leaders to embrace the presumptive nominee of their party.  Donald Trump. Welcome to "The Kelly File," everyone. I'm Megyn Kelly.

The big story dominating headlines today, a potentially game changing meeting in Washington, D.C., tomorrow. The leader of the Republicans in the House Speaker Paul Ryan will sit down with the man about to assume the mantle of the party, Donald Trump. The face to face comes days after Speaker Ryan announced that he was not ready to endorse Mr. Trump for president at this point. Tomorrow, the two sides will attempt to hash out the differences. Then just hours ago, Speaker Ryan told a room packed with Capitol Hill reporters, that Republicans cannot ignore their divisions if they want to come together and defeat Hillary Clinton in November. What does that mean? Listen.


REP. PAUL RYAN, R-WIS., SPEAKER OF THE HOUSE: To pretend we're unified without actually unifying, then we go into the fall at half strength. This election is too important to go into an election at half strength.


KELLY: In moments, we will ask Eric Trump what he thinks about the GOP leaders demanding that his father adjust course.

But first, we begin with our senior national correspondent John Roberts on Capitol Hill, with the details on the big meeting. John?

JOHN ROBERTS, FOX NEWS SENIOR NATIONAL CORRESPONDENT: Megyn, it's always fascinating to watch the palace intrigue unfold here on Capitol Hill.  Trump loyalists began prepping the battlefield if you will this morning. A kind of softening up operation in a meeting with House Speaker Paul Ryan.  Putting in their pitches as to why the Speaker should get behind Trump.  New York Rep Chris Collins who is the first member of Congress to get on board the Trump train sake. There should be broad agreement between the two on top line principles, like taxes, keeping the country safe.

Republican values, things like that. In fact, I'm hearing that tomorrow's meeting, not so much being a discussion of the issues as much as it will be just a statement of principles between the two sides. Sources closed to the Trump campaign say while Ryan's endorsement will be welcome, it's certainly not crucial. A two on a scale of one to 10 on the importance scale one source told me. For Trump and Ryan. Tomorrow's meeting really is being put under the heading of a kind of getting to know you affair.


DONALD TRUMP, R-PRESUMPTIVE PRESIDENTIAL NOMINEE: I think we want to get to know each other. I think we want to see if we have the same ideas, because I represent a large group of people with very strong ideas and foundations.

RYAN: I don't really know him. I met him once in person in 2012. We had a very good conversation in March on the phone. We just need to get to know each other.


ROBERTS: Both sides are playing down expectations for what might happen at and after tomorrow's meeting. Speaker Ryan's people saying, they do not expect lightning will strike. Trump's people saying they'll be happy to come away with a handshake and a pledge to keep working together toward the future -- Megyn.

KELLY: John, thank you. Joining me now with more, Eric Trump, the son of presumptive GOP nominee, Donald Trump and also one of the executives of the Trump conglomerate. Great to see you, Eric. Thanks for being here.


KELLY: So, Fortune magazine has a piece out today that says this, Trump badly needs Speaker Ryan's endorsement. Do you agree with that?

E. TRUMP: Listen. He has got tens and tens of millions of votes, I mean, he's really run away with it. He has more votes than any Republican in any primary, you know, ever. I mean, the guy's done an incredible job. He's really has grown the party, he has brought the party together for whatever that's worth. And listen, if he doesn't have the Speaker's vote or if he doesn't have, you know, his will, or whatever may be, we will go on.  Right? And those people will continue to march behind my father. Would it be nice? Yes. Is the ultimate goal to beat Hillary Clinton? Yes, that's everybody's goal. No one wants her to be president. It would be an absolute disaster. So, everybody should band together and they should march forward. If he doesn't have it, will life go on? Absolutely.

KELLY: Speaker Ryan seems to be saying, you're married, right? I'm married. He seems to be saying, like, it can't be resolved like that fight with your spouse, like, all right, I mean, it's fine, right? We're fine, we're good, right? You have to actually hash it out. They have to sit down, they have to have some candlelight, they have to really get deep and get emotional.

E. TRUMP: Well, I think that's right. And I think the difference with my father --

KELLY: You do?

E. TRUMP: So many, well, in a certain way, yes, sure. My father has never walked the halls of Washington with these people. He's built amazing businesses his entire life. Right? I mean, he's been based in New York.  This isn't his thing. Right? So, he's going into Washington, he needs to get to know these people. These people needs to get to know him. And my father is incredibly a likeable guy.

KELLY: What if they want him to change? What if they want him, you know, we don't like what you said about Planned Parenthood, you know, we don't like what you said about trade. What if they want that?

E. TRUMP: He probably won't. He speaks from the heart, right? He's not bought by anybody, he's self-funded his campaign thus far. Right? He has got his own ideas, and those ideas obviously are resonating with people.  Because he's winning. So, I'm not sure how much he will change. I mean, are there little things here and there? Yes. Possibly. But, you know, my father carries real conviction with him. He carries real belief with him.  Obviously, the people are lined up behind him. You know, so he's going to go to these meetings. No question with an open arms. You know, but he wants to win. And is it smart for the Republican Party to embrace it? I mean, it's over, he's the nominee. Is it smart for them to embrace it? Of course it is. But we'll see tomorrow.

