This is a rush transcript from "The Kelly File," June 15, 2015. This copy may not be in its final form and may be updated.
MEGYN KELLY, HOST: Breaking tonight, some of the oldest and most respected giants of American media calling out the Hillary Clinton campaign tonight for unacceptable behavior. This after the campaign bans a reporter allegedly because they did not like his reporting. Although Clinton says, "that's not the reason."
Welcome to "The Kelly File," everyone. I'm Megyn Kelly. The Wall Street Journal, The New York Times, The Washington Post, and some of the country's biggest print media have tonight issued a direct challenge to the Clinton team. To better explain why they refused to let a fellow print reporter cover her campaign today. The latest dust-up with the Press Corp, Mrs. Clinton has largely ignored since her presidential run was first announced. This weekend the Clinton campaign relaunched her just launched campaign.
And at her event in New York, a reporter for the "Daily Mail" filed stories, pointing out that only a few thousand people showed up for the big event which she won't on to characterize as a, quote, "Slightly more arrogant Woodstock." Forty eight hours later that reporter David Martosko, shows up to board the campaign van and is told, "no way." The campaign says, it was all because of a technicality although its explanations have been conflicting. But neither that reporter nor the publications we just mentioned are buying the Clinton camp's explanation.
David Martosko is the U.S. political editor for the Daily Mail and winner of the 2012 Edward R. Murrow award for writing and he is the reporter who was barred. David, thank you very much for being here. Just so the audience knows, you were the pool reporter for the day. And that's what we have to do when the Clinton camp or any camp won't let us all go. We select one and that person is responsible for reporting for the group and that's the way it is always done. Not so for you. This morning when you tried to cover her event, what did they tell you?
DAVID MARTOSKO, DAILY MAIL, U.S. POLITICAL EDITOR: Well, you know, I got there when I was told to get there. Quarter 8:00 in the morning, I showed up in the parking lot and told them who I was and they said, "No, you can't come." Just for context, I arrived in Manchester last night after midnight and was told then like seven hours before, I was supposed to show up for pool duty that they wanted a different person representing the pool for the campaign all day Monday. The pool in general is a very tight- knit organization. It is very loose but it's a tight-knit group of professionals and to a man and woman they all said, no. The Clinton campaign does not get to choose who covers them. And that's really the controversy today.
KELLY: Correct. They don't get to control that.
MARTOSKO: This is the kind of thing we see in other countries that we don't want to emulate.
KELLY: They don't get to control that. I mean, this is just one thing that she doesn't get to control. She wants press covering her. That whole goal for politicians is to have the people covering them. And then we the press get this idea, but one of them is, who is going to go in there and represent us. And now the campaign, first they came out and they said, well, you're foreign press. And you responded by saying, there's lots of foreign press and they've acted as pool before.
MARTOSKO: That's true. The Guardian, AFP, the French News Agency. You know, to say nothing of the fact that several other organizations are majority or partly owned by foreign interests. That's a red herring argument. I think the real reason is between dinner time yesterday, when they e-mailed me a confirmation saying you're the pool reporter, and here's where it go, and midnight when they changed their mind, they looked at our reporting and the Daily Mail is a very, sort of dogged, thorough reporting organization. And we don't tend to show up and do what we're told. We dig deeper stories and we find interesting stories, that our readers, that massive audience wants to read.
KELLY: Well, for example --
MARTOSKO: And one of those stories that Clintons don't like.
KELLY: Explain the one about Iowa in particular. Because that one led to a lot of bad press coverage for her.
MARTOSKO: Sure. The very first episode of any kind of press coverage in Iowa was in Le Claire, Iowa, it was a breakfast meet and greet with three people in a coffee shop. And the campaign spun it as, this is spontaneous. She just showed up in the coffee shop, and sat down and talked with people. We actually called one of those people afterwards and he told me that he was invited to come. He was pre-vetted by their political director and then driven to the coffee shop as were all the other participants. So, this was kind of a cooked up panned event that was anything but unscripted. And that of course, you know, the story telling of all this, that became the pattern for the Clintons. But this was the first one.
And DailyMail.com, we broke that and several other stories. To be clear, Megyn, I have to just authorize, a gentle correction in one thing. I didn't say that Hillary Clinton's event on Saturday was a slightly more arrogant Woodstock. That's what one of the attendants told me.
MARTOSKO: You know, one of the folks there authorized it that way. I did however tweet that I was embarrassed as a journalist to see how many journalists reported on Saturday only what the Clinton campaign wanted them to. But we have a duty to do more than that. And I think the Clinton campaign at this point doesn't have a lot of tolerance for reporters who, you know, stray outside the lines.
