Giuliani: Case is clearer against Clinton Foundation; Comey adviser: His silence would've had ramifications

This is a rush transcript from "The Kelly File," November 2, 2016. This copy may not be in its final form and may be updated.

MEGYN KELLY, HOST: Breaking tonight just six days before America votes.  Another bombshell dropped on Hillary Clinton's campaign.  This one involving serious details of the FBI's investigation into the Clinton Foundation.  And talk of a possible indictment.  News that Mrs. Clinton supporters fear could alter the course of this election.  Or her presidency.  Should she win on November 8th?

Welcome to "The Kelly File," everyone. I'm Megyn Kelly.  While Hillary Clinton server scandal has dominated the headlines, Fox News now has confirmation tonight from two sources familiar with the FBI probe that a separate investigation, this one into the Clinton Foundation, not the e-mail scandal, but the Clinton Foundation, including allegations of pay to play, has now taken a quote very high priority at the FBI.

What's more of this investigation appears to be far more expansive than previously reported.  Sources also telling Fox News' own Bret Baier that these two investigations will continue no matter the outcome of the election next week.  And Bret reporting that these agents are likely to continue to try to push to get an indictment.  That's the language he is using.

In moments, we will be joined by former New York City mayor and Trump surrogate Rudy Giuliani as well as New York City council speaker and Hillary supporter Melissa Mark-Viverito.

But we begin tonight with our chief intelligence correspondent Catherine Herridge.  Reporting from Washington who has been saying for months now, that there is a separate FBI investigation into the Clinton Foundation which others were loathed to report and which was denied to you repeatedly, but you had it, and sure enough tonight, we are hearing some stunning details about it -- Catherine.

CATHERINE HERRIDGE, FOX NEWS CHIEF INTELLIGENCE CORRESPONDENT:  Well, thank you, Megyn.  There is new evidence tonight that the FBI's investigation of the Clinton Foundation is not dead.  With two sources close to the FBI telling Fox's Bret Baier late today, the new records from WikiLeaks and other emails are strengthening their case.  The sources who would not speak on the record said evidence of pay to play will lead to more witness interviews.

FBI agents are quietly working the Clinton Foundation case -- in Washington, D.C. and New York City.  In multiple sources say, the Justice Department has been tapping the brakes by blocking access to a grand jury.

As part of its ongoing investigation, Fox News was first to report in January that the FBI e-mail probe had expanded to look at whether the intersection of Clinton Foundation work and State Department business undersecretary Clinton may have violated public corruption laws.  While State Department e-mails and WikiLeaks now show evidence of coordination, in January, Hillary Clinton tried to dismiss the reporting as rumor.


UNIDENTIFIED MALE:  Is that story true?

HILLARY CLINTON, D-PRESIDENTIAL NOMINEE:  Absolutely not.  It is an un- sourced irresponsible, you know, claim that has no basis and it is something that really is without merit and should not have any influence whatsoever in this nominating process.


HERRIDGE:  Three sources tell Fox News tonight that computers belonging to Clinton's personal attorney, Cheryl Mills there on left, and aide Heather Samuelson were not destroyed as part of an immunity deal with the Justice Department but lawyers are key to the case because they decided which Clinton e-mails were government work deleting the rest.  Those computes were told are in evidence and still available to foundation investigators.

And while the review of Anthony Weiner's computer is not complete, Fox News is told that there does appear to be a lot of new stuff and a strong belief among agents that classified material is in play -- Megyn.

KELLY:  Wow!  Catherine, thank you.

HERRIDGE:  You're welcome.

KELLY:  Joining us now with more, former New York City Mayor Rudy Giuliani.  
He is a Trump surrogate and former federal prosecutor.  Mr. Mayor, good to see you.  This is --


KELLY:  I mean, this is a separate thing now.  I mean, we've been focused on the e-mail investigation which Director Comey just reopened.  You know, that happened last Friday, this is something different where you got two sources familiar with the FBI investigation into the Clinton investigation talking about pushing for an indictment in the absence of  obstruction, they say.

GIULIANI:  Well, this was the one that I always thought was clearer.  I mean, as a former associate Attorney General and U.S. attorney, I could make this case in about two months.  I mean, well, I'll give you one example.  A nice clear one.  UBS, right?  UBS gives the Clintons $660,000 for the foundation.  Thirty million dollar loan.  And $1.5 million speaking fee for Bill Clinton.  And Hillary Clinton travels from Washington, D.C. to Geneva to meet with the IRS to ask the IRS to go easy on UBS in the turnover of identities that the IRS wanted of American taxpayers who are evading taxes.

IRS ends up with only 4,000 of the 56,000 identities they were attempting to get.  To me, I can make a bribery case out of that.  She didn't go travel to Geneva without now -- if there's an e-mail that connects the two, then you just don't have a bribery case, have you a bribery case you can't even defend.