KELLY: Let me ask you about you, 33-years-old, married, no children yet.  A dog. But that's how it starts. That's how it starts.


You are the son of Donald and Ivana Trump, right? Ivana is your mom.

E. TRUMP: Yes.

KELLY: So, when you were being raised, what role did your dad Donald play in your upbringing? Who did you live with mostly? What influence did they each have on you?

E. TRUMP: Oh, my father is my best friend in the world. I mean, we spent -- we literally every minute of free time in his office, I'd be playing with Legos. I mean, I was just always around him, I was always around his company, I was always listening to him, you know, making the deals. We were very close and as very close to my mother as well. I mean, she's really an amazing woman, and very sporty and very active. But, you know, I have great parents. I mean, I really really have great parents. They were parents that made us work. Right? There were no free handouts.

KELLY: That's I want to ask you. How are you not a spoiled brat? Because you're not?

E. TRUMP: Listen, my father threw us on construction sites at a very young age. Right? I mean, he gave us a sledgehammer and we go in and we would break down walls and we've run electrical wiring. I mean, he wanted to teach us the trade and what we do every day which is build great buildings, and those great projects. And then again, if we wanted a bike, we went and bought that bike, if we want fishing rod, we went and bought that fishing rod. Now, he spoiled us with education, right, I mean, he always believed in going to great schools and getting great grades and really, you know, taking education very seriously. But at the same time, he put us to work.  I mean, there really was no free time.

KELLY: Did he ever discipline you? What did he do when you, you know, got --

E. TRUMP: Believe me, he could look at us and we knew we were disciplined but, you know, he was great. I mean, he had very high expectations for us.  But he was also very fair and he was loving and he was fun and he was jovial. And, you know --

KELLY: Give us a memory of when he was fun?

E. TRUMP: I got so many.

KELLY: Just pick a favorite. Like what, all right -- give us where he did something embarrassing. You know, something you kid him about.

E. TRUMP: So, Watters was in our office saying, he picked a picture off my shelf, right? Of my father and me on a bulldozer. All right. I mean, we should go on his construction site, his awesome construction site, we would hop on bulldozers together and he would let us, you know, drive through walls and, you know, big ditches --

KELLY: That's not embarrassing. I want something embarrassing. If you asked me about an embarrassing story about my mother, I could keep you here all night.

E. TRUMP: All right. Listen, he certainly sent roses to bunch of girls that I didn't know about, because he liked them for me. All right?

KELLY: Oh, no way! He's just trying to set you up.

E. TRUMP: Absolutely.

KELLY: Very nice.

E. TRUMP: But he is a great man. I love him to death. I mean, he's my mentor. He's again, my best friend. And I'm so proud of everything that he's accomplished.

KELLY: Now, in the moments when he is not great, does he take council from anybody?

E. TRUMP: Yes, I think he very much does. You know? But he is also a guy who makes up his own decision. Right? A lot of people will give opinions, and you know, sometimes he'll follow them, and sometimes he will go off and do his own thing.

KELLY: Who do you think is his chief adviser?

E. TRUMP: I think we are. I think Don, Ivanka and I are. I mean, he spent a lot of time with us and, you know, we have a very social relationship.

KELLY: Is there a hierarchy there in my mind, Ivanka is at the top. But you tell me --

E. TRUMP: Ivanka is the princess, and she's the daughter and she's amazing. And, you know, Don and I are a little bit of the maybe brutes, you know, whatever you want to call it. But no, we're incredibly close.  And I can't tell you how often it is that 6:00 in the morning I'm speaking to him or 11:00 at night I'm speaking to him. And it's an amazing relationship. I mean, it's really just a great relationship.

KELLY: Well, the three of you have turned out so beautifully. It's fascinating to get to know you a little better. Thank you very much for being here.

E. TRUMP: Thanks, Megyn.

KELLY: All the best to you guys. Well, one very well-known Trump opponent is getting a lot of attention tonight on social media for a Facebook message that has now reached more than a million people. Brad Thor wrote that Donald Trump failed his litmus test of liberty and has repeatedly worked to undermine it. He also encouraged those who want to, quote, "blow up Washington to consider what will happen if they do." This is part of that here. You watch.

Joining me now is Brad Thor, former member of the Homeland Security Department Analytic Red Cell Unit. And author of the new book foreign agent along with Trump supporter David Wohl. Great to see you both.


KELLY: Brad, you just heard that interview with Eric Trump. You heard the man he knows, you know, incredible with his children, giving fun, fun loving, honest. Why do you not see him that way, and why can you never get behind him?

BRAD THOR, FORMER MEMBER, HOMELAND SECURITY DEPARTMENT ANALYTIC RED CELL UNIT: Well, his children obviously see a very private, personal part of Donald Trump. I'll tell you. I wasn't very moved by that interview.  Because they're saying Paul Ryan can take him, leave him, they don't really care, they don't need him. Just like they don't need conservatives. And, you know, this idea that they're his chief advisers also troubles me. You know, we kept hearing that Donald Trump was going to become more presidential. We will going to see that.