KELLY: What is your reaction to the reaction from the press pool? I mean, you know, The New York Times, The Boston Globe, The Financial Time, New York Daily News, Politico, Time, all joining -- Wall Street Journal, Washington Post, all joining in this statement tonight saying, "We have not yet had a clear explanation about why the pool reporter for today's events was denied access. But any attempt by the campaign to dictate who was in the pool is unacceptable." The pool is open to any print organization willing to take part. They stand shoulder to shoulder with you tonight to say to Hillary Clinton's camp, no.
MARTOSKO: Well, they should, frankly. Every reporter from every news organization. Whether you like the Clintons or not should stand shoulder to shoulder with us. And, you know, it is really unfortunate that we have to be the story here. This is not about the Daily Mail or DailyMail.com, it's not about me. It's about trying to make sure that reporters had the freedom to go to these events and cover them. You know, this happened twice today, by the way. I came right over here from an evening event where Mrs. Clinton was the keynote speaker at a Flag Day dinner held by the Manchester Democratic Party, I showed up again and said, I'm the designated pool reporter and I was told, "You need to leave." I find that unacceptable and offensive and I think most of my journalistic colleagues do as well.
KELLY: Thank you for being here, David. We appreciate you coming on.
MARTOSKO: It's my pleasure. Any time, Megyn.
KELLY: Well, our next guest says, there's no way this campaign would be dumb enough to ban a reporter for what he writes. This must be a technical glitch.
Robert Zimmerman is the democratic strategist and co-founder of Zimmerman/Edelson on Public Relations. Robert, this is bad, this looks bad for her.
ROBERT ZIMMERMAN, DEMOCRATIC STRATEGIST: No campaign, not just this campaign but no campaign would be dumb enough. I mean, that's we're going to hear --
KELLY: Their explanations don't make sense.
ZIMMERMAN: Actually, their explanation was very clear.
KELLY: No, it wasn't.
ZIMMERMAN: They made the point that he was not admitted to the White House press pool and they're trying to follow the White House --
KELLY: First they said he was foreign press. First, the campaign Press Secretary Nick Barrell (ph) said the concern was that their foreign press. And then he fought back and said, there's a lot of foreign press that access pool, and then they changed the explanation.
ZIMMERMAN: His point was, they were trying to follow the White House process and protocol. This reporter admitted he was not yet because of a timing issue admitted to the White House press pool.
KELLY: They have, no, no, no, no. They have a White House correspondent, Francesca Chambers is a White House correspondent. She's been vetted and has a hard --
KELLY: The only reason they're not actually part of the pool is because they haven't received their pass yet.
ZIMMERMAN: That's right.
KELLY: But that was, the Clinton camp only went back on that when their first explanation failed. And you're telling me, The Time Magazine, New York Times, Politico, Washington Post, Wall Street Journal, "Boston Globe," they're all wrong? You know better? And all these organizations are wrong?
ZIMMERMAN: No, I'm not saying they're wrong. And I'm not saying that the Clinton campaign has no history of blocking reporters from the press pool. And let's face it --
KELLY: But the Obama administration of which she was a part does. Because there was a time when they were offering round Robin interviews with all of the press and the one organization they refused to allow was Fox News. And guess what the pool did. They said, no, you don't sit with Fox you don't sit with any of us. The pool sits together.
ZIMMERMAN: But here's what the problem, Megyn, we're talking about the Hillary Clinton campaign. She's been through many campaigns and she's been the victim of a lot of bad press. They have no history of this. This is not the great left wing conspiracy.
KELLY: She has a history of not speaking to the press since she launched.
ZIMMERMAN: Actually not. The press unveiled today for 20 minutes.
KELLY: Very limited.
ZIMMERMAN: Here's my point, next, I'm sure they'll be calling for a Congressional investigation and Rush Limbaugh will be calling for a special prosecutor.
KELLY: No, because these aren't Republicans, these are members of the press.
ZIMMERMAN: And no one is disputing the members of the press. We're simply saying, I'm simply saying, as one democrat, as a supporter of Hillary Clinton that there was no history to show that they ever have this practice of blocking reporters from the press pool. This is a logistics issue. And it is great topic for people who are stoned on Twitter looking for conspiracy.
KELLY: Stoned? (INAUDIBLE)
ZIMMERMAN: Just the folks on Twitter.
KELLY: Just the folks on Twitter, "The Kelly File" viewers are not stoners. Great to see you.
ZIMMERMAN: Good to be with you.
KELLY: Don't hold it against him. We might have a few stone viewers out in Colorado in particular.