KELLY:  So can you -- I mean, you are a former federal prosecutors.  You've been around this block.  How does it work?  I mean, how is it that just now, we're -- so we're a couple days out from the election.  This would have been good to know a few weeks ago on the record.

GIULIANI:  Because my former assistant James Comey made the wrong decision in July.

KELLY:  But that was on a separate track.  I mean, what about this one?  
Why wasn't this disclosed?

GIULIANI:  You have outraged FBI agents that talk to me.  They are outraged at the injustice.  They are outraged at being turned down by the Justice Department to open a grand jury.  They are convinced that Loretta Lynch has corrupted the Justice Department.  You've got people in the Justice Department in charge of this investigation who are defense lawyers for Clinton people.

KELLY:  Uh-hm.

GIULIANI:  I mean, this is about as outrageous a corruption of the Justice Department has ever seen.

KELLY:  So you think, let me just ask you, Mr. Mayor.  So, you think this is, because we have been reporting on dissension inside the FBI, alleged --

GIULIANI:  Oh, it is real.

KELLY:  And you think this is the FBI agents or someone affiliated with them just getting this out there.  Because they're saying people need to know.  They need to know what Comey disclosed last week and need to know this too.

GIULIANI:  These are men and women who swear to uphold the law.  They're not a bunch of slimy Washington politicians.  Like the Obama administration and the people Clinton would bring in.  And the reality is, they are outraged what they have seen.  Mrs. Clinton has violated easily 20 or 30 federal laws.  I could outline them for you.  I could show you how I could prosecute them and convict them.  Everyone around her has taken the Fifth Amendment.  Taken immunity.  Who is going to bring --

KELLY:  Those immunity deals may not be worth the paper they printed on now according to this report.  Because if they lied to get them then they don't stand.  But let me ask you, let me ask you, what sense does it make if you got Director Comey, who is willing to take the risk he took last Friday to come out there and say, I'm reopening the email thing.  I found some stuff.  It's not good.  I am going to look into it.  I'm going to get a warrant.  But I just want you to know I found it, we are going to do an investigation.  How would that same guy not disclose something this big happening on another track?

GIULIANI:  I can't speak for Jim.  I knew Jim when he was a young assistant U.S. attorney of mine.  I don't know what happened to him.  I know that way back in July when I read that memo, that's a prosecutorial memo, it is just the opposite of what he said it.  Every reasonable prosecutor would have prosecuted that case in a second.  I won convictions on half the evidence that the FBI had gotten in July.  And he has an FBI, Jim has an FBI that's in revolt right now.

And I think that's one of the reasons why he came out and did what he did to try to control his agents, who after all, are true law enforcement people.  And what they see is about the slimiest stuff that we've seen in Washington since probably tea pot dome.  This is worse than Watergate.  
They have corrupted the State Department.  Pay for play.  And they have corrupted the Justice Department.  You can't go much further than that -- Megyn.

KELLY:  Uh-hm.  Mr. Mayor, good to see you.

GIULIANI:  Thank you.

KELLY:  Joining me now with more, New York City council speaker and Hillary Clinton supporter, Melissa Mark-Viverito.  Good to see you tonight.  So, can we just start with that because there are conflicting reports about whether the FBI is in fact divided and there's low morale as some claim and whether that case that Comey declined to prosecute in July was in fact prosecutable.  Look, I think that it is fascinating that we are seeing all of this emerge six days out, two weeks out of an important election.

MELISSA MARK-VIVERITO, NEW YORK CITY COUNCIL SPEAKER:  And we have a candidate in Donald Trump who is on the precipice, on the obese, of really outstanding failure.  And so, I believe that when you have a Hillary Clinton, when you have a Clinton Foundation, that has been in the public eye for many, many years and not decades, that has disclosed every private donation, that has 40 years of tax records made available for, you know, for transparency for everyone to see, versus a candidate who hides, right, behind not releasing his tax forms or who is charitable quote-unquote, "foundation," is a scam.

KELLY:  Well, they may also be investigated.  But let me speak to you about that.

MARK-VIVERITO:  Interesting to see this is coming out now.  We have a candidate --

KELLY:  Well, we know why Friday's news came out when it did.  I mean, Director Comey's office spoken to that.  They say they just got Anthony Weiner's computer.  I mean, it all roots point back to Weiner.

MARK-VIVERITO:  Before having a search warrant, before, there are any being any sort of verification, whether or not --

KELLY:  Yes.  But let's not condemn Director Comey's motives because --

MARK-VIVERITO:  Megyn, on --

KELLY:  All of the Democrats defended him as second coming back in July when he declined to prosecute.  Now they don't like him.  But this is about the other piece of the investigation which is in a Clinton Foundation.  And if these two sources familiar with the FBI investigation who have now spoken with FOX News are right, this is a quote, "Very high priority within the FBI."