And even after the Wisconsin win, he goes on morning television and he is still talking about the Rafael Cruz, JFK assassination garbage in that rag, the national inquirer. And then he is also calling George Will a loser, the same day. I don't think we're going to see -- I think Donald Trump is interviewing for the most important job in the world right now, and we're seeing him at his best behavior, this is as good as it gets and it's horrible.

KELLY: David, what do you make of that point specifically the reference to Raphael Cruz and, you know, George Will as a loser and that kind of thing?

WOHL: Well, this is what people love about him. This kind of a guy.  Despite his extraordinary wealth, his extraordinary political popularity, he gets down and dirty with people and he lets them have it when he feels it's appropriate. But Megyn, he's got policies that people love. I mean, I have neighbors, they have to firefighters as neighbors, a teacher who's a Democrat, who loves them. And they're going to vote for him. His policy of pro-Second Amendment, his policies of pro-life, pro-protecting the border, not selling America out, making America first. Appeal to everybody across the political spectrum, and you can nitpick at little things he said in the past. And I read Brad's article, he called him a despot. He's not a despot. He's a deal maker. He's made a career out of give and take.  The kind of give and take that will end up benefiting America.


THOR: And Megyn --

KELLY: Hold on, David, give him a chance to weigh-in. Go ahead, Brad.

THOR: I didn't call him a despot. What I said was, is that if you look at Donald Trump's character, he particularly has a very disturbing character trade which is, tilt toward authoritarianism. And throughout history, when you have leaders that tilt toward authoritarianism, very bad things happen.  When Trump talks about what he'll do to Jeff Bezos, when he becomes president, and when he talks about what he'll do with the military and they will obey his orders no matter what.

KELLY: Okay. But let me ask you, let me ask you this, Brad. Because he would say, the thing about the military he took back. But the stuff about Jeff Bezos and the Washington Post, you know, I think Trump would say, that's was just bluster. You know, bluster.

THOR: Well, Megyn, he's interviewing now. I mean, he changes his position, the guys has more positions than a porn star. Nobody knows what he really stands for.

KELLY: That's the only thing --

WOHL: You know, Brad --

KELLY: Go ahead, David.

WOHL: -- is a very intelligent guy. There's no question about that. But Brad, does it concern you, at this point in time given the status of everything right now. That when you condemn Donald Trump, you are becoming a de facto Hillary Clinton surrogate. Because all of the people --

KELLY: Let him answer that. Let him answer that. Because people make that suggestion. Go ahead. Go ahead, Brad.

THOR: David, here's the deal, and I respect your admiration for Donald Trump and your surrogacy for him. But when is he going to try to win us over? The guy -- I've said this repeatedly, I think he has got some great ideas. But it's time to start acting presidential. I don't want whistles in the White House.

WOHL: Well, I got to say. I got to day. No, he has won over --


KELLY: Go ahead, David.

WOHL: He's won over tens of millions of Americans, and at this point, I have to say, Brad, I do respect --

KELLY: Tens?

WOHL: Up to you.

THOR: Wait. Where do you get tens, David?

WOHL: Up to you. He's got more than 11 million --

KELLY: Let David finish his point.

WOHL: Eleven more votes than anyone in history.

KELLY: Where are we going to say, David? It's up to you, what?

WOHL: It's up to Brad now to come to Donald Trump's side.


KELLY: Hold on, I'm going to give you the floor in a second, Brad. I'm going to give you the floor. Let him finish. Go ahead, David.

WOHL: He does not have to come to people like brad hat in hand down on one knee saying, please, people like me, he's already accomplished that. So many people like him now, they've given him a huge mandate. And it's up to Brad to come over to his side.

KELLY: Okay.

WOHL: And I think Brad will.

KELLY: Brad, go ahead.

THOR: I am not going to come over to Donald Trump if he's acting like this. And that shows you, Donald Trump is not only extremely arrogant, but David, that statement, as a fellow American is incredibly arrogant that somehow I have got to go to him, he wants to represent me. He's an American, no better, no worse than I am, and he has to prove himself worthy of that offense. That kind of arrogance is beneath the dignity of the entire country.

KELLY: All right. I'll leave at that. It's a great debate. Brad Thor's Facebook post now has been seen by almost a million people, and that's the thing with Brad, whatever he writes, everybody reads it. That's why he's such a successful author. It's great to see you both.

THOR: Thanks, Megyn.

WOHL: Thank you, Megyn.

KELLY: Well, we also have some video tonight that may cause news headaches for Hillary Clinton. Watch.


UNIDENTIFIED MALE: With the Clintons, nothing is sacred. Everything is for sale. But we are the ones who are paying the price.


KELLY: That is part of the trailer for the new documentary, "Clinton Cash." And Dana Perino joins us just ahead on that film and how it could affect the Clinton campaign.

Plus, THE KELLY FILE investigates after the DOJ announces, it will not go after the death penalty for the top suspect in the Benghazi terror attack.  Why not?

