Sean Spicer on goals as the new White House press secretary; Scaramucci on questions over Trump's presidency and business

This is a rush transcript from "The Kelly File," December 22, 2016. This copy may not be in its final form and may be updated.

SANDRA SMITH, GUEST HOST: Breaking tonight, new video of that disturbing incident involving President-elect Donald Trump's daughter Ivanka allegedly being berated by an angry passenger onboard a plane. Even worse her three young children were traveling with her.

Welcome to "The Kelly File," I'm Sandra Smith if for Megyn Kelly tonight.  Ivanka Trump was traveling with her husband and three young kids on JetBlue flight out of New York's JFK Airport this morning. When another passenger noticed her and went off. The man reportedly screaming at her, jeering at her children and much more. Getting himself eventually kicked off of the plane. His partner posting this photo on Twitter showing Ivanka visibly upset. And just moments ago, a TMZ camera crew caught up to the couple to ask them about the confrontation.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Can I just ask if you regretted? Was it a bad idea to do it in front of everyone's kids?

(END VIDEO CLIP)

SMITH: The incident raising serious safety concerns about the new first family. And in moments, in a "Kelly File" exclusive, Sean Spicer, the newly named press secretary for the Trump administration will be here to respond.

But first, Peter Doocy is live in Palm Beach, Florida with more on this bizarre incident involving the future first family. What are we learning now?

PETER DOOCY, FOX NEWS CORRESPONDENT: Sandra, even though Ivanka Trump was sitting with her three young children and even though the holidays are here, this agitated air traveler laid into her because he was so upset he had to share the coach cabin of a commercial airliner with her. According to TMZ, some of the lines this man directed at Ms. Trump included, quote, "Your father is ruining the country," end quote. "Why is she on our flight? She should be flying private." But when given the chance to share his frustrations with the world, that flyer froze up.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Can I just give you a chance to tell your side of the story, man? Can I just ask you, man, an hour before takeoff, were you planning on harassing her?

(END VIDEO CLIP)

DOOCY: TMZ also reports the passenger who couldn't keep it together was holding a small child of his own but still didn't sensor himself. And don't think that was just a spur of the moment emotional outburst because before boarding the man's husband, tweeted quote, "Ivanka and Jared at JFK T5 flying commercial. My husband chasing them down to harass them.  #banalityofevil." That twitter account which also shared a post describing the disrupter's demeanor as calm has since been taken down and the traveling party that was removed from the plane was delayed getting from New York to San Francisco.

But they were still allowed to fly today because JetBlue booted them from that jet and rebooked them on a later flight explaining that flight attendants were following protocols that goes like this. Quote, "If the crew determines that a customer is causing conflict on the aircraft, the costumer will be asked to deplane especially if the crew feels the situation runs the risk of escalation during the flight."

By all accounts, nothing ever got physical on this flight and by all accounts, Ivanka and her husband Jared Kushner took the high road, they didn't yell anything back -- Sandra.

SMITH: Peter Doocy, thank you. We need to discuss.

Joining us now, David Wohl, a Trump supporter and attorney. And Nomiki Konst is host of "The Filter" on SiriusXM Progress.

So, David, what do you make of this entire situation? I mean everybody kind of looked at this incident like what happen. But it did appear that there was some premeditation with that tweet that was sent out by the man's partner saying that he'd spotted Ivanka Trump and he was chasing after her.

DAVID WOHL, ATTORNEY: Right. He says he spotted her in terminal five which creates a security risk in and of itself. And then there was premeditation harassment which makes it worst. And let's not kid ourselves. If they had done this to Barack Obama's children they would not have been put on another flight as JetBlue did. They would have been put on the no-fly list. This is the type of juvenile behavior.

This irrational behavior that's exploded among the left since Mr. Trump's huge victory. It needs to stop. If you have a problem with Mr. Trump, tweet him, send him an e-mail, do not attack his family because you'll end up paying the price. And I think this is going to go further than just this as being booted off of the flight. It has to. This is really bad news.