There is a quote avalanche of new information coming in everyday on this investigation.  That these two women may have lost their immunity now that their devices are exploited at this moment and that this investigation is much, much more extensive than previously reported.

MARK-VIVERITO:  They are accusations and I don't believe they have foundation or merit.  And it is again interesting that six days out of this most important election cycle that this is coming out.  This conversation about the Clinton Foundation, has been in public eye for years at this point in this campaign.  So I cast a lot of doubt on this.  Again, we have the most capable candidate in Hillary Clinton who has 40 years of tax records on-line.  Where every donation to the Clinton Foundation, Independent watchdog groups have talked about the good work.

KELLY:  Yes.  We've learned some things through Wikileaks just in recent weeks --

MARK-VIVERITO:  We will never verify the information on WikiLeaks --

KELLY:  I know, Russia, Russia, they're fake.  I know.  But nothing is specifically disputed.  None.  Not one.

MARK-VIVERITO:  We have also indicated -- just someone -- we have an investigation into Trump and some of his -- high ranking members of his campaign and their links to possible Russia and any sort of communication.  That was not disclosed.  So it is incredibly interesting --

KELLY:  And that is Paul Manafort who is no longer with them.

MARK-VIVERITO:  It is incredibly interesting that all of the information that is being leaked on the side of the FBI happens to be about Clinton and nothing about Trump.  That will cast a little bit of doubt and concern --

KELLY:  But that doesn't mean the investigation is not under way.  Perhaps the leaking is inappropriate but that doesn't mean the investigation is not under way.


You understand as well as I do that the American people, they don't want to elect somebody who might get indicted and she's got now two tracks against her.  The e-mail investigation and the Clinton Foundation.

MARK-VIVERITO:  And Trump is being investigated on multiple tracks as well.  His Trump school.  His foundation.  So there may be an indictment on his end as well.  So, this is not -- but again, I believe that the information that has been leaked on Clinton is going to be found to be unfounded.  She is the most highly qualified and the most transparent candidate that we have.

KELLY:  Transparent?


KELLY:  All right.  I have to leave it at that.  I don't have time to take that one on.  But it's great to see you.

MARK-VIVERITO:  Thank you.

KELLY:  Thank you for being here.

Well, President Obama joined a growing list of top Democrats attacking FBI Director Jim Comey and in moments we will speak with one of Director Comey's top advisors.  This is a longtime friend of his.  About what we should expect from the director next.  What is Director Comey thinking?  This man knows and he will tell us.

Plus, we have new reports that top official at Justice was sharing -- a top I should say, was sharing insider information with the Clinton campaign during the e-mail investigation.  From his private e-mail account.  Former DOJ Attorney J. Christian Adams is here on that.

And then two dramatic state polls dropping in just the last few hours.  We will show you why team Trump is thrilled about what they say.  Wait until you hear what's happening when we come right back.


DONALD TRUMP, R-PRESIDENTIAL NOMINEE:  Next Tuesday, we will have one last glorious surprise for the pundits, the politicians and the special interests when we win and return the power back to the people.  That's going to happen.  Going to happen.



KELLY:  Breaking tonight, the parade of Democrats now slamming FBI Director James Comey is growing yet again and they are not holding back.  Senate Minority Leader Harry Reid, the same man who called Director Comey a, quote, "fair impartial director" back in July actually wrote the director a letter this week suggesting, quote, "Through your partisan actions you may have broken the law."

New York Senator Chuck Schumer who once called Director Comey a quote, "Towering figure at Justice" is now telling Bloomberg, quote, "I do not have confidence in him any longer and suggesting the Director's decision last Friday was quote, appalling."  And top of that, earlier this afternoon, both the former House Speaker and arguably President Obama himself joined the chorus of critics now going after Director Comey.


SEN. NANCY PELOSI, D-CALIF.:  Maybe he is not in the right job.  I think we have to just get through this election and just see what the casualties are along the way.

PRESIDENT BARACK OBAMA:  We don't operate on innuendo.  We don't operate on incomplete information.  We don't operate on leaks.


KELLY:  Joining me now Columbia Law Professor Daniel Richman.  He is also a policy advisor to FBI Director James Comey.  Great to see you, Professor.  
Thank you for being here.

DANIEL RICHMAN, COLUMBIA LAW PROFESSOR:  Thank you.  It's good to be here.

KELLY:  So, you know Comey, you have known him for a long time.  You used to practice law together.