And then we're seeing a series of angry new attacks on Donald Trump after he talked about setting up a commission on radical Islam and the threat of terrorists coming to the United States. That report is next. Stay tuned.


UNIDENTIFIED FEMALE: And so with my Muslim, Christian, Jewish, Buddhist, Hindu and nonreligious brothers and sisters who are gathered here today, I say no to the fascist ideology of Donald Trump. Enough is enough. Enough is enough.



KELLY: Breaking tonight, we are seeing a growing series of attacks against Donald Trump from some on the left and some in the Muslim community. After the candidate today talked about setting up a commission to look into radical Islam. Speaking to FOX News earlier today, Trump said he's calling on former New York City Mayor Rudy Giuliani to spearhead the group.


STEVE DOOCY, FOX NEWS ANCHOR: What about the temporary Muslim ban?

DONALD TRUMP (R), PRESIDENTIAL CANDIDATE: Well, we have a ban. There are obviously some very bad things going on. And we're going to figure out what's going on. In fact, I'm thinking about setting up a commission, perhaps headed by Rudy Giuliani to take a very serious look at this problem.


KELLY: In moments we will hear from Carl Higbie a veteran supporting Donald Trump. But first, we are joined by Rula Jebreal. She's a journalist, foreign policy analyst and author of "Miral."

Rula, great to see you. Thank you for being here. So, what's your reaction to this proposal?

RULA JEBREAL, FOREIGN POLICY ANALYST: Thank you, Megyn. Well, it's odd since he -- Donald Trump talking about Giuliani who he supports. I think in December with Sean Hannity, he talked about the ban and he said it's unconstitutional.

KELLY: Yes. He said it's a real violation of the First Amendment.

JEBREAL: Giuliani himself actually said that it would create more terrorists. Look, let's leave alone the morality and even the -- I would say the legality of the issue. Let's talk about how practical this issue is. How he's going to be putting it in practice. Are we going to see custom on border officers at airports stopping Muslims? How are they going to know who's a Muslim and who's not? By measuring their beards, by their names? By their skin tones?

KELLY: Uh-hm.

JEBREAL: I mean, this proposal is nonsensical to start with. It would be very, very hard to enforce.

KELLY: Okay. So, let me pivot off of the Muslim ban just for a minute.  Because it wasn't clear in Trump's answer, whether this commission that's going to study radical Islam which he is considering he said is going to -- is about the ban or if it's about -- what are we going to do about the problem of radical Islam, if it's the latter, do you have a problem with that?

JEBREAL: If it's studying radical Islam, I think we need more and more 911 commissions. I think that was a great idea. And I wish we follow actually some of their proposals. However, if you Megyn, look at every serious foreign policy analyst or every serious politician on the right and left, Democrats and Republicans, whatever Donald Trump had proposed, they consider actually atrocious. They consider dangerous and grotesque, even Michael Hayden, the head of CIA, former head of CIA, who happened to be a Republican, he said that Trump proposals are actually act as recruiting sergeant for ISIS. These are people on the Republican side who are concerned about these proposals and policies. Let me go back to another proposal that we ignored little bit in the media. He actually talked about the database to track and register Muslims in America. I mean, this resembled what a pre-war German policy --

KELLY: Let me ask you this question.

JEBREAL: What will they did with Jews in Europe.

KELLY: You know, the rule that these kinds of proposals, the Muslim ban in particular has huge support within the Republican Party, like two thirds of Republicans are behind it. So, to those including Trump, who say the people want this, what say you?

JEBREAL: Look. Luckily there's voting process, two thirds of the Republican Party will go to vote and the country will decide who they want to lead them. However, I think we need a journalist to be very serious and explain to our audience on the right, on the left. To the American people how serious this issue is, and the backlash it would have because of these proposals. Look at what happened in history, these things not only don't work, and actually undermine our national security. And I'm not saying that because I'm a Muslim or because I'm an analyst. Look at the people who are working in the fields, what they are telling you and the data they are presenting.

KELLY: Uh-hm. Understood.

JEBREAL: Whether people who are ex-CIA officials or are in the Democratic Party or even the Republican Party.

KELLY: I got it.

JEBREAL: I think there's an important debate to be hold about extremism and radicalization. However, radicalization and extremists and violence and jihadists you cannot block it because you're blocking your borders, it's an idea.

KELLY: I understand.

JEBREAL: You can actually be radicalized on lying, be radicalized in prison.

KELLY: I agree with that.

JEBREAL: Be radicalized everywhere.

KELLY: Rula, I got to go because I have another guest coming.

JEBREAL: So, how high a wall should be to stop that radicalization?

KELLY: We have to be creative.

JEBREAL: I have to wrap you because I have another guest coming up. We'll have a hard break. But my thanks to Rula.

Let's turn now to Carl Higbie, a veteran supporting Trump and the author of the brand new book, "Enemies Foreign and Domestic." A SEAL's story. Here it is right here. Navy SEAL Story. My apologies Carl, but we have a hard break and we want to get you in.