KELLY: Well, there was a dramatic twist today to one of the biggest stories in the country as the head of an NAACP group resigns after news leaks out that she was only pretending to be black. Her parents are here live right after the break.
And then, whoa! Did you hear Joyce Miller's (ph) story? The prison worker accused of helping two killers escaped was apparently, reportedly having sex with one of them and plotting to kill her husband and there's more.
Plus, a pair of teenagers whose limbs in two awful shark attacks yesterday, hours apart on the same beach. A shark week expert is here on the possible connection between two incidents and what to look for in the water before you go swimming. He may know why this happened.
(BEGIN VIDEO CLIP)
CALLER: Hey, there's been somebody attacked by a shark! I was -- 55th Street.
911 OPERATOR: Okay, ma'am, I need for you to calm down. I'm having a hard time hearing you. What access are you near?
CALLER: We're at 55th Street.
911 OPERATOR: Fifty fifth?
CALLER: Yes, ma'am. His arm is gone.
(END VIDEO CLIP)
KELLY: Developing tonight. New controversy surrounding NAACP leader Rachel Dolezal. Earlier today, she resigned as president of the chapter in Spokane, Washington, after she was caught in an apparent lie. Pretending to be African-American when in fact she is Caucasian.
Rachel's parents are here tonight to speak to "The Kelly File." But first Trace Gallagher is in our West Coast Newsroom, with the dramatic way this story exploded over the last 72 hours. Trace?
TRACE GALLAGHER, FOX NEWS CORRESPONDENT: And Megyn, Rachel Dolezal still hasn't addressed the allegations that she's been lying and calling herself black, nor has she apologized. Instead her resignation statement for the Spokane, Chapter of the NAACP's say, she is becoming too much of a distraction writing and I'm quoting here, "Many issues face us now that drive the theme of urgency. And yet the dialogue has unexpectedly shifted internationally to my personal identity in the context of defining race and ethnicity." She claims to be Black and White, her parents say, she is German and Czech and they have the pictures and documents to prove it. And now her adopted siblings who are part black are also calling her out. Listen.
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: She took me aside when I was over there and told me to make sure that no one found out where she was actually from. And for me not to blow her cover.
(END VIDEO CLIP)
GALLAGHER: Dolezal teaches a class at Eastern Washington University called the Black Woman's Struggle. She once told a student that being a black woman was a burden. And that the gays is so strong in a solid white community that you have a sense of being on display. But Richard Dolezal also once reveal her struggle as a white woman. In fact, in 2002 she unsuccessfully sued historically black Howard University for discrimination. Saying she was denied a teaching job because she's white. And it's not just her ethnicity that's being challenged. Dolezal also claims she was raised in a teepee and hunted for food with a bow and arrow, and that because she's black, she's been the victim of hate crimes. Saying she once found an envelope in the Spokane NAACP post office box with pictures of lynchings. The Post office says, there was no postage on the box and whoever put in it there had a key to the box -- Megyn.
KELLY: Trace, thank you.
Joining me now with reaction, Rachel Dolezal's parents, Larry and Ruthanne Dolezal. Thank you both for being here. Ruthanne, let me start with you. First of all, did she ever, was she born in a teepee?
LARRY DOLEZAL, FATHER OF RACHEL DOLEZAL: No. I thought you asked my wife. Sorry.
L. DOLEZAL: No, she was not born in a teepee. She was born in this room next to us here in our home.
KELLY: Did she grow up hunting for food with a bow and arrow?
L. DOLEZAL: No. But I did.
KELLY: And the other allegations she makes is that you two would punish her and her siblings by skin complexion using something called a baboon whip which was used to ward baboons away in South Africa. True?
L. DOLEZAL: That isn't true because when we were raising her, we didn't have her siblings.
KELLY: Do you have a baboon whip that you use to punish your children?
L. DOLEZAL: We had a baboon whip in South Africa to ward off baboons.
KELLY: And did Rachel live with you when you live South Africa?
L. DOLEZAL: No. She did not.
KELLY: She had already achieved adulthood at that point.
RUTHANNE DOLEZAL, MOTHER OF RACHEL DOLEZAL: Right.
L. DOLEZAL: Yes.
KELLY: All right. So this story is so bizarre. I mean, Ruth Anne, you tell me, when did you first learn that she was living representing herself as a black person?
R. DOLEZAL: It was around 2007 when we first saw a newspaper article from Spokane, Washington, area that Rachel had represented herself to the press as being African-American or biracial.
KELLY: Were you shocked?
R. DOLEZAL: Well, we thought, what is this? She's not telling the truth.
KELLY: And did you call her up and say, what are you doing?
