Top secret e-mails found on Clinton's private server
Report: Hillary turning over server to Justice Dept. on 'The Kelly File'
This is a rush transcript from "The Kelly File," August 11, 2015. This copy may not be in its final form and may be updated.
MEGYN KELLY, HOST: Breaking tonight, big news in the Hillary Clinton e-mail scandal with reports that the classified information previously found on her server was actually far more sensitive than we knew. In fact, it was top secret information that never should have been left vulnerable or insecure. This as we learn that the Justice Department is now seizing custody of the server that Mrs. Clinton vowed she would never turn over.
Welcome to "The Kelly File," everyone. I'm Megyn Kelly. The news is just breaking on this. It began just hours ago when we received reports that an inspector general for the intelligence community has identified top secret information on the personal server Mrs. Clinton used for years while secretary of state. Top secret is reserved for only the most sensitive material. This after Mrs. Clinton has said for months that there was no classified material never mind top secret material on her server, period and the report. Then news broke that the FBI has now taken possession of that classified material from Mrs. Clinton's lawyer. And then moments before we came to air confirmation from team Clinton that the Department of Justice is now taking custody of the server which the State Department had been fighting, which Mrs. Clinton had vowed not to give.
Shannen Coffin is a former deputy assistant attorney general in the U.S. Justice Department Civil Division and a former counsel to Vice President Dick Cheney.
Shannen, good to see you tonight. So, Not only did she have classified information which she told us repeatedly she did not have, she had top secret information in her possession and it sounds like it was from -- I want to get the -- it was operational and geospatial intelligence from the CIA and the NGA. How bad is that?
SHANNEN COFFIN, FORMER DEPUTY ASSISTANT ATTORNEY GENERAL IN DOJ CIVIL DIVISION: Well, this is heavy duty stuff. It's sensitive, classified compartmentalized information. What you call SCI. And this is the sort of stuff that the highest level of security is taken in order to protect it. You have to have this information stored in a secure facility that's electronically swept that cell phones can't get into. I mean, and the reason for that is to protect sources and methods of our intelligence community. This is very, very serious information.
KELLY: And now, what do you make of the news because they had found, first she said, there is no classified information. None. It doesn't exist. In fact, here is the soundbite to that effect, here's the soundbite number one. Stand by. We're trying to get it.
It went away. I don't know what that means Shannen but it is gone. But trust me, it exists. Let me read it for the viewers in part. Okay? There is no classified material. This is March 10th. There is no classified material. I did not e-mail any classified information to anyone on my e-mail. And then here she is again in July, I've never sent nor received any information that was classified, never sent or received any information that was classified. Did not receive or sent anything that was classified. Now it turns out not just classified top secret and on top of that the server, the server she said she would never turn over is being turned over. In fact, we believe it is in the DOJ's possession right now.
COFFIN: So, let me give you a shock on that. She didn't turn it over voluntarily. The FBI is doing an investigation. The FBI's investigation is looking into possible criminal mishandling of classified information. And in the course of that they are asking who had access to that server while she was using it, while it was operational. Who has had access to it since? They are doing a sweeping investigation here and the first thing they should be doing and should have been doing weeks ago was securing that information and making sure no further national security damage could be done. It's about time, is what I have to say on that.
KELLY: Uh-mm. The Washington Post is reporting that there is no evidence she used encryption to shield the e-mails from foreign intelligence services or from other prying eyes. So, what we have here is top secret U.S. intelligence information on the private server in her Chappaqua home which we have already reported was being maintained by one guy who stepped in to take it over. It wasn't President Clinton's server. It was a separate server, contrary to her denials of the classified information. And now despite her objections finally DOJ and FBI have said, we are taking it. We are taking it, Madame. And a further exploration is underway at this moment. Where does this go from here?
COFFIN: Well, look, this is a full blown investigation. And it is going to look at other people who used this server. Huma Abedin, Cheryl Mills apparently didn't use this e-mail address --
KELLY: As chief of staff.
COFFIN: -- but she was using some form of private e-mail. Everyone involved at the highest levels of her administration in the state have lawyered up with some of the best lawyers in the country.
KELLY: Uh-mm.
COFFIN: You don't do that unless there is a serious concern for criminal exposure. And that's exactly what you have here. The FBI is run by Director Jim Comey who has a reputation, well earned in the Bush administration for independence is going to turn over every stone and there is every reason to suspect that classified information now we have confirmation that it was mishandled and exactly who did it go to. Megyn, there is one important point in all of this, in the early reporting on all of this, it was reported that there wasn't even a security certificate on her server. That is the information just went out unencrypted over the internet where anyone could get it. It was out there served on a platter for foreign intelligence services which I'm sure they got.