KELLY: Let's speak about that, her point about the backlash, the backlash that would happen if such a policy were enforced. Because that gets people's ears perked up. Well, I don't want backlash from radical Muslims or, you know, the community?

HIGBIE: Well, we already having the backlash. That's the problem Megyn is we have this -- we have this very big problem with radical Islam here in America and globally. And we are seeing that backlash now. We are seeing this terrorists attacks all over the world. We just saw one today that happen overseas. And the fact is, we have to address it. Now, Donald Trump's Muslim ban, it was a broad sweeping narrative that he wanted to say, okay, here's the broad part, let's bring it down. Now, you know, Rudy Giuliani has said that hey, you know, maybe this might be unconstitutional, but he did say, we should stop this Syrian refugee crisis. That's a little bit narrow. Once we can pinpoint it, let's make it as narrow as possible just to keep out the bad people.

KELLY: And all the Republicans were saying we shouldn't be letting in the Syrian refugees, they all eventually -- most of them came around to that position. Trump's position was different from there, so it was just -- we are going to ban all Muslims, until we figure out what the hell is going on.

HIGBIE: Absolutely.

KELLY: But -- so -- he, it's a different policy. And if you're saying he's narrowing it to position that all other Republicans have, and that's a change.

HIGBIE: No, I'm saying that Rudy Giuliani has said that he wants to ban the Syrian refugees. Now, Donald Trump has said, hey, look, you know, I'll come a little bit to the middle on this one, maybe the Muslim band was a little bit too broad streaking. And that's what he knew at that time. But that just shows that he can adapt, he can take advice from people and say, if he's going to really be honest --

KELLY: His critics will say, that proves he'll say anything at any time to please his audience.

HIGBIE: I mean, that's every Democratic candidate across the board though.

KELLY: He's a Republican.

HIGBIE: No. I know but every Democratic candidate has always --

KELLY: You're a Republican --


KELLY: Are you demanding more of your Republican nominee?

HIGBIE: Well, I think what he's doing. He's making intelligent strive as far as he makes a broad generalization then he comes to the middle once he knows more and narrows it down as much as he can. His best interest is the safety of the American people.

KELLY: Uh-hm. To her point, I asked her about how the people are behind this. You know, the Republicans in particular are behind the Muslim ban that Trump talked about.

HIGBIE: I'm for it personally but --

KELLY: Her point is basically, that the experts don't agree with the public. That the experts sort of say, if you pay attention, you'll see that this actually will not work out the way you think it will.

HIGBIE: They're not in favor of us no matter what we do. So, look, you know, I'm in favor of every some sort of Muslim band on the enforcement of that ideology into our culture. I think that Islam is not necessarily religion. It's a political ideology masquerading as a religion and its broad sweeping and there's a lot of things that don't co-exist with -- and democracy in America.

KELLY: Would you ban the London mayor?

HIGBIE: I don't know. I don't know. I'm waiting to see how that plays out. Because I think it's going to be very controversial.

KELLY: You don't know whether you would ban the London mayor from coming to the United States?

HIGBIE: Oh, from coming to the United States, for now, yes. And so, I can identify the problem.

KELLY: Fascinating.

HIGBIE: Yes. Hardline.

KELLY: Carl, I see that.

HIGBIE: I'd look at -- in the eye and I know that it's something to be that we really need to watch for. I think Islam as a whole is not going to cost ask us and I think it's only a matter of time before we start seeing more and more problems as we've seen already develop.

KELLY: Wow! Well, you need some headlines there. "Enemies Foreign and Domestic." Carl Higbie, thank you for being here.

HIGBIE: Thank you, Megyn.

KELLY: Taking your thoughts on that on Twitter @MegynKelly.

Coming up, a political takedown in less than 140 characters. Senator Elizabeth Warren goes after Donald Trump on Twitter, but it's his response you don't want to miss.

And then despite the death of four Americans in Benghazi. The DOJ announced the alleged ring leader of the attacks will not face the death penalty. Marc Thiessen has some thoughts on that right after this break.


UNIDENTIFIED MALE: I was on my belly the last time I went in before we got counter assaulted on the consulate. And the smoke was still down there, and still you only see about maybe two feet in front of your face. And, you know, it was just so thick and so hot, it was just like being in a brick oven.



KELLY: To you guys, having lost Tyrone and Glenn. When you look back and you think about Benghazi. What does it mean? Why did they die?

MARK GEIST, BENGHAZI SURVIVOR: They died serving their country. I mean, they're doing what we love to do. I mean, and that's serving other people. That's kind of our whole make-up, I mean, it's just like, why would you go -- why do we run to the -- you know, why do we run to the gunfire? It's because that's who we are.


KELLY: That was former CIA contractor Mark O Geist back in January, describing what it felt like to watch his friend die, his friends die and they were defending other Americans during the Benghazi terror attacks.

That guy Geist, his arm was hanging by a vein, thanks to the fight he had. OK. So, that's just one guy who survived.

This week, the DOJ announced the alleged ring leader of the attack in Benghazi will not face the death penalty. This despite the death of four Americans including the first U.S. ambassador to die in the line of duty since 1979.