KELLY:  Okay.  And you say he is a straight-shooter and you are a friend of his and adviser of sorts.  What do you make of the piling on now?  Nancy Pelosi in particular, like maybe he can't do the job.  You know, maybe it is time for a change.

RICHMAN:  What people seem to forget is that whatever he did would have had political ramifications.  If you stay silent and don't correct what people seem to think is that an investigation is complete, and you let that thought go to people as they say vote or maybe let's say, as they move into running the government next year, or you speak.  And you speak as good as possible.  I don't think he is unaware of the fact that there's an election going on.  I don't think he is trying to influence the election.  But either silence or speaking is going to implicate the election and he is aware of that and did what he felt he had to do.

KELLY:  Is this hard on him?  Do you think -- I mean, he is a human being.  He seems like a real sort of Joe Friday, kind of, you know, law enforcement official.  But is this hard on him to have this much pile on including today from the president?  We don't deal in innuendo.  We don't deal in leaks.

RICHMAN:  I think that he is used to things being piled on.  That comes with the territory.  I also -- I don't read what the President said as part of the piling on frankly.  I think that what the President said is people thought the investigation was complete.  It turns out the President was wrong on that.  There is an investigation that was said to have been complete but is going on and that is all about the director said a few days guy.

KELLY:  A lot of people believe this is not Comey.  That he is not in charge.  That Loretta Lynch is controlling him like a puppet and she is the puppeteer and so, she is not going to pursue anything on Hillary -- high waters.  And Comey basically has to do what she says.  Is that true?

RICHMAN:  I've actually never heard that particular allegation.

KELLY:  Trust me.

RICHMAN:  It is an odd story to be spinning to think that he is the puppet of somebody who in all likelihood will probably not be there shortly.

KELLY:  And he will be presumably.

RICHMAN:  He will be.  It is a ten-year term for a reason.  You know, part of what we want from the FBI director, is come what may and come what break back, so thrown his way, put your head down and make nonpartisan decisions even as you recognize people can spin them one way or another.  That's what he did and I think he's right.

KELLY:  Well, what about, I mean, people think it was inadequate in part because new stuff turned up on Huma's home computer.  Everybody said -- how
could that not have been picked up in the first swoop by the FBI.

RICHMAN:  I only know from what I read in the press report but I gather from them that she didn't even know that this was being swooped out.  As we back up computers we don't really focus on, at least from what I gather in the reports, she was backing in up.

KELLY:  Last question, if the evidence justifies an indictment, if he finds evidence of intent which he wasn't  satisfied with there back in July, do you believe this man would be prepared to recommend charges be brought against Hillary Clinton?

RICHMAN:  Of course.  If the facts change, the position changes.  I don't think it takes very much work on the part of someone like Jim to do that.

KELLY:  Great to see you, Professor.  Thanks for being here.

RICHMAN:  Pleasure.

KELLY:  And just hours ago, the Justice Department defending itself over another growing controversy.  The latest WikiLeaks dump reveals that top DOJ officials reached out to the Clinton campaign during the e-mail investigation in an effort to help her.  One guy in particular.

Chief National Correspondent Ed Henry has the details.  Ed?

ED HENRY, FOX NEWS CHIEF NATIONAL CORRESPONDENT:  Megyn, this new email is raising conflict of interest questions tonight because it shows Peter Kadzik gave Hillary Clinton's campaign chairman at least a little heads-up about some of the details of Clinton's e-mail probe.  Kadzik is a college buddy of John Podesta and represented him during the Monica Lewinsky drama.  Now Kadzik is a top official at the Justice Department, he runs Congressional affairs and wrote in 2015 that the Clinton camp should be on the lookout for, quote, "An oversight hearing today where the head of our civil division not justice will testify."  Likely to get questions on State Department e-mail.

Another filing in the FOIA case went in last night or will go in this a.m.  That in a case, it will be a wild 2016 before the State Department posts the e-mails.  Podesta shared this with other campaign officials along with a note.  Additional chances for mischief presumably by Republicans.  The Justice Department is downplaying all of this since Kadzik's e-mail focused on a public hearing on The Hill and a public filing.  And to be fair to Podesta, there have been some Republicans suggesting Kadzik really is not running the show in terms of the Abedin probe.  Though that did not stop Donald Trump today from declaring it proves his point about draining the swamp.


TRUMP:  One of the top Department of Justice officials involved in the e- mail investigation, assistant Attorney General Peter Kadzik is a close associate of John Podesta.  These are the people that want to run our country, folks.


HENRY:  However, Kadzik is only involved in the Huma Abedin probe because he was updating lawmakers as the head of Congressional affairs.  He is by no means calling the shots on the actual investigation.  Although if his contact with Podesta was so harmless in 2015, why didn't he put it on his Justice Department e-mail which would have become a public record?  He instead communicated by Gmail and now WikiLeaks made it public anyway -- Megyn.