KELLY: Wow! Shannen, thank you.
COFFIN: Thank you, Megyn.
KELLY: Joining us now with more. Bill Burton, he's the former White House Deputy Press Secretary under President Obama. Bill, this cannot be okay. It cannot be okay to have top secret information on an unsecured server.
BILL BURTON, FORMER WHITE HOUSE DEPUTY PRESS SECRETARY UNDER PRESIDENT OBAMA: Can I just start by saying that it's -- I feel like I am through the looking glass listening to Dick Cheney's lawyer talking about criminal exposure. I am just going to leave that there. But let's just keep in mind here that Hillary Clinton did what all the other former secretary of states did with their e-mail. The only thing that's different is that she voluntarily turned over her e-mails. So, you know, as they went through this process --
KELLY: That's not really answering the question at hand. Which is, how can it be okay? Let's accept it was unacceptable for the others. I don't know. I mean, know Hillary sent out a directive saying don't do this. Don't use your personal e-mail for state business which she did. But how can it be -- you worked for President Obama. How can it be okay for top secret documents to be kept on an unsecure server up in Chappaqua?
BURTON: Well, first of all, the fact that it is the same practice that was followed by other secretaries of state is important. But second of all, if information that was sent or received was classified as top secret information after sent or received, you know, that's one thing.
KELLY: No, they are saying at the time. I look at that. I agree with you. It is different maybe she didn't know. What they are reporting tonight is that it was classified at the time she had it.
BURTON: Was it marked as classified in the e-mails? I think there is a lot of questions we don't know.
KELLY: I don't know the answer to that.
BURTON: Yes. I don't know the answer to that either --
KELLY: Will she ultimately changed her story to it wasn't marked as classified? She has said repeatedly on the record there was no classified information, period. It's nothing was classified. Now we find out classified, yes, and top secret information. Can you explain? I don't know what this means. Containing operational and geospatial intelligence. What does that mean?
BURTON: You know, I'm not an expert in classified terminology, but --
KELLY: It sounds bad.
BURTON: Geospatial I think.
KELLY: It sounds serious.
BURTON: I'm not, you know, Siri would know maybe. I don't know.
KELLY: I don't like Siri because she refers to me as mejen (ph).
BURTON: At the end of the day, I think we should keep in mind that this is also a practice other Republicans have used in this race. Jeb Bush had his own private e-mails. Scott Walker, Bobby Jindal, Rick Perry. People who are --
KELLY: But did they have operation, geospatial Intel from CIA and NGA from there? And that's the question. Let me ask you this last question because we are short on time. Honesty and trustworthy. Her numbers have been going down on that. This doesn't help, does it?
BURTON: Well, look, you know, Hillary Clinton is going to go up. Her numbers are going to down. Her numbers on honesty and trustworthiness have gone down consistent with the rest of her numbers going down. And when you have 16 republican candidates pounding on you day after day, I think you're going to take a toll. But, you know, once we get to a place where it is Hillary Clinton versus another candidate, I think you will see another story.
KELLY: It is 17. Don't forget Governor Gilmore.
BURTON: Oh my gosh! How could I forget Governor Gilmore?
KELLY: Rude. Great to see you.
BURTON: So, sorry. Nice to see you too.
KELLY: Thanks for being here.
Well, we have several other big breaking stories tonight including fallout from Donald Trump's first press conference since the debate. We're going to run a big portion for you right after this break.
And then campaign Carl and Mark Thiessen will join us with big news in first post-debate polling out of Iowa and New Hampshire. Some surprises in here.
Plus, did you see this? Watch.
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KELLY: An ugly moment as a Vietnam vet confronts Ferguson protesters for stomping all over the American flag. We'll take a look at the recent attack on cops, soaring crime rates and how trouble in America's biggest cities could impact the 2016 race for president. Sheriff Clarke is here.
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UNIDENTIFIED FEMALE: We ready for what?
PROTESTERS: We're ready for war!
UNIDENTIFIED FEMALE: We ready for what?
PROTESTERS: We're ready for war!
UNIDENTIFIED FEMALE: We ready for what?
PROTESTERS: We're ready for war!
(END VIDEO CLIP)
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KELLY: Breaking tonight, Donald Trump gave his first post-debate press conference just a short time ago answering questions about immigration, jobs and the big question whether or not he is still considering a third party run. Here is a big part of that.