R. DOLEZAL: No, she did not want to communicate with us about anything. She didn't want to communicate with us.
KELLY: OK. She comes out and says --
R. DOLEZAL: In fact --
KELLY: I'm sorry, go ahead, Larry.
L. DOLEZAL: I was going to say, in fact, she asked us not to come to the Coeur D'Alene, Spokane area when our grandson, her son Franklin had reward ceremony, sporting events or when our adopted son who went to live with her Isaiah --
R. DOLEZAL: -- graduated from high school.
KELLY: Because she didn't want the world to know that you looked the way you look, Larry. And she had represented this other person. We have a picture of him, to be her father who was African-American and of course now we know that's not the case. Now, she says, you know, she identifies with black culture, I guess. And, you know, I guess she says race is a more complicated issue than we understand. You know, does she have a point in your view?
L. DOLEZAL: Somewhat because she has definitely assimilated into black culture and the black community for the last 20 years.
KELLY: My other question is, she has come after you guys saying, look, the timing of this, of your disclosure about her actual race is suspicious. Because she says that her sibling, her brother, has been accused of child sexual assault against another one of her siblings, an adopted child of yours. That case is pending and she thinks this disclosure by you has something to do with it. Do you want to comment on it?
R. DOLEZAL: Well, first I would comment that the allegations are totally false and malicious. They are fabricated, and we are hoping that the courts will deal with him as they should be dealt with. Also, the reason why we spoke to the press about Rachel's ethnicity was because she was under investigation from law enforcement in Spokane for these, for claims that she had hate crime mail in the NAACP mailbox. And so that was the source of the investigation, her claims.
L. DOLEZAL: That led the Coeur D'Alene press into calling us to see if we could validate her claims or not to be African-American. And we said, well, no, we're both Caucasian, we're of European descent. She's our birth daughter.
KELLY: All right. I have to go. Last question. Do you think she's pathological?
R. DOLEZAL: I think Rachel has some very serious issues, yes.
KELLY: Thank you both for coming on with your side of the story. We appreciate it.
L. DOLEZAL: Thank you, Megyn.
KELLY: Up next, the frightening results of a "Kelly File" investigation in an explosive case at Amherst College. Don't turn the channel. Just stay tuned and watch what happens when a student is accused of sexual assault on a college -- just trust me, all right? Trust me.
Plus -- as the manhunt for two escaped killers unfolds, everyone is focused on the prison worker who let them out.
Judge Napolitano says, we ought to be also looking at Governor Cuomo. Stay tuned.
(BEGIN VIDEO CLIP)
GOV. ANDREW CUOMO, D-N.Y.: We don't know if they are still in the immediate area or if they are in Mexico by now.
(END VIDEO CLIP)
KELLY: A "Kelly File" investigation tonight and a stunning one after a male student at Amherst College gets expelled in an alleged rape case that has serious flaws in it. Critics say, this case is a perfect example of how Obama administration guidelines are changing the rules in the search for what may or may not be justice on campus.
Trace Gallagher has the background. Trace?
GALLAGHER: Megyn, in 2012 after a night of drinking a former student who is now using the anonymous name of John Doe accompanied his girlfriend's roommate back to her dorm room. And while John Doe claimed he was blacked out, the accuser admitted performing a sex act on him. Twenty one months later she accused him of sexual assault. The school said his account of being blacked out was credible but still ruled against him and expelled him. John Doe then got a lawyer who discovered text message that's proved he did not initiate the sexual encounter including a message the accuser sent to a girlfriend admitting she did something really stupid and said her roommate would never forgive her writing, quote, "It's pretty obvi I was not an innocent bystander."
She also acknowledge, John Doe was intoxicated to the point of incoherence telling her friend that he was, quote, "Too drunk to make a good lie out of blank." The accuser told the college that after the sexual assault, she invited another male friend over because she felt alone and confused. Yet she had earlier texted the other male friend writing, quoting again, "I mean, I have my room to myself this weekend if you wanted to come over and entertain me." She then admitted to a female friend she had sex with the second man after she had sex with John Doe.
The texts were given to Amherst but the school would not reopen the case. It is unclear why she waited 21 months to file the allegation. But in those nearly two years, the accuser lost most of her original friends, including her roommate, and the lawyer for John Doe says, her new friends all happen to be victims' advocates. Amherst now says it's confident the process followed is consistent with federal requirements -- Megyn.
KELLY: That may be the problem.
Our next guest has followed every turn in this case. K.C. Johnson is a professor of History at Brooklyn College and is co-author of, until proven innocent which is about the shameful injustices of the Duke Lacrosse rape hoax.