SMITH: If you're like me, Nomiki, you were saying, where is the security?  First of all, everybody was shocked she was on a commercial airliner --

NOMIKI KONST, HOST, "THE FILTER" ON SIRIUSXM PROGRESS: Yes.

SMITH: -- and sitting coach with her family. But then, where is the security in all of this?

KONST: Right.

SMITH: Secret Service was present. When contacted they referred inquiries to JetBlue about all that. But they did say Ivanka Trump has full Secret Service protection as the daughter of the President-elect. But still for this man to berate her, a mother in front of her three young children.

KONST: Listen, I commend Ivanka Trump and Jared Kushner for living a civilian lifestyle, trying to live a normal life amidst the chaos of going into a Trump presidency. But she's not a simple civilian. She's not just the daughter of the president. This isn't Sasha Malia who are under-aged in the presidency living in the White House. This is somebody who is trying to be a civilian who claims that she's just the daughter of Donald Trump but also shows up to high level meetings with dignitaries around the world and is very involved in decision making --

SMITH: Okay. Well, she does not have any official role --

WOHL: So that justifies her being attacked on an airplane with her husband and their children. And when this clown has his child with him, he attacks as well. I mean, nothing justifies it. And nothing can allow this to happen in the future.

KONST: Okay. But --

(CROSSTALK)

SMITH: Nomiki, let me get this in here because your same sentiment was echoed in a piece in "Vogue" today.

KONST: Uh-hm.

SMITH: They said this is just the latest in backlash against Ivanka who has repeatedly declared herself just a daughter, while simultaneously sitting in on her father's meetings and phone calls. Meeting with foreign leaders. I go back to you again. I'm sorry. So that gives this guy the right to berate her in front of her family while she's trying to go on a vacation? Is that what they should expect and are you okay with that?

KONST: I'm not okay with anybody being disrespectful of our presidency, no matter who that president is and I say that as a Democrat. I think people need to be very careful and cautious with how they articulate their feelings. But let's be clear, this person was not violent. They screamed.  They were like every other New Yorker who screams at people on the streets.  I mean, President Bush had a shoe thrown at him. This is very normal.  Let's not blow this out of proportion. Does that mean it's right? No.

WOHL: Do you know something? I give Jared Kushner -- I give Jared tremendous props for being restrained and holding himself back. Because I'll tell you something right now, had that been my wife, I don't think I might have done that. You're on a cylinder going seven miles into the air and who knows what's going to happen if those clowns are allowed to stay on the plane but when they were removed --

KONST: I don't condone it.

(CROSSTALK)

Let's make it clear. I don't condone it.

SMITH: We've got that.

KONST: Let's not blow it out of proportion. He yelled at her.

SMITH: Let me just tell you. An eyewitness who said he was sitting 15 inches from Ivanka spoke to NBC earlier and he said he completely agreed with getting this man thrown off of the plane. He said he wasn't shouting but he was physically shaking when he approached her. And he said that she handled the situation calmly, with class. It was security that ultimately made the call to remove him.

KONST: Sure.

SMITH: He even claimed that his --

WOHL: Classic Trump derangement syndrome, Sandra. Classic Trump derangement syndrome. It's spreading and it needs to be handled.

KONST: I think you're blowing it out of proportion. I mean, this is going to happen with any president. Let's be clear here. You're pitting one side against another and you're making this guy the representative of the entire --

WOHL: If you have a problem with the President, e-mail him or tweet him.  He loves twitter. Do not attack his daughter.

(CROSSTALK)

KONST: He loves encouraging, you know, extremism on Twitter. We all know that.

SMITH: Thank you. Thank you to both of you for sharing your thoughts.  Now everybody at home can have it. Their thoughts on that situation.

All right. Also breaking tonight, President-elect Trump announcing his pick for White House Press Secretary. It was long awaited and now RNC chief strategist and Trump transition team member Sean Spicer has been chosen and he's talking first to "The Kelly File" about his new position in the Trump administration.