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DONALD TRUMP, R-PRESIDENTIAL CANDIDATE: I think you're going to see lots of plans and you're going to see also, and you have to understand when you're coming up with a plan in business, you have to be flexible. There's got to be flexibility. And I recently bought something, not so recently, but Doral in Miami, everybody wanted it. If I would have sat down and said, here's a 12 point plan to get Doral. I didn't do that. I went in and punched and punched and beat the hell out of people and I ended up getting it. Everybody wanted it. All of the smart money wanted it. The OPO, the Old Post Office on Pennsylvania Avenue, everybody wanted it. I got it. In the Obama administration I got it, which is pretty shocking and I got it because I know how to get things -- I know how to get things done. You can't sit down and say, well, well, I'm going to come up with a 19 point plan to get the old post office and create it into a great hotel on Pennsylvania Avenue. The most sought after property, I think in the history of the General Services Administration. Trump got it. I'm not an Obama person. You probably heard that.
UNIDENTIFIED REPORTER: Now you're just asking people to trust you --
TRUMP: Well, I think there has to be a trust. There actually does have to be a trust. If you don't trust, you're not going to do very well. Jeb Bush will not be able to negotiate against China. Jeb Bush will not be able to negotiate against Mexico. Jeb Bush with Mexico said people come in, they come in, it's an act of love. Okay? It's not an act of love. We need a wall. We need a wall. You see what is happening with illegal immigration. And in all fairness, if it weren't for me they wouldn't be talking about illegal immigration. And I took a lot of heat that first week and then people realized I was right and they apologized to me. We will going to be announcing over the next two weeks, numbers and specifics knowing that what I just said is right. You really to have be flexible on jobs and everything else. But I am going to be speaking about it later. We are going to be taking jobs outside, we're going to be taking them away from China, away from all of these countries that are stealing from us. I mean, they are stealing our base, our money, our manufacturing. We are going to be bringing them back into the United States. I am going to be talking about this. Ford, as an example, is building a $2.5 billion automobile plant in Mexico. How does that help us? Except they'll be closing plants in Michigan and lots of other places. So, we are going to be talking about -- we're going to be bringing back jobs to the United States. Ten years ago everybody wanted the wall. The Democrats, the Republicans, they couldn't get it. You know, one of the reasons they couldn't get it? Environmental impact statements. Did you know that? There were toads. It's the most incredible thing. We will going to get the wall built. And it's going to be built right and Mexico is going to pay for the wall. Mexico is making a fortune off the United States. Mexico is going to pay for the wall. And they are going to be happy about it. You know why? They are going to be happy about it because the cost of the wall is peanuts compared to the kind of money they are making. Mexico is becoming the new China. I have a great love for Mexico. I have love for the Mexican people. I have thousands of Mexico people over the years. Mexicans have worked for me and they are now thousands. They are fantastic people, great spirits. But their politicians and their leaders are much smarter and sharper and more cunning. And I say the word cunning. They are more cunning than our leaders. I want to run as a republican. That's what I'm doing. I'm leading in every poll. The local and the national polls leading and by substantial margins. I hope that I will be the republican nominee because that is the best way to win. I'm going to keep the door open on the other. If I'm not treated fairly and the word is fairly. It doesn't mean well. It means fairly. If I'm not treated fairly we will see what happens.
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KELLY: Well, right before those remarks Donald Trump took credit for leading in the latest polls as you heard. But there is some other big news in the numbers just out from New Hampshire and Iowa.
And Carl Cameron and Marc Thiessen are here on that, next.
Plus, a stunning new claim about Freddie Gray, how he had previously tried to injure himself in police custody so he could sue and how the prosecutor in the case decided not to share that piece of information with defense lawyers. We'll do some digging on the defense's latest claims, just ahead.
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KELLY: Breaking tonight, new polls just out from New Hampshire and Iowa suggest several candidates got a big bounce from last week's big debate. In Iowa a Suffolk University poll now shows Donald Trump, Scott Walker and Marco Rubio in a statistical dead heat while in New Hampshire, a poll from Franklin Pierce University shows a surge for John Kasich and Carly Fiorina after they both went from almost nowhere to the top five.
Campaign Carl Cameron is out on the trail tonight. We asked him to walk us through the significance of the results. Carl.