Thank you for being here. It is hard to understand how wrong things went here. A woman accuses a man of raping her. Twenty one months after the alleged rape, she never went to the medical authorities, she never went to the police. She gets aligned with victims' rights advocates and her friends turn their backs on her because the person who allegedly raped her was her roommate's boyfriend. The injustice of the process that happened at Amherst once her case went through the authorities is where things get really awful. Explain how it is set up to protect, oh, no, not the accused but the rights of the accuser.
K.C. JOHNSON, PROFESSOR OF HISTORY, BROOKLYN COLLEGE: Right. So in 2011, the Obama administration essentially ordered all colleges to change their sexual assault procedures. Amherst was one of the colleges that got this order. They changed their procedure. And essentially the procedure there works under the assumption that the accused is guilty and needs to use the hearing to prove his innocence. But he isn't given the tools to do that. He doesn't have discovery. He can't get the relevant evidence that he needs. He doesn't have an attorney representing. Limited right of cross-examination. So, there's virtually no way once an accusation is made and gets into the system at a place like Amherst, and Amherst is not unique, that the accused can be exonerated.
KELLY: You're done. Once you're accused, you're done. You can't have a lawyer in there representing you. And the rules say, don't allow the accused to cross examine the accuser because it could be intimidating and threatening for her. Well, she might be a liar, she might deserve a little intimidation if she is lying as it certainly sounds the alleged victim in this case did. Talk about the evidence. Okay. So, first of all, this guy, John Doe, got expelled. He said, not only did it not rape this girl. She did a sex act to me that I did not consent to. He got expelled. And then after he got expelled, how did he get all these e-mails which we'll going to get into?
JOHNSON: There had been talk that the accuser in this case had texted friends about what happened on the night in question. But the Amherst investigator didn't explore this. The Amherst disciplinary panelist didn't explore this. And he didn't have a lawyer. He got a lawyer afterwards. The lawyer who is a very good attorney started asking questions. And the two people that the accuser was texting, who were outraged by the fact that the accuser was misleading, gave the, produced these text messages.
KELLY: The e-mails, I mean, make very clear. This is after her alleged rape. Her alleged sexual assault by John Doe who was thrown out of school. She texted a resident adviser. "Oh, my God, I just did something so f-ing stupid." Response. "What did you do?" "I f-ed John Doe." The resident adviser. "No, you didn't." And then she goes on and says, "Official story is he puked and I took care of him but yes, yes, I did." Then after that, this is her talking about her alleged rape.
Then after that, she texts another man and asked that man to come over. And why don't you tell audience how she represented, why she said she need that had second man's company on the night in question? What she told the board evaluating her sexual assault claim?
JOHNSON: She told the disciplinary panel that she was so traumatized by John Doe assaulting her that she needed someone to come over and comfort her. In fact, the person, the man she had invited previously to come over, she then had sex with. She admitted this in another text to get another friend.
KELLY: So she testified that she was distraught and she needed the comfort of a friend. But meanwhile, this is what she was texting a friend when the second man came over. She was irritated that he was taking so long to engage in sexual conduct with her. She texted to her friend, "Why is he just talking to me? Like hot girl in a slutty dress. Make your move. Yeah." And then she sends a text message saying, "Oh, my God, action did not happen until 5:00 in the f-ing morning."
Then when it came out that, you know, this might not look very good. And that her -- her roommate, might be upset that she had performed a sex act on the roommate's boyfriend, she decides to say, "My roommate knows me. It is pretty obvi I was not an innocent bystander." My head is going to explode. How does this girl get a guy thrown out of school based on this?
JOHNSON: Well, but she's operating in an environment and Amherst is not unique here in which the presumption is that any accuser is truthful, and the process is set up really with indifference to the truth. The idea is to prevent re-traumatization and to an actual victim, this is of course very important. But when you have a case where the accuser in this case is not telling the truth, there really is no way to determine this.
KELLY: She hasn't offered her side of the story on any of this.
KELLY: Amherst is refusing to reopen the expulsion of this young man. They won't even look at it?
JOHNSON: That's correct. That's not atypical. And Amherst approaches he had his shot. He didn't take advantage of it and they have no moral or legal obligation to re-open it.
KELLY: Guess again, Amherst. A judge is now going to have a say on this. And this cannot stand. It cannot stand. This -- does violence to the justice system that is set up to protect victims and the accused. The unfairly accused who have rights as well. Casey, we're going to stay on this. Thank you for break the story and bringing it to our attention.
JOHNSON: Thank you for having me.
KELLY: And again, Amherst tonight is stressing that the media currently only has one side of the case. But they're confident in their process.