KELLY:  Ed, thank you.

Joining me now, J. Christian Adams, a former DOJ attorney who received the department's award for outstanding service.  Great to see you, Chris.

So, this is -- so he took a little trip outside of his lane because he has nothing to do with the division that was investigating her about really wanting them to know what was happening in the investigation.  Do I have it right?

J. CHRISTIAN ADAMS, FORMER DOJ ATTORNEY:  Yes.  He is basically the Congressional message boy.  And instead, what he was doing is tipping off the campaign that a pleading was about to be filed.  A pleading, Megyn.

That's confidential information.  When a Justice Department lawyer tells a third party that we're about to file a pleading, they are breaking the rules.  That's unethical.  If I did that when I was back in the voting section, you know, alert the Trump campaign we're about to do something, I would have lost my job.

KELLY:  But they say the hearing is public information.  The briefing dates are public information.  So, how bad was this?

ADAMS:  Well, the briefing dates weren't public.  What they fail to realize is that in the e-mail, he doesn't even think the pleading was necessarily filed yet.  That's important.  He said this may be filed in the morning.

So, he was tipping off Podesta that an important document was going to be filed that basically gave the Hillary campaign the script, the script on what state was going to do with all of these e-mails.

KELLY:  So it was, I mean, the advantage to Hillary and knowing 12 hours before, I mean, was there one?

ADAMS:  Oh, of course.  Twelve hours is an eternity in the Clinton response machine.  If you look at the subsequent e-mails, Megyn, they are going back and forth on how to spin this.  They're immediately going to work.  Whereas the Republicans up on the hill didn't even know what was coming.  So, it gives an advantage when you have 12 hours of something that is explosive.

KELLY:  What is amazing is, and you can always tell how people feel when you see their response.  So, justice was of course asked about this.  Like hey, why is this dude giving a heads-up, this Kadzik, why is he giving a heads-up about anything to the Clinton campaign?  He doesn't work -- he works for us.  He doesn't work for Hillary Clinton.  Or for her campaign.

So what's he doing?  And justice said, well, he sent that e-mail in his personal capacity --

ADAMS:  Yes.

KELLY:  Not in work hours.  That's a quote.  That's DOJ on the record today, Chris.  And then went to say, it is not department practice to provide any strategic guidance to any campaign.  And then when asked whether his behavior was acceptable to justice, they did not answer.

ADAMS:  They made a mistake.  They should have said he is the assistant Attorney General, he has the ability to wave privileges, to wave confidences.  Instead, they made it worse for themselves by saying, it was on his private Gmail.  That violates federal records laws.  Those are Justice Department e-mails on Gmail account so they double down and they made it worse with that excuse.

KELLY:  You know what the thing about this is, not only do we see these and have questions now about what was going on between these individuals but how many times is this happening out there that were captured by WikiLeaks.  
You know, these people e-mailed somebody other than Podesta who was the one that got hacked, and so we don't know about it.

ADAMS:  Well, we do know actually about a second instance in the WikiLeaks dump today of another Clinton campaign worker getting this tip off and it was from the day before that there was going to be an important pleading filed in the e-mail case in front of the federal court.  So it is coming from two different directions which doesn't surprise me because these guys are like Democrat operatives on the taxpayer dime.

KELLY:  They work for the woman who would ultimately decide whether to bring charges.  That is who those two were technically employed by.  And their boss has to decide whether or not to bring charges and they're tipping off the Clinton campaign as key dates and strategic maneuvers in the case that did become public but as you point out do not appear to have been public at time they were disclosed.

J. Christian Adams, always a pleasure.

ADAMS:  Thanks, Megyn.

KELLY:  Well, breaking news tonight on two big poll swings in two critical states.  Have you taken a look at the latest polls in Virginia and Colorado?  Yes, Virginia.  Stirewalt and Perino will tell us what this means with just six days to go, next.

Plus, new warnings tonight about possible trouble at polling places come Election Day.  We will show what you they are worried about.  Don't go away.


TRUMP:  We have to vote.  We have to get out there.  We don't want to blow it, that I can tell you.  Because we have worked very hard, all of us.  You, me, everybody.  And it is very historic what's happening.



KELLY: Breaking tonight with six days to go. We just got some big polling news from two of Hillary Clinton's so-called firewall states. We'll have that for you in a moment. But first we go to the campaign trail where Mrs. Clinton is making a big push in Arizona. The polling average in the Grand Canyon state shows Trump up by three points there.

Mr. Trump is campaigning in Florida meantime where he held a rally earlier in Pensacola. The Florida polls show Trump with a lead of less than one point, pointing to a barn-burner of race next Tuesday. Chief political correspondent Carl Cameron is reporting tonight from Orlando. Carl?