Trace Gallagher live in our West Coast newsroom with the report. Trace.

TRACE GALLAGHER, FOX NEWS CORRESPONDENT: Megyn, Ahmed Abu Khatalla was captured by U.S. commandos in 2014 and brought to the U.S. aboard a Navy ship where he was questioned by team of FBI interrogators.

At that time, Attorney General Eric Holder, Khatalla's capture proves the U.S. government will expand every effort to capture terrorists who harm U.S. citizens. Critics of the Obama administration said the prosecution should not be handled by a civilian court, but the feds said their case was strong and vowed to seek the ultimate penalty.

Now the DOJ is shifting saying, quote "The department is committed to ensuring that the defendant is held accountable for his alleged role in the terrorist attack. And if convicted he faces a sentence of life in prison."

Much of the government's case remain secret and the DOJ won't explain its reversal, except to say they do these on a case by case basis.

But a legal source tells Fox News that prosecutors are having trouble getting some evidence admitted into court as well as bringing witnesses from Libya to the U.S. for trial.

And with the case back in the headlines, so too is the U.S. response to the Benghazi attacks. Overseeing by then-Secretary of State Hillary Clinton, which led to congressional hearings, and eventually uncovered information about Clinton's use of a private e-mail server during her time at the State Department.

Unlike most terrorism suspects Abu Khatalla does not (AUDIO GAP) in a plea deal. Instead, he maintains his innocence and is insisting on a jury trial, meaning the Benghazi attacks could be in and out of the headlines for months to come. Megyn.

KELLY: Thank you, Trace. Joining me now, Marc Thiessen, a Fox News contributor and former speechwriter for President George W. Bush. Marc, good to see you.


KELLY: So, there you have it, they've made their decision.

THIESSEN: Yes, they have. They basically they're saying, death penalty, no death penalty, at what difference at this point does it make? Well, it makes a huge difference. And it makes a huge difference of those people you had on just before who saw their friends die.

And think about this, two years ago, the Justice Department sought the death penalty in the case of the Boston marathon bomber, Dzhokhar Tsarnaev. At that time Eric Holder put out a statement which said, and I'm going to read it to you, "The nature of the conducted issue and result and harm compel this decision."

Compel? Do they not compel the same decision in the case of the Benghazi attack? Were the nature of the conducted issue and the result and harm not equally great. This guy was involved in a premeditated Al Qaeda terrorist attack against a U.S. diplomatic facility on the anniversary of the September 11th, 2001 terrorist attacks.

He killed a U.S. ambassador, the first one killed in the line of duty since 1979. Plus, three other American serving their country risking their lives abroad to protect us. And we don't pursue the death penalty for him, but we do for the Boston bomber? It's absurd.

KELLY: What do you -- what do you think is the reason for that? Because here you have this guy, who allegedly killed four Americans including our ambassador, and injured countless others.

And as you point out, the Boston marathon bombers in an act of terror, killed four people, three at the scene of the bombing, plus a police officer later and injured countless others

And so, in one case it was very clear to the DOJ that the death penalty was in order, in this case, why do you think it was not?

THIESSEN: Well, they haven't explain their reasoning so we can only speculate, that maybe it's possible as Trace suggested that they don't have a very strong case, and that they can't -- they can't -- they don't think they can win a death penalty case, which is pretty pathetic.

Because it means they haven't gotten the other people involved they don't have other witnesses, they don't have the information yet. That's pretty bad as it is. Because they are the ones who keep telling us article courts are the way to go.

If they can't get a death penalty conviction, then that's an indictment of them. But the other possibly quite frankly is that it's really inconvenient for Barack Obama and Hillary Clinton to have a big trial in the death penalty trial.


THIESSEN: Because if they pursue just - not a death penalty case just the regular case, then they only have to Annie McCarthy, a former prosecutor. I had a good article in National Review about this - that they only have to pursue a very narrow case, that shows that this guy was there at the time of the attack on the night of the attack and participated, and boom it's over.

If they go to a death penalty case, then they go -- after they convict him, it goes into a sentencing phase where there is essentially a second trial where they have to convince a jury to unanimously -- to unanimously vote to execute him, and he can then turn that into a trial of the United States.

He can say, well, I was a big player. And these other 10 guys, which the Obama administration didn't capture, were the real guys behind it. Where he can start asking for information about when did -- when did they know did was a terrorist attack and when did they know we can have discovery and have all sorts of information put out. So, this could be very inconvenient.

KELLY: The interesting thing about this, is this guy. Do you remember the strawberry frappe? This is the guy.


KELLY: The New York Times tracked him down. They couldn't find him. They were like we are going to go on the hunt, we're going to find the people who perpetrated this attack.

Meanwhile, they hadn't arrested anybody. The New York Times is talking to this guy over a strawberry frappe overseas. S, the New York Times found him but we couldn't.

But, you know, he talked. You know, as the frappe has the ability to make us all do. He talked. And in that interview he said something to the effect of, the Americans blew it, you know, where was the security.


KELLY: So, question whether they want him repeating that message in a U.S. courtroom.