Also tonight, we have shocking new reports in the hunt for two escaped killers. As we learned the prison worker accused of helping them get out was reportedly having sex with one of them and plotting to kill her husband. And there's more.
Two shark attacks in less than two hours along the same stretch of beach, we've got a Shark Week pro on the possible causes behind this rare double attack. He thinks he may know why there were sharks in these waters. And he'll tell what you to look for before you go swimming.
KELLY: Dramatic new reports tonight about the prison worker accused of helping two convicted killers escape. With authorities admitting now these guys could be anywhere. Reports that Joyce Mitchell, the 51-year-old woman who has been arrested and charged with helping these guys escape may have been plotting to kill her husband, with sources suggesting she had relationships with both of these convicts while they were behind bars. Now they're serious questions about what her fate could be if these guys decide to do anything drastic before they are -- we hope, eventually caught. Mark Eiglarsh is a Criminal Defense Attorney, a Former Prosecutor. Arthur Aidala is a New York Trial Attorney and a Fox News Legal Analyst. This is unbelievable. So Mark, they are saying that this woman had allegedly had a sexual relationship with the younger one. Then they investigated that. They found nothing. No there there. But then the older one who dismembered his victim, that's how he wound up in prison. He started having some sort of a thing with her and they decided that they would kill her husband. Also a prison worker but she backed out. Do I have it about right?
MARK EIGLARSH, CRIMINAL DEFENSE ATTORNEY: Yeah. Bad facts if I'm defending her. And since I lost the coin toss tonight, Arthur I'm forced to make her my fake client.
KELLY: That's right. Unlike Amherst, we provide a defense for all of the accused.
EIGLARSH: Exactly. So here's what I would say, ok. Number one, I haven't been paid yet but I'm going to play along. Number one, the legislator's deem her reprehensible actions with a maximum eight years. That's what she's facing. So the question is should she get eight years? And I know people are yelling at the screen absolutely. But I would say here are some things to consider. Number one, she immediately accepted responsibility for what she did. Secondly, she cooperated. Again, give eight years to those who say I'm not going to help you fix your vulnerability in the prison. To help you find these guys. She did all that. And I would also say she is obviously very disturbed and vulnerable which made her perfect for these predators. They worked her over emotionally and physically.
KELLY: Too bad. We don't help two convicted killers get out of prison.
EIGLARSH: I'm not defending her reprehensible actions, just trying to get her a better sentence.
ARTHUR AIDALA, FOX NEWS LEGAL ANALYST: The word I would use is deterrence, deterrence, deterrence. This is a national case. This woman has to be punished to the fullest extent of the law, even if it means being a little creative. And when I say being creative Megyn, what happens right? You talked about her talking about killing her husband? To be in love in a conspiracy, there has to be an overt act. Was the overt act -- meaning you having to do something about it. Was the act of her allowing them to escape or helping them to escape, is that a step towards killing her husband? Could she be charged with the attempted murder? Or aiding or abetting or anything more than...
KELLY: Here's my other question for you. Listen. Here's another question for you. These things don't tend to end well. These guys are not likely to go down without a fight if and when law enforcement catches up with them. So if anything were to happen, Mark. If anybody were to get shot, god forbid it's a civilian or a cop, while these guys in the process or die in the process, could she be held responsible criminally for that?
EIGLARSH: Well I don't think so.
KELLY: Not felony murder?
EIGLARSH: No. It's such a stretch. I don't think the prosecutors would do that.
EIGLARSH: It is a great answer on a law school exam. But in reality, I think that you hold her responsible for what she did. And that's the maximum.
KELLY: I don't know is it not foreseeable that could happen?
AIDALA: The reason why there's more of an argument about the husband, is they shared at one point the same mental state. They shared the same intent on the same subject matter. When they get out -- we don't know if she ever had a conversation with them -- when you get out if you have to kill someone to escape, that's fine. There has to be a meeting of the minds. We have evidence there was a meeting of the minds about killing her husband.
EIGLARSH: Megyn, I got a question for you.
KELLY: Yeah, go head Mark.
EIGLARSH: I ask you, Judge Megyn in this mock trial here, do you not give her any credit at all for cooperating with law enforcement, the fact that she also didn't put prosecutors to a potential trial? Do you not give her any benefit, you give they are maximum sentence? What about future people? We want to you cooperate and you get nothing.
KELLY: All I know is -- two killers, including one guy who tortured and then dismembered his victim, are running around on the loose tonight and families are under lock and key terrified that they might be the next victim. And these things don't tend to end well. And Joyce was supposed to be helping protect the people and instead she helped endanger them.