CARL CAMERON, FOX NEWS CHIEF POLITICAL CORRESPONDENT: Hi, Megyn. Well, you were talking about John Kasich in the first instance in New Hampshire. A candidate who had gotten into the race only three weeks before that first debate qualified for the top ten and then with it has bounced into double digits and showing himself to be a real contender in the first of the nation states. And where Carly Fiorina is concerned, she was in the second tier and she is now essentially tied for fifth place with Ted Cruz in Iowa in that Franklin Pierce poll.
A huge jump for her and really sort of changes the dynamic. When you look at the Iowa poll that is where Marco Rubio's surge is really visible. He sort of faded in the early days of Donald Trump's candidacy. But clearly his debate performance was polished and impressed a lot of people. And again, in Iowa you see that again, Carly and Ted Cruz are knotted and basically tied. So, a big question about how this all affected Donald Trump who was at the top of the polls. Well, one of the polls suggested that having seen the debate about 54 percent of those who watched it said that they were less impressed with Mr. Trump. Having said that, it is clear we were here today in Mississippi with Ted Cruz, lots of questions about Trump. Lots of enthusiasm. He does fire up republican conservative based voters and yet 54 percent less impressed is not the kind of numbers that he is accustomed to saying he is winning with -- Megyn.
KELLY: What about the snap polls that we heard where he was the winner? They said, he was the winner?
CAMERON: Sure, snap polls are just that. They are taken in a snap, they are first impression and first impressions are often evolvable. And it changes. So, they are very quick. It's a very small sampling of people and it is hard to get accurate polls when you're doing it that fast. So, that first impression has apparently changed for those who solved the debate and had a chance to think about it, more than half saying as they are less impressed.
KELLY: Carl, thank you.
Joining me now with more, Marc Thiessen who is a FOX News contributor, former chief presidential speechwriter for President George W. Bush. Marc, good to see you. So, what is the lesson from these polls?
MARC THIESSEN, FOX NEWS CONTRIBUTOR: Good to see you, Megyn. Well, number one lesson is debates matter. I mean, a good debate performance can take someone from the back of the pack to the front of the pack pretty much overnight. And especially even in the states like Iowa and New Hampshire where voters have unprecedented exposure to these candidates. And then the second lesson is, is that this race is still incredibly fluid. I mean, if you think back Megyn, at this time in the 2012 election in August 2011, Rick Perry was at 18 percent in New Hampshire which is exactly where Donald Trump is today. And he was at 29 percent in Iowa which is about 12 points, ahead of where Donald Trump is. And he didn't end up being the republican nominee.
KELLY: He is in rough debate.
THIESSEN: His debate performances. So, a debate can take a frontrunner and turn him into an also run -- and you could take him into an also run, and take him into a frontrunner which is what we are seeing with some of these candidates who are being dismissed as also runs who are now certainly to move up in the pack.
KELLY: Who benefitted the most?
THIESSEN: Well, in different states it was different people. I mean, in Iowa it was clearly Ben Carson benefitted. He was seen in the Suffolk poll. His closing statement about brain surgery was the most memorable moment and his moved up into fourth place. Marco Rubio definitely benefitted. He's up in third. And Carly Fiorina has moved into fifth place in both New Hampshire and Iowa which is great --
KELLY: All right. And who did?
THIESSEN: 5:00 p.m. debate --
KELLY: Carly Fiorina, she's seen a huge jump.
THIESSEN: Yes. She has seen an absolutely huge jump. And then in New Hampshire Kasich has benefitted and Ted Cruz has benefitted. They've both moved up in the pack. And Bush and Walker, they lost a little bit of ground but they're still where they need to be --
KELLY: Bush went from third place to seventh.
THIESSEN: Yes. Well, in Iowa but still second in New Hampshire. Walker is still second in Iowa. They've lost a little bit of ground. But they both and Walker dropped dramatically in New Hampshire. So, they both lost some ground in the states. But in the states where they really need to win, Walker needs to win Iowa. Bush needs to win New Hampshire. They are still in second place in striking distance.
KELLY: How about Donald Trump?
THIESSEN: Yes. Donald Trump was really hurt by these debates. I mean, he said, the last pre-debate poll in Iowa had him at 31 percent. He's not at 16.6. That's almost cut in half. And in New Hampshire he was at 32 percent and he's now at 18 percent. So, he has lost some ground. But the worst numbers for him in these polls are the unfavorables. He is the third most highest unfavorable in Iowa at 37 percent. In New Hampshire, he has got the highest unfavorables of all with 46 percent. That means there is a ceiling there for him and that's an opportunity for some of these other candidates to catch up to him.
KELLY: Who are the others of the big unfavorables?
THIESSEN: Christie and Paul in both states have the highest unfavorables behind Donald Trump. And Trump in New Hampshire, Trump is the highest of all of them.