CARL CAMERON, FOX NEWS CHIEF POLITICAL CORRESPONDENT: Hi, Megyn. When you look at all those polls, it shows that Trump definitely has some momentum and that Hillary Clinton has either stalled or maybe even losing ground.
But it's really important also to look at the trend lines as well as the averages which suggest that while Clinton is still is in pretty good shape and Donald Trump still has a little bit more surging and a little bit more momentum necessary.

There is also a question that comes up about whether or not he has spent enough money and his organization is prepared for this. For the last ten months there's been a steady worry among the Republicans that his organization wasn't being built out the way it is necessary to compete in the general election. Because of the surge that he's had, he might be able to make up what frankly was a demonstrable deficit in terms of the number of paid staffers, the number of volunteers, the number of headquarters, number of ads run and the number of dollars spent.

Trump said today that he's going to spend $25 million in the next six days on 13 specific battle ground states which include places like Michigan and Pennsylvania where he's been losing in the polls. In Virginia where he's been quite -- he's been behind in some cases close to double digits. Those are now back on Trump's table and the polls have narrowed in those states significantly.

But ground game really matters. It isn't sexy. Trump has been definitely cashing in on the WikiLeaks. Today he was going after the quote "collusion between the State Department, the Justice Department and the Clinton campaign." But he also knows that he has to be a little bit more human, and tonight, he suggested as he walked out on stage he said, you know, "calm down Donald." Said it allowed. "Be cool, Donald," which is something that we have never seen from Donald Trump who always sort of prides himself on being almost bulletproof and constantly sort of emitting this strength.

He is tired. It's the sprint. And they are excited on the Trump campaign because things seem to be going their way. It's still going to be very close. Megyn?

KELLY: Wow. Carl, thank you. Well our friends over at have a very clear way of looking at this race. What do you get when you force a toss-up state toward the candidate winning in the polls? Today, state by state polling shows Mrs. Clinton winning the White House by a slim eight electoral votes. What's turning heads tonight though is the fact that numbers two weeks ago suggest she would have won by 128. So, she would have had a lot more to spare.

Joining me now, co-host of "I'll Tell You What: Perino & Stirewalt" right here on Fox News on Sunday's at 5:00. That's Chris Stirewalt and Dana Perino. Dana is the author of "Let Me Tell You About Jasper... How My Best Friend Became America's Dog." Okay. This is amazing, right? Virginia appears back in play. Virginia where she was ahead 12 points in early October, he now -- he now leads, right?

I'm just looking at my information just coming in. Here it is right there. I just read what's on the board. Look. He now leads. He's got 3 points over her in Virginia. Stirewalt let me start with you. The report (inaudible) tonight is saying they're stunned at Trump Tower at their own internal polls showing Virginia's back in play. Trump and Mike Pence making plans to get down there. Do you believe it?

CHRIS STIREWALT, FOX NEWS DIGITAL POLITICS EDITOR: Well, the answer (ph) in good stuff about if you have your internal polls you're doing it wrong.

KELLY: That's not internal. He's saying their internal confirmed this Hampton University poll.

STIREWALT: I would say this, the Colorado poll is very interesting to me because I don't think Colorado has been polled nearly enough in this cycle. Virginia has been carpet bombed with polling in this cycle. This is one poll out of -- this is 1 out of 5 that have been taken over basically commensurate period of time. This is the only one that shows Trump in the lead and the rest of them showed Clinton leads five to 10 points ahead of this.

Is this an indicator of something that's happening for Trump? Are they catching something that other people aren't? I don't know, because as you get down to the bottom of the barrel here and as you get down to the end, you are looking for any sort of ping-pong ball that goes pinging and ponging in around these polls.

KELLY: We are within hours of the election and I mean potentially, Dana, seeing a -- I don't like to do math -- 12 plus 3 is 15, a 15-point swing in a state as critical as Virginia with 13 electoral votes. If that's real, that's huge.

DANA PERINO, FOX NEWS THE FIVE CO-HOST: Absolutely. And there's reason for the Trump people to be excited. I think that obviously the news as you've been reporting today like, I worked at Justice Department for a year then I worked at the White House for about six. I've never seen anything like that in terms to the deluge of terrible news for somebody and in this case, the presidential candidate for the Democratic Party. I think that's huge.

So, the news cycle is certainly favoring Donald Trump. The question I think is what Carl Cameron asked, which is, can they get enough of a ground game there to make sure that their voters who are so enthusiastic get to the polls in a larger number than hers. That's where the math comes in certainly. I remember months and months ago, Donald Trump said that the organization is overrated. And I asked him...

KELLY: Look at my rallies.