KELLY: Go ahead, Arthur.
AIDALA: Usually though Megyn, in real life, prosecutors and judges do give credit when you come to the realization that you did something wrong before you get caught. And here before she got caught, she did take actions to stop this, in other words...
KELLY: They were a little late. When the D.A. said what she decided she didn't want to kill the husband after all she loved him, and she didn't want to do it to him. So she went to the hospital and had a panic attack. All right, I take it back. I give her a little credit, but not much. Two weeks in a row I'm giving you a concession at the end of the session.
Good to see you both.
EIGLARSH: Thank you.
KELLY: They're good. That is the thing. They're very good. That's why we have them on. Also tonight, only on "The Kelly File," details on the real shocker in this manhunt. Judge Andrew Napolitano on why he thinks Governor Andrew Cuomo may share some of the blame over the fact that these guys are still free and why the cops are still really unhappy with him. Plus, an incredibly rare double shark attack leaves two victims two hours apart on the same beach. We'll speak to one of the Shark Week pros about why he thinks it happened and why, how you can help prevent it from happening to you, next.
KELLY: Troubling new allegations tonight in this hunt for these two convicted killers in New York State. As reports surface now that some law enforcement officials are furious with Governor Andrew Cuomo and how he's handled the case. Judge Andrew Napolitano is our Fox News Senior Judicial Analyst and a New York Times bestselling author, Judge, good to see you. So the headline of the New York Post was that Cuomo created a total cluster F word in the escaped killers' hunt. They are quoting...
ANDREW NAPOLITANO, FOX NEWS SENIOR JUDICIAL ANALYST: They are quoting law enforcement from upstate New York who are complaining bitterly about the personal involvement of the Governor, who insisted at the most crucial time in the search for these guys, right after they were discovered, that the prison officials stopped the organization of the search and gave the Governor a tour of the prison and the area out of which they escaped. And then the Governor, you just showed a clip from it, gave the same tour himself with cameras in tow. And none of this could happen until Governor was ready, until his political adversaries in the prison system were not there, and until the cameras were there.
KELLY: So he was holding up the process, according to these cops, or law enforcement officials to basically make it a P.R. opportunity for him.
NAPOLITANO: Yes he was. I think he is terribly afraid of an investigation into the management of this prison. Because we know that some very basic guidelines and the management of a maximum security prison were not followed. These guys were serving -- one of them, life without parole, the other 25 to life for horrific murders which you've already characterized. They were permitted to walk free in large areas of the prison and to wear civilian garb.
KELLY: They were in this like trusted area.
KELLY: How can you dismember somebody and torture them to death and be any sort of a trusted prisoner?
NAPOLITANO: They apparently charmed their way into this trusted area. They also apparently charmed their way into not being observed. In maximum security, the rule of thumb is every 30 minutes, eyeball to eyeball, prison guard to prisoner. These guys went to bed at 10:30 at night. The next time they were looked for was 5:30 in the morning and they were gone.
KELLY: What about the officials? Apparently there was someone who complained, who leaked that Joyce Miller, this woman, was allegedly having an affair with this guy on the left, the bald one. He is the younger one. And they investigated it and they found no proof. Now, I'm not saying it's true. I don't know whether it is true or not true. But clearly there was something to uncover between this woman and those prisoners.
NAPOLITANO: I'm going to suggest to you, and this is not just my thinking because we heard from the local district attorney earlier today. That other people must have been involved in this or willingly looked the other way. It took weeks for them to dig and drill. Where did the dirt go? Where did the debris go? How could nobody in the prison system have known this was going on? Unless they willingly looked the other way or the place was, Governor Cuomo, so grossly mismanaged that the public's safety is now in jeopardy because these two killers have been running loose for ten days.
KELLY: Has this become a legal issue for the state of New York, for the Governor, or is it just a political issue?
NAPOLITANO: Regrettably, it is probably political issue because the state of New York has given itself immunity. So a bone headed decision like let them wear civilian clothes, let them walk free in the prison, don't check on them every 30 minutes, it is probably protected. Meaning the state is immune from litigation for it. If they should harm somebody god forbid while they're on the outside running away.
KELLY: I have to go. Last question, do you have sympathy for Joyce? How do you feel with the last debate?
NAPOLITANO: I don't have sympathy for Joyce. I think she probably was the trigger for all this happening. But she may be just the tip of the iceberg.
KELLY: Oh boy, Judge, good to see you.
KELLY: Well next -- up next, two the shark attacks in less than two hours, along the same stretch of beach. We have a Shark Week pro on the possible causes behind this rare double attack. And what to look for before you go swimming. Don't miss this, next.