KELLY: So, any news about, I mean, Rand Paul seems to have dwindled in these polls at least on first blush. Is somebody taking from him? I mean, is somebody giving his support to somebody else? Are voters moving from one to another?
THIESSEN: He is clearly, it's hard to tell who moved from who to who but clearly Carly Fiorina has moved ahead of several of the candidates. She's moved up of all, ahead of Christie, ahead of someone of these other candidates. And she really -- she gained the most out of all of this. Remember, she was on the under card in that debate and she was seen by everybody as now being in the main event next time. And, you know, it is funny because in that debate, in that 5:00 p.m. debate, she took a shot at Donald Trump but he wasn't on the stage to respond. The next time around he's going to be on the stage to respond. So, she's going to get a shot at the frontrunners next time and that could only help her more.
KELLY: Marc, great to see you.
THIESSEN: Great to see you, Megyn, thanks.
KELLY: Well, we know the real story behind a tense moment on our show just last night.
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UNIDENTIFIED MALE: What are you guys arguing about? What is going on here?
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KELLY: Up next the ugly moment a Vietnam vet confronted Ferguson protesters for stomping all over the American flag. And then we will speak with Sheriff David Clarke and Richard Fowler about how trouble in America's biggest cities could impact the 2016 race.
Plus, a group of veterans opposed to President Obama's Iran nuclear deal put a human face on the issue.
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STAFF SERGEANT ROBERT BARLOW (ph), RETIRED: I'm retired Staff Sergeant Barlow and I was blown up by an Iranian bomb. It cut me in half from the left corner of my temple down to my jaw and took my -- legs off. Total devastation. That day is imprinted in my brain forever.
(END VIDEO CLIP)
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KELLY: Breaking tonight, we are now learning the real story behind the tense moment you saw on this program just last night. And On the Record Correspondent Griff Jenkins waded into a group of clearly angry protesters in Ferguson, Missouri. Watch here.
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GRIFF JENKINS: Right now there seems to be a little bit of -- I have just taken us inside. It seems to be a little bit of an argument going on, Megyn, amongst the protesters. There is no police in there. What will set things off tonight is not what you are actually seeing now which is two arguments between protesters. We are not sure what this quarrel is about but it is clearly heating up. What are you guys arguing about? What is going on here?
UNIDENTIFIED MALE: He needs to come out that circle.
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JENKINS: So there's some argument going on with one individual that walked into this. They are saying he is not part of the protest group.
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KELLY: Today we learned that the man being abraded by the protesters was a U.S. veteran, angry over their desecration of the American flag. Someone caught the whole thing up close on a cell phone.
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UNIDENTIFIED MALE: What does my flag have to do with you?
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KELLY: Wow. This is the same protest movement that earlier scrawled Officer Darren Wilson's name on the side of a roasted pig. Officer Wilson was the officer who shot and killed Michael Brown in Ferguson, Missouri, as the 18-year-old charged Officer Wilson after trying to grab his gun. Officer Wilson was completely exonerated of all wrong doing by the Department of Justice and yet still that's apparently how they see him in Ferguson. So with tensions reaching new heights now in a number of American cities including Ferguson how does this play out in the 2016 presidential contest? Joining me now nationally syndicated Radio Host Richard Fowler and Sheriff David Clarke of the Milwaukee County Sheriff's Office. Thank you both for being here. Sheriff, I just have to ask you about that roasted pig with Officer Wilson's name on the side of it, your reaction to that.
SHERIFF DAVID CLARKE, MILWAUKEE COUNTY SHERIFF'S OFFICE: It's the kind of ugliness that we have seen ever since the days of the Ferguson riots, and it's happened all across the country, the unfair characterization of the American police officer who puts his or her life on the line so that idiots like that can stand out there and act like fools.
KELLY: Richard, this is just wrong. This is wrong.
RICHARD FOWLER, NATIONALLY SYNDICATED RADIO HOST: Don't get me wrong, Megyn. I think that the depiction of a pig and Darren Wilson is wrong but I think it speaks to the mistrust between communities of color and police department.
KELLY: And the misinformation?
FOWLER: No, but I think there is a break down in trust how we got here to begin with, right.
KELLY: Misinformation factor into that? Hands up don't shoot was a lie and they are still repeating it right now in Ferguson.