THIESSEN: Absolutely. And the other thing that he said when he was over the strawberry frappe, when he was holding court in Benghazi with reporters, he said that this really wasn't its premeditated terrorist attack. This was a spontaneous protest in response to a video. That was his explanation for it.

KELLY: Sounds familiar. Like he's in agreement with the Obama administration. Don't they want him to say that?

THIESSEN: Exactly. And so, no, they don't want him to said that. Because what happens is, Obama administration federal prosecutors have to go to and lay out the case while this was a premeditated terrorist attack. And they have to say when -- what we knew -- what they knew, when they knew it.


KELLY: It's directly contrary to the message they've been spinning. In other words, they've been saying this is not a preplanned terrorist attack.

THIESSEN: Exactly.

KELLY: That's what they said so many times. And now he's going to get out there -- I see, now they have to choose which narrative they want to marry themselves to if they let him to talk.

THIESSEN: That's exactly right. So, they're looking. What they really want is a plea deal. Because they want this case to go away. So, if you notice who's been praising them today. It's the terrorist lawyers are the ones praising them. They said it was a courageous decision.

KELLY: Oh, boy.

THIESSEN: They want to convince this guy to plea so they don't have to have a trial. So, what's happening here is they don't want any of the stuff.


KELLY: I know just the enticement they used.

THIESSEN: Strawberry frappe?

KELLY: Just saying. We know he's a fan. Mark, great to see you.

THIESSEN: Thank you.

KELLY: Also tonight, the book "Clinton Cash" became a bestseller when the author penned a lengthy investigation into the Clinton Foundation. Now it's a documentary set to be released hours before the democratic convention begins.

Dana Perino is next on whether this could hurt the former Secretary of State.

There she is. Hi.


Plus, a Twitter rant by Senator Elizabeth Warren has Donald Trump on the offensive. Stay tuned.


ELIZABETH WARREN, U.S. SENATOR: My aunt bee has walked by that picture at least 1,000 times remarked that he -- that her father, my papa had high cheekbones like all of the Indians do.



KELLY: New details tonight on a hot new trailer making headlines. You may remember "Clinton Cash" as the bestselling book that involved allegations of corruption against the controversial Clinton Foundation.

Now that book has been made into a documentary film, and we are learning that it will be released the night before the democratic convention kicks off this July. Here's a closer look.


UNIDENTIFIED FEMALE: Greetings from Washington.

HILLARY CLINTON, D-PRESIDENTIAL CANDIDATE: I want to thank all of you for your work to root out corruption, that weakens economic development and organized crime, and undermines the promise of democracy.

UNIDENTIFIED MALE: I believe in the oldest adage in American politics which is follow the money.

UNIDENTIFIED FEMALE: A new report today claims that the Clinton Foundation gives 10 percent of its money that it raises to actual charities.

UNIDENTIFIED MALE: Enormous amounts of money have flow to the Clintons, from foreign governments, foreign financiers and businesses.

UNIDENTIFIED MALE: The Clinton Foundation dropping its self-impose ban and collecting funds from foreign governments and entities.

You have a foreign corporation or a foreign government that wants something from the State Department while Hillary Clinton is Secretary of State. They will make a large payment to the Clinton Foundation, that will be followed by favorable action on their behalf.

UNIDENTIFIED MALE: They've created a model for massive self-enrichment that allows you to go into so-called public service but get extremely rich at the same time.

BILL CLINTON, FORMER PRESIDENT: Oh, yes, I have to pay our bills.

UNIDENTIFIED MALE: Before we had to worry about money from Wall Street and big labor. Now we have to worry about it coming from around the world and infecting our politics. With the Clintons, nothing is sacred, everything is for sale.

Bu we are the ones who are paying the price. Maybe, just maybe, the American people are tired of being sold out.


KELLY: So, joining me now to discuss that, Dana Perino, co-host of the five. She's served as White House Press Secretary under George W. Bush. Dana, great to see you.

PERINO: Thanks for having me.

KELLY: So, Stirewalt was, hey, there is a nice little pepper jelly for her right before her convention kicks off.

PERINO: When the book came out a year or 18 months ago, it was quite explosive, and I remember it wasn't just the right who was saying, my gosh, look what the Clintons are doing. It was a lot of journalists and some people on the left.

The journalists were saying, this looks little fishy like they don't really care about the Benghazi unbelievably giving your last segment. They don't like to care about the e-mail thing, they're like, oh, it doesn't matter to them.

This actually seemed to bother them. Now this documentary probably will not be embraced by the mainstream media or the left, but I do think that it will pack a punch, and it's just yet another bad thing for Hillary.

KELLY: The allegations were essentially that people were paying to have access to her, to get favors done by her while she was Secretary of State and, you know, her husband was at the Clinton Foundation, her daughter was running the Clinton Foundation, and so on.

And so, you can't do that. You can't buy favor from a politician and get favorable behavior and response.

But Steve Bannon he is the producer. He is the guy from Trump park, right? Like this is not even an attempt to be a non-partisan thing.

PERINO: The "Clinton Cash" the book really was a partisan thing.