PERINO: Yeah. And I asked David Plouffe about that. I said, does he have a point there? He said, well, maybe, but I wouldn't want to take a chance.

KELLY: Stirewalt, you're focused on the Colorado poll. Why do you think that's the interesting one? They're tied now according to latest polls. She was up four.

STIREWALT: Because I think Virginia is fried like peanut, but Colorado has been underpolled. People have taken for granted that this is Democratic state. Now, there have been Trump leads in polls earlier here. Colorado is in play. And remember, Trump needs to flip a big blue state. Now Colorado is not quite big enough.

But you put that together with Nevada, you put that together with Iowa, you put that together with Ohio, which are all states where Trump has polled consistently well and you start to see an alternate pathway for Donald Trump. This Colorado poll maybe it's -- the samples a little wider than it ought to be, maybe...

KELLY: Wider or whiter?

KELLY: Whiter like me. Maybe too many people of pallor in the sample, but either way, I think the race in Colorado is a heck of a lot closer than people have assumed.

KELLY: How important, I mean, with just days to go, this feeling that he's got momentum and that she is in trouble and by that I mean not only you know, campaign trouble, but legal trouble.

PERINO: It feels really big to me, and that, I am not basing this on a poll. I'm just saying from my gut instinct that if you look at that, yes, she has momentum, yes she has and early voting on her side in some states but to me this is such a big deal that I could imagine a scenario where he definitely wins the popular vote. The Electoral College then maybe becomes in question. I know you don't believe...

KELLY: Mocking you -- off camera mocking.

PERINO: Mocking me...

KELLY: For me.

PERINO: ...but on that night, someone will...

STIREWALT: We've been having this debate since May and I think you're wrong, but that's all right.

KELLY: You know what, can you have it here since nobody watches that Sunday night show. Oh, my god, I'm turning into O'Reilly.

PERINO: It wasn't even on Sunday night, it was on our podcast.

KELLY: Why is that not possible? Why the mocking?

PERINO: Yeah, Chris.

STIREWALT: It is certainly possible. I would never submit that it is not possible. What I'm saying is some of these polls are right, some of these polls are wrong. There is a picture of the nation right now that says that Hillary Clinton is ahead by a substantial margin and is going to win the election.

There is another one that says that Donald Trump is surging through and we're seeing it in a couple of polls here and there. One of the two things is right. I doubt we're going to have a split decision.

KELLY: I'll tell you what, she is probably delighted that this election is not happening on December 8th. You know? It's like already you hear, she's like vote, vote early! Vote immediately! Okay, I got to go. Good to see you both.

PERINO: Thank you.

KELLY: Coming up, I just want to tell that you something just hit on the "Wall Street Journal" which is going to be big news tomorrow too. It follows up but it's a little bit different than the Bret Baier reporting that we just got about a split between the FBI and justice and some secret recordings. We're going to get into that in a minute.

Also coming up, new warnings about possible trouble at polling places on election day. Former congressman Pete Hoekstra and Richard Fowler are here to discuss. Don't go away on a busy news night.


KELLY: Breaking tonight, we just got some dramatic reporting from the "Wall Street Journal" showing what appears to be a serious split between some investigators at the FBI and some of the more senior officials there along with the Justice Department on the other side. According to the Journal,
owned by the same parent company as Fox News, agents at the bureau thought it had enough evidence to launch an investigation into the Clinton Foundation a year ago.

But senior officials at the Department Of Justice appear to have shut them down. Joining me now is Pete Hoekstra, former congressman and national security adviser to the Trump campaign and Richard Fowler, Fox News contributor, great to see you.


KELLY: So just bear with me because this is just hitting. And the headline is "Secret Recordings Fueled FBI Feud in Clinton Probe." The reporting by Devlin Barrett and Christopher Matthews is that they had -- the FBI secretly recorded conversations of a suspect in a public corruption case. This person was talking about the alleged deals that the Clintons made.

And the FBI investigator said this is worth checking out, that this goes well beyond what we saw on "Clinton Cash" by Peter Schweizer. This is something worse or more and we're pushing hard to look into this. Apparently prosecutors at the DOJ said its hearsay, its weak, it doesn't warrant aggressive tactics like presenting evidence to a grand jury. And the person secretly recorded was not inside the Clinton Foundation.

And thus a disagreement unfolded between some FBI investigators and according to this justice on the other side of the disagreement and some FBI senior officials were on the other side of the disagreement, but it appears that Mr. McCabe of the FBI -- this is the same guy I think whose wife ran for state senate in Virginia, right, who got the big donation from Terry McAuliffe, friend of the Clinton's and governor there.