(BEGIN VIDEO CLIP)

SMITH: Sean Spicer joins me now for a "Kelly File" exclusive.  Congratulations sir.

SEAN SPICER, RNC CHIEF STRATEGIST: Thank you very much.

SMITH: So, how did you find out about the gig by the way?

SPICER: Mr. Trump called and said, congratulations. And I told him I was honored. And it's an unbelievably humbling moment to think of some of the people that have held this position and what it does. It's an opportunity to speak on behalf of this country, on behalf of the next president of the United States and deliver them the messages and news that were this country is going and what it's doing. So, it is humbling to say the least, to realize some of the folks who have had this job and the footsteps that I'm going to walk in.

SMITH: Considering Donald Trump ran anything but a conventional campaign.

SPICER: Right.

SMITH: Everyone is wondering what is your job as press secretary going to look like, considering all of the criticism we have seen from Donald Trump of the media, various outlets, individual reporters tweeting at them. What does your job look like?

SPICER: Well, I think there's a difference between calling people out and understanding the role that the press plays in a free society. The press has a right to go out and write stories. And communicate things. But I think similarly to what Donald Trump has proven both as a candidate and now as a President-elect, is that when people are wrong, he's going to hold them accountable and he's going to correct the record. So, it's going to be -- he's used twitter more effectively and social media between twitter, Facebook and Instagram.

SMITH: Do you like that? Will he continue that?

SPICER: It's not a question of like. Because it is. It's unique. He has a direct pipeline to the American people to talk to them in a way that no one has done before. I think it's fascinating. It's absolutely fascinating and it makes every day, every hour just unbelievable because you know that you're having that conversation with the American people and they can have it back with him. And he's not having to put everything through the filter of the mainstream media.

SMITH: Well, you don't have to look far to see your name in headlines all over the place right now. Washington Post, headline today, Trump chooses Sean Spicer for press secretary. Round out communications staff. When you dig into the article, Sean, it says filling what is likely to be a challenging position given Trump's sometimes hostile relationship with the media and his propensity to bypass staff to communicate directly with the public on twitter. That is some of the criticism that we are --

SPICER: Yes. I don't know if it's a criticism. Look, he's the President of the United States. We answer to him. He doesn't answer to us. And I think what we do, we serve him and the American people and try to get the word out in terms of the communications staff. But he has a direct pipeline to them and if he wants to use twitter and any other social platform to speak to the American people directly, that's what he should do. He's the president. It's not our job to tell him what to do. It's to serve him and to help amplify them.

SMITH: All right. So, let's talk about how you role might look different than previous press secretaries. One of them works right here at FOX News, Dana Perino. But you had hinted with Megyn Kelly on this program last week maybe daily press briefings are not needed. Are you going to do away with those?

SPICER: Well, I think what we need to do and it's the same thing that Donald Trump is looking at, at everything in government is, can we do things better? Can we be more effective? Can we put the American people first in some of these? So maybe it's -- you saw how effective they used Facebook live. Are there things that we can do -- it's not a question of getting rid of certain things. Maybe we add certain things. But I think that we want to be innovative, entrepreneurial as we look at all of these positions and all of these government agencies.

SMITH: So, will there be daily press briefings?

SPICER: I believe that we'll have daily briefings. But maybe we added element to them. Maybe not everything is on camera. Maybe we bring more people into the process? There is an amazing group of folks. You know, he named today Kellyanne Conway, Jason Miller --

SMITH: What will her role be, by the way, she is appointed counselor to the president, she's the highest ranking woman in Trump's White House.

SPICER: Right. And she was also the first female ever to win a presidential election. So, Kellyanne is someone who shattered the glass ceiling and continues to do it. But she's been someone that the President trust to give her advice on strategy and messaging and she will continue to play that senior role of counseling him, giving him ideas, talking about how to shape an agenda.

SMITH: All right. Let me talk to you about a couple of things in the news right now. Ivanka Trump and this JetBlue plane incident. What do you know about it?