FOWLER: I think that's only if you look at the situation in a vacuum. You look at the Ferguson situation in a vacuum and you can't. When you look at Ferguson you have to look at Rodney King in 1992. You have to look at Eric Garner in New York City. You have to look at Walter Scott in West Charleston and all these different cases which you saw is a break down in trust between the community and the police department. The only way to get back to creating trust is really trying to create transformative change to police departments. We need to work with communities and beyond that we need to find a way where community and police can work together to break down the problem and solve crime.
KELLY: Sheriff Clarke, I know you believe there is in fact a war on police going on in this country and that it is actually doing real damage to the safety numbers in major American cities.
CLARKE: The irony Megyn is that it is affecting good law abiding black people that live in these cities. Baltimore is up to 200 homicides. We're in August they had 211 in all of 2014, same thing in Milwaukee where we nearly doubled the amount that we had last year. Look, all of this is obscuring the real problem in these American cities, American ghetto if you will. And that is the overwhelming majority of these victims of violence in these cities are black and the perpetrators are black, as well. This other stuff, our other guest here put out three names. There are literally thousands, thousands of black males and other blacks in these American ghettos that are slain every year. We hear nothing from this crowd, this phony black lives matter. Well, it is true. It is true. And we hear nothing about that because that's the ugliness, that's the 800 pound gorilla in the room that nobody wants to talk about.
(CROSSTALK)
FOWLER: I can tell you the 800 pound gorilla in the room is mass incarceration, for all those -- out there watching your show tonight, Megyn, the tensions over $80 billion on mass incarcerations.
(CROSSTALK)
KELLY: You hit right on it because this is becoming campaign issue. We looked at this come when we were studying up for the debate. And even some of the GOP candidates in an attempt to reach out to the African- American communities in particular are pushing to decrease the number of crimes that are chargeless crimes and do something about that issue. Go ahead, Richard.
FOWLER: I think you are exactly right. President Obama in his a couple weeks ago pointed out a very -- a point that every American should know. We represent 5 percent of the world's population, but our prison population represents 25 percent of the world's prison population. Mass incarceration in this country is a huge problem and it's not a Democratic problem. It's not a Republican problem. It's an American problem that's costing our country way too much. And we've got to work on correcting it. And I think every candidate whether they're Democrats or Republican has to come with a comprehensive plan on how we reform.
KELLY: Even Governor Christie who is a former top law enforcement official of New Jersey is behind doing something about that particular issue. We will hear more about it as the campaign goes on. Gentlemen, thank you both.
CLARKE: Thank you, Megyn.
FOWLER: Thank you, Megyn.
KELLY: Well, defense attorneys representing the six Baltimore police officers charged in the death of Freddie Gray say prosecutors have kept detectives in the case from investigating claims that Freddie Gray previously tried to injure himself while in police custody so he could sue. Mark Eiglarsh and Andell Brown are here next with what this means for the case. It is a stunning claim in this case. And then one of the most powerful challenges yet to the President's nuke deal with Iran, it comes from an American veteran. And he will join us live.
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UNIDENTIFIED MALE: Every politician who is involved in this will be held accountable. They will have blood on their hands.
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KELLY: Developing tonight, stunning new claims from the defense attorneys representing the six police officers charged in the death of Baltimore's Freddie Gray. The defense claims in a new motion that detectives learned that Mr. Gray had a history of injuring himself in order to collect settlements. And that prosecutors -- again these are allegations told investigators to stop looking into that. Trace Gallagher has the details, Trace.
TRACE GALLAGHER, LOS ANGELES: Megyn, the primary allegation is the lead prosecutor in this case advised detectives investigating the death of Freddie Gray not to pursue key evidence that could be helpful to the police officer's charged in Freddie Gray's death. Court documents obtained by the Kelly File show that defense attorneys for the six police officers claim that Assistant States Attorney, Janice Bledsoe told detectives not to do defense attorneys jobs for them by looking into claims that Freddie Gray had a history of crash for cash schemes. You know intentionally injuring himself to collect settlement money, including once in police custody. In the motion of the defense argued that Bledsoe's statement "Would seemed to indicate some level of knowledge that exculpatory evidence exists which could benefit the officers charged in Mr. Gray's death, and that the prosecutor did not want this information uncovered by investigators." Now certainly no one knows how Freddie Gray was injured in the back of that police van. Was it a so-called rough ride where police deliberately tried to injure him or did Gray try to injure himself. Remember Donte Allen, the man who shared the van with Freddie Gray who told investigators Gray was banging his head against the metal like he was trying to knock himself then later denied saying that. Well now the same court documents claimed that instead of giving the medical examiner a copy the Donte Allen's statement, the state's attorney summarized what he said and offered an opinion about why he said it, so the medical examiner gave no credence to Donte Allen's head banging statement at all prior to ruling that Freddie Gray's death was a homicide. Prosecutors meantime say the defense is simply taking this information to try to sway the jury pool, Megyn.