He was apparently defending his agents saying -- objecting -- saying, "You're telling me I need to shut down a valid lead predicated investigation?" And justice said "no, you don't need to." So that's something that perhaps rehabilitates Mr. McCabe in the eyes of some of his critics who thought he was too team Clinton. I know it's confusing but the bottom line for the bureau appears to be that some FBI agents really felt this thing was worth pursuing.

And on top of the news we got tonight, congressman, about some agents saying they believe there might be enough to indict, your reaction?

PETE HOEKSTRA, FORMER MICHIGAN CONGRESSMAN: This is not at all surprising, Megyn. I mean, for the last number of months and maybe now it goes back a year and this may have been where this all started from is that FBI agents, they are committed to doing the right thing. They see evidence or at least an indication that there might have been some wrongdoing -- they start pursuing it then they start asking to have the tools, you know, give us the opportunity to get warrants, subpoenas and present evidence to a grand jury and they are shut down.

They want to get to the bottom of these things whether it's the Clinton Foundation, whether it's the e-mails, it appears to be a pattern of protecting the Clintons and this just infuriated and started creating this great dissension within the FBI because they are believing they are not entitled or unable to do their job and everything that seems to have come out over the last number of months seems to confirm that.

KELLY: I've never seen so many leaks out of the FBI or Justice. This is big. We're going to continue on the other side of the break and get Richard's reaction. Don't go away.


KELLY: Back now with our breaking news, and Richard, what the Journal is saying is that the officials at Justice sent a message to all offices to stand down on the investigation into the Clinton alleged corruption. And the FBI agents were ticked off about it and didn't appreciate that because they thought there was something there. Go ahead.

FOWLER: Here's the thing, I think this comes down to two words, prosecutorial discretion. It is the job of the prosecutor to determine what will make it to the grand jury and what will make it to court. Based on what we saw, mind you I wasn't in the room, neither are you. You're a lawyer, counsellor. We just don't know what was in this evidence as to why they didn't think it would make it to trial or why they said this investigation should stop. But with that being said, I got tell you this is a leak-a-palooza (ph)...

KELLY: It is.

FOWLER: ...between the DOJ and the FBI. I think they're racing to who's going to leak first.

KELLY: They never leak.

FOWLER: And this is unprecedented.

KELLY: Right.

FOWLER: an election with just six days left for all this leaking to take place.

KELLY: What about that congressman? You know you've been on like -- and they helped her (ph) a long time, what about the leak-a-palooza (ph).

HOEKSTRA: Yeah. I think what you're seeing Megyn is there's total lack of confidence in Loretta Lynch. Peter Cadzik -- you saw those e-mails come out today. What these FBI agents and I think what America is screaming out for, this now requires a special prosecutor to go under there and have an independent view.

KELLY: Richard, for special prosecutor?

FOWLER: No. We just need the leaking to stop and for the American people to have a chance to see what all this leaking is about so they could actually go and vote in six days.

KELLY: Before I let you go, what do you think, Richard, Virginia now Trump up 3?

FOWLER: I am from Virginia. I was a Virginia delegate to the convention four years ago. I agree with Chris Stirewalt. Virginia is fried as a peanut for Hillary Clinton. There is no chance that Trump will -- where Trump will win there, but this election getting close, Megyn, on election night. I will be with you and it's going to come down to Latino voters in places like Broward County, and Miami-Dade County, Florida and Colorado.

KELLY: Can't you just boil the peanut so it's not as bad for you? I think we're really disparaging that nut unfairly. Great to see you both. We'll be right back.

FOWLER: Good to see you Megyn.


KELLY: A couple of years ago we had guy on "The Kelly File" who gave a killer graduation speech. The theme of which was, "You Are Not Special." He was trying to convince today's millennials that being extraordinary was something they would have to prove to the world. Not a given that world would afford them. I loved it. Because it mirrored the philosophy my own parents raised us with. And in my new book "Settle for More," here it is -- yes, thank you, thank you. You'll see, thank you. That's Sean Hannity, he feels it too.

You will see that I wasn't raised to believe that I was anything special at all. And that as it turned out was great gift to me. See, I knew growing up that, you know, what I was and wasn't good at because nobody ever lied to me about my talents or the lack thereof. I wrote a this book in part because I want people to see that coddling their kids into thinking they are amazing at everything is really quite damaging, not to mention dishonest and bad for the kid and country.

Anyway, I did eventually manage to find something I was pretty decent at, I'm doing it right now. You know what I'm saying. Yeah, I know. And I have written all about that journey in my new memoir "Settle for More." It's a very personal book. It's revealing. It's been under an embargo. Basically, they would have to hurt you if you found it. The publishers were like this.

I first got it yesterday. No one has it. But can you have it delivered on November 15th if you order it now,,, "Settle for More." Check it out. Here's Sean.

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