(BEGIN VIDEO CLIP)
JEB BUSH, PRESIDENTIAL CANDIDATE: Our country's on a very bad course. And the question is what are we going to do about it? The question for me, the question for me is what am I going to do about it? And I've decided I'm a candidate for President of the United States of America.
(END VIDEO CLIP)
KELLY: Former Florida Governor, Jeb Bush announcing his candidacy for president today, in front of a roaring crowd at Miami Dade College. Governor Bush joins ten other Republicans already in the race for the party's nomination. Joining the governor on stage, the 90-year-old Matriarch of the Bush Family, Barbara Bush, she received a standing ovation. She once famously said that there had been "Enough Bushes in the White House." But she has now had a change of heart.
A growing concern now after two kids are attacked by sharks on the same stretch of beach this weekend, and less than two hours apart. A 12- year-old girl and 16-year-old boy were attacked in separate incidents on Sunday, as they were playing in what's been described as waist high water, just 20 yards off the shore of Oak Island, North Carolina. Joining me now, Joe Romero who is a Shark Week Cinematographer and Expert, Joe, thank you for being here. All right, so what do you think it is that attracted the sharks to this particular area?
JOE ROMEIRO, "SHARK WEEK" EXPERT: Well, sharks are all traveling up and down our coast at this sort of time of year. The temperature has started to rise, and actually the Gulf Stream is starting to move up the coast, which causes a surge of migration through large predators as well as sharks. And I think -- some of them are migratory animals, some of them are species that are going to migrate this far and stop.
KELLY: So we need to worry about warm water? Are sharks more prevalent in warm water?
ROMEIRO: I think really the thing is to really look out for as far as like, sharks in general is, to not go into swimming at night or swimming in really murky water. Avoid dusk and dawn. To avoid those areas where you know that sharks may be feeding on food prey items, like say -- if you see a lot of bay fish at the surface jumping around, there's usually a lot of agitation. If there's a seal colony around, those are usually a good sign to say away from...
KELLY: We don't have any indication any of that was happening on this stretch of beach.
ROMEIRO: But also fisherman. If there are fishermen nearby and I heard there were fishermen nearby possibly catching sharks. If they were nearby and they were baiting the water, no one can really smell the water, I mean really, the sharks are the ones doing it. There's a lot of bait going into the water, there's a lot of scent going into the water. And really I think swimmers need to really be cautious as to how close they get to those people.
KELLY: You know, this is -- obviously in two hours, young kids, very disturbing, waist high water, by the way is that unusual, waist high water?
ROMEIRO: No actually it's not unusual, because that's where most of the people stay. But sharks will forage up to, you know, feet of water. I've seen them forage up to the point where they beach themselves and put themselves back in the water.
KELLY: You say they don't want to go in for the kill. Like if a shark attacks, usually it doesn't want to kill you.
ROMEIRO: No, I think this was all mistaken identity. I think the murky visibility plus you know, swimming around and quick flashes of activity, also like triggered the sharks' reaction to just react.
KELLY: So the bottom line is, is this like being hit by lightning, should people be concerned?
ROMEIRO: Very, very rare. It's very rare to hear about a shark attack. It's rare to hear about two shark attacks in a row in such a short period of time. I think you have more of a chance of being hit by lightning or slip on a banana peel and die before actually...
KELLY: You still send your kids in the water on any shore?
ROMEIRO: I would think so. As long as you follow, you know, certain basic rules and you know what's going on with the ocean, and then I think you're relatively safe as far as running into any kind of predator. Even those predators are really indifferent to you. Most sharks that we run into -- unless there's any kind of bait in the water they're very intimidated by humans and stay away and give us a huge wide birth.
KELLY: Mistaken identity. Joe, thank you. We'll be right back.
KELLY: Tune in tomorrow night for a big "Kelly File" lineup. Brit Hume is here, plus Trey Gowdy has Hillary Clinton's right hand man in Libya under oath tomorrow. Then tomorrow night, Mr. Gowdy comes here. He just released a press release saying he's gotten his hands on new e-mails. Let us know what you think of tonight's show, are you sympathetic with Joyce Miller? Facebook.com/thekellyfile, on Twitter @megynkelly. See you tomorrow.
Content and Programming Copyright 2015 Fox News Network, LLC. ALL RIGHTS RESERVED. Copyright 2015 CQ-Roll Call, Inc. All materials herein are protected by United States copyright law and may not be reproduced, distributed, transmitted, displayed, published or broadcast without the prior written permission of CQ-Roll Call. You may not alter or remove any trademark, copyright or other notice from copies of the content.