KELLY: Wow. Trace, thank you.
Joining me now Mark Eiglarsh who is a Criminal Defense Attorney, and Former Prosecutor, and Andell Brown who is a Civil Rights Attorney. Well, if they're trying to sway the jury pool with this motion, Mark they may have succeeded because these are really stunning claims.
MARK EIGLARSH, CRIMINAL DEFENSE ATTORNEY: Megyn, if this is true I am so damn outraged. First they go judge-shopping to get a search warrant granted and now this. Let me remind the folks at home what the prosecutor's obligation is in a case. It is not just to gather evidence that helps prosecute a defendant, but it's to search for the truth, which means pursuing evidence that doesn't necessarily help your case, and once you get that evidence you must disclose it to the defense even if it guts your case. If they did that in this case, Megyn as alleged it is outrageous.
KELLY: Andell, as the investigators came to the assistant state's attorney and said we are hearing information that this guy who died, Freddie Gray, had a history of trying to injure himself while in police custody, it would be highly relevant to this case, would it not?
ANDELL BROWN, CIVIL RIGHTS ATTORNEY: Megyn, I have to tip my hat to these defense attorneys. This is trying your case in the media 101. They have made some startling claims without providing a shred of evidence and the media's bought it hook, line, and sinker. Show me one crash report, show me accident report from all of these crash for cash schemes. Show me one court case.
(CROSSTALK)
EIGLARSH: You know why you don't see it?
BROWN: We don't have it.
EIGLARSH: You know why, Andell?
KELLY: Why, Mark, why?
EIGLARSH: Because this prosecutor assuming the allegations are true doesn't want to pursue getting that evidence and providing it.
(CROSSTALK)
KELLY: Mark, what they say in the motion is that -- our information is that the defense believes the state's attorneys office does have evidence of it, that they do have evidence of it, but they haven't turned it over. And that goes against the very fundamental ethical obligation of a prosecutor, Mark, which you used to be.
EIGLARSH: It does. And I will tell you this. Obviously it disturbs me as it relates to the six officers who are charged. But is this something pervasive and systemic in that office where somehow prosecutors don't feel it is their obligation to provide information that may be relevant and helpful to the defense? That concerns me more than anything.
KELLY: On the other hand, Andell you raised a point, they have no direct evidence that Freddie Gray ever received a payment. The defense appears to be saying we have gotten a tip that the D.A. has it, the state's attorney has it and she hasn't given it to us.
BROWN: A statement with nothing else. They don't have access to the public records. They can't go to the courthouse and look up the case. They can't pull an accident report. Those are the most simple fundamental things you do when you are making that sort of claim.
EIGLARSH: They can but the prosecutors have an obligation.
(CROSSTALK)
BROWN: You have to be diligent, you have got to do your due diligence.
(CROSSTALK)
KELLY: Andell, come on, let Mark speak and then I will give you the floor. Go ahead, Mark.
EIGLARSH: You know you would be going to court saying yes, I could get some of these things, but the prosecutor is in possession of that information and has the ability more than anyone to obtain this information and chose not to. You would be going nuts in court, Andell, if that happened.
KELLY: I'm giving you the floor, Andell but I want to ask you this before we go, because Trace mentioned this other allegation that the DA -- the states attorney allegedly spoke with the medical examiner before she came to the conclusion that this is a homicide and gave her these statements, but only summarized the key statement for the defense, which is by that guy Donte Allen who was the only other person in the police van with Freddie Gray who we have been told said to the homicide detectives right after he was taken out of the van, that guy was jumping around like crazy, he's trying to hurt himself. But instead of giving the statement to the medical examiner that the state's attorney allegedly just summarized it and low and behold, she came up with a homicide declaration, your thoughts, Andell?
BROWN: Mark has been a defense attorney in Miami Dade for a long time. And when you get a statement where the police says somebody else said and it fits their version of events, it is uncorroborated by anybody else. What do we do with that? We say it is unreliable, it's inadmissible as hear say, and when he had the opportunity to speak for himself he totally denied that. So you are telling me that a statement made by someone about what someone else said is the best evidence, your case doesn't hold water.
KELLY: All right, good debate guys. Thanks to the both of you for being here.
My one complaint about this segment is look how tiny Mark looks. I think we need to zoom more on Mark.