SPICER: Clearly there was somebody who was trying to act out of line and I think JetBlue acted accordingly and took that individual away. They went on twitter and made it very clear that their intention was to, quote, "harass her and her family." That's inappropriate. No matter what your feelings are towards anyone in this country, to do that to a woman who was on there with her children, I don't care what your political background is or what you thoughts are, that's not the way we as Americans need to act.

SMITH: Drain the swamp. Newt Gingrich said hinted that maybe that messaging was going away with the President.

SPICER: I think the President made it very clear on twitter today, it's going to keep going.

SMITH: He did. Everybody is kind of wondering where the former speaker was coming with those words but he has since retracted that --

SPICER: Right.

SMITH: -- and he put out a message on --

(CROSSTALK)

SPICER: One of the things that I think people have to understand is that Donald Trump is the ultimate decider and he will tell you what he believes and how something is going to get done. Other people don't tell him what he needs to do. And I think we've seen that time and time again. And look, when you look at the Lockheed story today, we've had the F-35, the Boeing story with Air Force One. He isn't even president. We're 29 days out. He's gotten results on Carrier, he's brought costs down on government programs. He is going to get things done in a way that people have never seen. The change that's going to come to Washington I think is going to send shockwaves through the system.

SMITH: All right. Seems like every pick that Donald Trump has made his critics have dug up something on them. Are they going to find anything on Sean Spicer?

SPICER: I hope not. I hope not.

SMITH: Is anything out there that we should know about?

SPICER: I hope not. I think I have done a pretty good job but I hope that every day that I serve in this job. I make Mr. Trump proud, Reince Priebus proud, Governor Pence proud and more importantly the American people. I think that what he's asked to every one of us is to make this country proud of us, proud of the accomplishments that he is going to have as president and make the country great again.

SMITH: Sean, thanks for being here. Congratulations.

SPICER: Thank you.

(END VIDEO CLIP)

SMITH: Still to come, new reports, Eric Trump is responding to criticism.

And the controversies that plagued the Clinton Foundation by halting fundraising for his own charity. Trump transition team insider Anthony Scaramucci is here on that.

And we've got some stunning new video from the Berlin terror attack as the massive manhunt for the suspect ramps up.

Plus, one woman's angry tirade going viral as some call for criminal charges. The lawyers Mark Eiglarsh and Eric Guster are here on that.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: Go back to wherever the (bleep) you come from, lady.

UNIDENTIFIED MALE: Ma'am, watch your language.

UNIDENTIFIED FEMALE: Hey, tell them to go back where they belong. They can't act like this. You know, they come here to live, then act like everybody else.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

SMITH: Developing tonight, amid allegations of pay for play, Eric Trump will stop fundraising for his own foundation. The move is being applauded by former White House ethics lawyers but questioned by supporters who want to see the charity work continue. In moments, Trump transition team insider Anthony Scaramucci will be here on that.

But first, our chief Washington correspondent James Rosen has the latest on Eric Trump's decision. James?

JAMES ROSEN, FOX NEWS CHIEF WASHINGTON CORRESPONDENT: Sandra, good evening. Apparently it goes even farther according to the published reports, Eric Trump's announcement that the charitable foundation bearing his name is suspending operation. And with that announcement, the President-elect's son appears to have gone further than he did the day before when he announced that he personally will stop soliciting charitable contributions.

The Eric Trump Foundation has raised close to $8 million to help the cancer patients at St. Jude's Children's Research Hospital in Memphis. That step in turn followed the cancellation of an online auction to benefit St. Jude in which bidders have reached $72,000 to have coffee with Eric's sister, Ivanka Trump. Also this week, the family withdrew its name from a fundraising appeal promising million dollar donors that could go on a hunting trip with Eric and Donald Trump, Jr. and get a photo with their father. Kellyanne Conway who will serve as a counselor to the President bristled when a CNN anchor likened the Trump children's charities to the Clinton Foundation.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: You're now basically saying the same thing. Eric Trump has great work at his foundation --

KELLYANNE CONWAY, COUNSELOR TO PRESIDENT-ELECT TRUMP: No, I am not.