KELLY: Right. It's surprising to see Schweizer partner with Bannon.

PERINO: Well, I mean, he might have been the best option for Schweizer at that point. But I do think that something like when Bill Clinton says I had to pay our bills, it's probably taken out of context.

I remember when Michael Moore did his documentary about President Bush and he has that -- he cuts that piece at the golf course. He says now watch this drive. And it looked terrible for President Bush.

So, regardless of who produced it, like for people who are going to watch it that are still either undecided or maybe not that motivated to vote, could this hurt? Yes. And yes, she does have a problem with women. Corruption bothers them.

KELLY: But why do you think that will have any greater impact than the book did or for that matter, the film 13 hours, you know, about the Benghazi heroes.

PERINO: It's one of the reasons why your show is so popular, it's visual. We are a visual -- exactly right.

KELLY: Here's your thing.

PERINO: This is why people tune in to watch because it's good television. And people, I remember the Clinton Cash book. I mean, if they watch Fox, maybe they go have a big memory. The visual memory is easier to remember.

And remember, Donald Trump has decided that his nickname for Hillary will be 'crooked Hillary. It's already stuck. So, you add something like this documentary, which is not coming till July but we're talking about it here in May, so you're going to hear about this for the next three months. Yes, it will have a lasting impression.

KELLY: What do you make of the fact that, you know, the Clinton campaign is going to release everything it has against Donald Trump. And even now we're hearing some of the mainstream media like the Washington Post is just going deep dive on Trump's background.

And so, could this threat potentially be neutralized by Hillary? And how -- we always talk about people underestimating Trump. What about those who underestimate the Clintons when it comes to fighting with bernacles.

KELLY: That's another reason people are going to tune in every night from between now and November 8th, because you don't know what's going to happen.

KELLY: You're just full of good news.

PERINO: I am. I really do always have good news.

KELLY: And the good news is.

PERINO: And another reason to, you know, just keep paying attention here.

KELLY: Thank you, Dana.

PERINO: So, when Trump goes after Hillary, a lot of people say, well, everyone knows everything about Hillary, but no one's gone after Hillary in this way yet, it will make some people uncomfortable, it will probably be a very uncivil campaign from both sides and it will just be sort of race to the bottom.

I would expect that they're going to try to do everything to win. So, whatever they have about Donald Trump, they will us and the media will probably use it. But can it be neutralized? Not by this documentary, but by Donald Trump, maybe.

KELLY: He said, 10 days ago or so, we can go the low road.

PERINO: Yes. If she wants. It's her choice, right?

KELLY: Dana, great to see you.

PERINO: Thank you.

KELLY: Well, Senator Elizabeth Warren is at it again attacking Donald Trump on Twitter. But Trump was quick to fire back. And wait until you see how he responded right after this break.



WARREN: My Aunt B. has walked by that picture at least a thousand times, remarked that he -- that her father, my papa, had high cheekbones like all of the Indians do.


KELLY: That was Massachusetts Senator Elizabeth Warren taking us on a little trip down memory lane as she and Donald Trump now wage battle of the words made up of 140 characters to be exact.

We'll tell you what we're talking about now through Trace Gallagher who has the story. Trace.

GALLAGHER: Megyn, Senator Warren has now unleashed her third rapid fire Twitter attack on Donald Trump in less than a week calling Trump out for his stance on Wall Street, minimum wage, and women, posting, quoting here, "we get it, when a woman stands up to you, you're going to call her a basket case, hormonal, ugly."

Of course Donald Trump isn't one to lay low. And so joing the ranks of little Marco, lyin' Ted, and crooked Hillary, Trump has now dubbed the Massachusetts Senator 'Goofy Elizabeth in which Warren responded quoting again, "Goofy? For a guy with the best words, that's a pretty lame nickname. Weak."

Now there has been speculation that Warren could be on the short list of Hillary Clinton's V.P. nominees. But for now Warren says she's more interested in making sure Donald Trump never reaches the White House.

And Donald Trump is now suggesting he knows why Warren didn't run for president in 2016 tweeting, "Goofy Elizabeth Warren didn't have the guts to run for POTUS. Her phony Native American history stops that and V.P. cold."

You recall during her 2012 Senate campaign, it came out that she once listed herself as having Native American roots. Here's part of how she then explained it. Watch.


WAREN: Being Native American has been part of my story, I guess since the day I was born. I don't know any other way to describe it. We grow up on what our family tells us about our family.


GALLAGHER: Late today, Trump veered off the Native American slams instead accusing Warren of using the woman's card. Megyn?

KELLY: So, that was fun. Great to see you, Trace. We'll be right back.

GALLAGHER: You, too.


KELLY: We're just six days away now from my big sit-down with the presumptive republican nominee Donald Trump. You heard Brad Thor saying that he doesn't like Trump because he insults people.

Well, we talk about that in the special among many other things. Trump as you've never seen him Tuesday on my Fox broadcast special Megyn Kelly Presents, that's over on big Fox, Fox Broadcasting, American Idol Fox, empire Fox. Check your local listings.

See you tomorrow.

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