EIGLARSH: Bring it in.
KELLY: I was doing this to make it more even.
EIGLARSH: Andell did that. He organized that.
BROWN: That is more like voodoo. I love you guys. Thank you very much. That was the best I can do.
KELLY: Good bye.
Coming up, growing concern tonight over President Obama's nuclear deal with Iran, as Iranian hard liners continue to chant death to America.
Up next, the new voice joining the protest against the President's deal.
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: A vote for this deal means more money for Iranian terrorism. What do you think they are going to do when they get more money?
(END VIDEO CLIP)
(COMMERCIAL BREAK)
KELLY: Tonight a new ad by a group of veterans opposed to President Obama's Iran nuclear deal. Watch it.
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: I'm medically retired Staff Sergeant Bartlett and I was blown up by an Iranian bomb. It cut me in half from the left corner of my temporal down to my jaw and took my gunner's legs off. Total devastation, that day was imprinted in my brain forever. That's who we're making a deal with. Every politician who is involved in this will be held accountable. They will have blood on their hands.
(END VIDEO CLIP)
KELLY: Retired Staff Sergeant Robert Bartlett is the man featured in that ad, and Pete Hegseth is the CEO of Concerned Veterans for America. Thank you both for being here. Robert, what made you do it? Why did you speak out?
SSG ROBERT BARTLETT (RET), VETERANS AGAINST THE DEAL: I made a promise a long time ago that I would serve this country and I would protect it no matter what. And that's all I'm doing. But I also made a promise to myself that my buddy died next to me because of that Iranian bomb, that I would love for him and that his words would be out there too.
KELLY: When you heard we had struck an agreement, what was your reaction?
BARTLETT: I couldn't believe it. I didn't want to believe it. The very country that killed so many Americans over in Iraq, I just couldn't believe it. They were choosing another country over somebody who had fought for their country, somebody who had died for their country, you know, choosing the very enemy that we swore to protect them from.
KELLY: But you know the justifications -- you know the justifications that this will prevent Iran or at least delay it from having a nuke.
BARTLETT: You know the deal is not going to stop them from having a nuke. They were trying to build a nuke long before we put any sanctions on them. We put sanctions on them to stop them from building nukes. That was the whole point. So to take them away and then give them back those billions of dollars that we took away, what is that going to do? It's just going to embolden their program. It took a few thousand dollars and it killed me and my friends, and what are they going to do with a few billion dollars, doesn't make any sense.
KELLY: They certainly attempted. Pete, a lot of veterans objected this deal.
PETE HEGSETH, IRAQ AND AFGHANISTAN WAR VETERAN: That's exactly right. What Sergeant Bartlett and this group have done is expose the real cost of this deal. You can talk about interests and balance of power and all the strategic aspects. When it comes down to it, Iran has been trying to kill and successfully killed over 500 Americans in Iraq since 9/11. Guys I served with, Guys like Bartlett served with, and this deal releases $100 billion back to that regime which we know will go to folks like General Suleiman, the head of the Quds Force who now is able the to travel freely because of the details of this agreement, and he will use that to go out and kill Americans just like Iran has done for 35 years, Megyn. This regime is premised on opposition to America and killing Americans. And to believe the intentions have changed is just foolish. That's why Chuck Schumer came out against the deal, Megyn. He knows the Iranian regime is not going to change and this money will fuel their passion for dominance in killing Americans.
KELLY: President Obama suggests that the hard liners are one thing in Iran, but that there is a group that we can work with, people who are more moderate.
HEGSETH: Well, sure, being suppressed and oppressed by the ruling regime in Iran right now who still has a tight grip on Iran, and there is no reason why ten years from now when this deal gives them effectively a path to a bomb, why any of that would have changed, why the intentions of the Quds Force and the hard liners will have changed. With the Beirut bombing to what happened to the streets of Hormuz, to what happened in Iraq, the nature of this regime has not changed, the revolutionary Islamic regime. Why would that change ten years from now? Your kids and my kids are going to have to deal with an Iranian -- nuclear armed Iran.
KELLY: They seem to take a life in killing and hurting American services members and Sergeant Bartlett has the wounds to prove it. Thank you both for your service.
HEGSETH: Thank you, Sergeant Bartlett. Thank you, Megyn.
(COMMERCIAL BREAK)
KELLY: Just looking at this update from Chairman Gowdy in the Congress saying Secretary Clinton's decision to turnover her server to the DOJ, he's calling this a serious national security issue, more on this tomorrow. Goodnight.
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