UNIDENTIFIED MALE: -- and paying a lot of money to hang out with the President is okay.

CONWAY: When you let me know that Eric Trump's Foundation took $100 million or so from Saudi Arabia which doesn't treat women and girls the way we treat women and girls here, then we'll talk.

(END VIDEO CLIP)

ROSEN: A December 15th press conference in which the President-elect was to detail his efforts to separate the White House from his family's business empire and charities was abruptly postponed. Trump's aide say nonetheless his divestiture plans will be in place and be made public before he is sworn in -- Sandra.

SMITH: All right. James Rosen, thank you.

Joining me now, Anthony Scaramucci, he is an executive member of President- elect Trump Transition Team. He loves to come in and give us the real story. So, what is going on here? Eric Trump had a charity in his name.  He's going to stop raising funds for that charity or the charity is going to shut down all together? What's happening?

ANTHONY SCARAMUCCI, EXECUTIVE COMMITTEE, TRUMP TRANSITION TEAM: Well, the charity is going to shut down all together so it's a sad day for St. Jude Medical Center, it's a sad day for charitable giving in that way. And so, unfortunately what's happening in our society now is that we're very polarized politically and we've got accusations and mudslinging going on both sides. And so, Eric is doing the appropriate thing here in getting ahead of this thing proactively before his father becomes the president and shutting it down.

SMITH: But let me stop you there. But some people are going to say that he's not actually getting ahead of it, that there may have actually been something more there.

SCARAMUCCI: I watched Jim's report and so I really don't think there's anything more there. I think what happened is pre-presidency, come on a bear hunt with me and my brother, pre-presidency --

SMITH: Have coffee with Ivanka.

SCARAMUCCI: Yes. Have coffee with my sister, who wouldn't want to have coffee with Ivanka Trump.

SMITH: So, that's really what raised the scrutiny of all of this.

SCARAMUCCI: Yes. But all of that stuff was happening, totally acceptable with Donald J. Trump as a business person. But now that he's going to be in the American presidency, the legal team is coming in there and really has to ring fence and shut down these efforts. And so for me, Sandra and you and I have known each other a long time. It is a sad day because Eric Trump has been at the bedside of children that have died from childhood cancer.

Eric Trump has also participated in the miracles that we've seen where children have survived at St. Jude because of the money that's been put there to help those children. And so now it's going to stop and it's going to stop for those children because of the politicalization (ph) of the politicization or everyone will say it of the system. And so, it's a sad day.

SMITH: Okay. And we have heard from his friends, people close to him saying it pains him to do this. He's been raising money --

SCARAMUCCI: He's a phenomenal guy. I told my own children may they have the arrogance of the Trump children, which is zero arrogance.

SMITH: Okay. What did you make to the comparison, the comparison to the Clinton Foundation?

SCARAMUCCI: Yes. It's unfair. We all know it's unfair. And I don't want to channel Kellyanne Conway but you have to think about the Clinton Foundation, he had 94 percent of it raised, it didn't go anywhere, six percent of it went out. He did a 98.2 percent drive through to the St. Jude Medical Center.

SMITH: And by the way, so we're talking about the Eric Trump Foundation.

SCARAMUCCI: Yes, exactly.

SMITH: What about the Trump Foundation itself? Where does that stand?

SCARAMUCCI: You know, I don't know super amounts about the Trump Foundation but my guess is knowing Don McGann as well as I do and knowing the President-elect as well as I do, they want to give the appearance of no impropriety whatsoever. So when that press release comes out and Mr. Trump is standing at the podium answering these intensive questions from the mainstream media, you're going to get all of those answers. And I think people are going to be very happy with this family. It's a world class group of people.

SMITH: All right. So, this is probably breaking news to you because the President-elect has been tweeting away and he just tweeted this a few moments ago, "The so-called A-list celebrities are all wanting tixs to the inauguration," he says. "But look what they did for Hillary. Nothing. I want the people." That just happened.

SCARAMUCCI: You know what's great about these tweets? You know when it's really him tweeting versus like some communications effort by our communications team. So my guess is he really tweeted that.

SMITH: I talked to Sean Spicer as you just saw earlier and yes, he does most of the tweeting.

SCARAMUCCI: I think it's one of the most effective tools ever. He's coming right over the top of the mainstream media directly to the American people. And also the American people know when he's tweaking the media.  And so, when he says things and I've said this before, Kellyanne has said it. He says things symbolically that really the supporters love and the mainstream media takes it literally and they go crazy.

SMITH: I'm trying to figure out who that might be?

SCARAMUCCI: I don't know. Well, one of them was probably Andrea Bocelli, right? You know? I think there's a big backlash, I really think that the message for everybody is unification. He's goings to be our president and he's doing a phenomenal job of trying to bring the country together. And so, let's go and enjoy one of the greatest historical celebrations for the United States. A peaceful transfer of power of the most powerful position in the world, Sandra. How about that?

SMITH: Anthony Scaramucci, always good to have you.

SCARAMUCCI: Merry Christmas, Happy Hanukah --

SMITH: Yes. To you as well. Happy Hanukah!

SCARAMUCCI: Kwanza, Happy Kwanza!

SMITH: Merry, merry, happy, happy. Thanks.

Coming up, President Obama with some words of advice to the President-elect regarding executive powers that has critics calling foul.

And brand-new video of that terror attack in Berlin. And as we learn, the suspect in this week's terror attack in Berlin was known to authorities in two European nations and the U.S.

Former House Intel Chair Pete Hoekstra and former CIA Officer Buck Sexton are here next.

(COMMERCIAL BREAK)

SMITH: Breaking tonight, stunning new video of the apparent terror attack in Germany this week showing the very first moments of the horrifying scene. You can see a truck on the left of your screen barreling through the entrance of a Christmas market. Before some clearly terrified shoppers start running in the opposite direction just a few seconds later. This comes as we learn that investigators believe Anis Amri is the perpetrator of the attack. And he was no stranger to authorities abroad and even in the United States.

Senior foreign affairs correspondent Greg Palkot has more from Berlin.

GREG PALKOT, FOX NEWS SENIOR FOREIGN AFFAIRS CORRESPONDENT: Sandra, we are at the Christmas market in Berlin that was the scene Monday night of that terrible truck attack which left 12 dead and 50 injured. This as the investigation into the attack goes into high gear. And that means the search for 24-year-old Tunisian man Anis Amri. German Chancellor Angela Merkel on Thursday saying that officials think they're close to nabbing him. They found his fingerprints on the cab of the truck.

A local media says, the police are still searching for clues. Reports also say that that suspect was very much on the German terror radar over the past several months, arrested or detained a few times, monitored offering to commit attack within Germany. And reportedly he was on the U.S. radar too. He said to be on the no-fly terror list that officials said to have monitored him talking to Islamists figures as well as checking out terror websites.

Now, Sandra it is dark here now. In fact this market is closed. But earlier today we took a look at the market and talked to some people. Here is what we saw. Here is what we heard.

(BEGIN VIDEO CLIP)

PALKOT: It was here Monday night that a place of joy was turned into a scene of terror. A truck weighing something like 25 tons came barreling into this Christmas market here in Berlin, smashing into people, killing and injuring, hitting stalls, decorations, ending up there about 250 feet down the way. Now three days later this market is open again, a sign of courage, a sign of defines.

UNIDENTIFIED MALE: Having it open right now, not just having feelings but also for me it's a strong signal, it is a sign.

PALKOT: A sign of what?

UNIDENTIFIED MALE: That we are back on the road.

UNIDENTIFIED FEMALE: Terrorists that we stay strong.

(END VIDEO CLIP)

PALKOT: The U.S. Embassy tells Fox News that two Americans were hurt in the attack. One has been released from the hospital another is still in.  We are told that there are 12 in hospitals right now and all of them are in serious condition. That is the latest from Berlin, back to you, Sandra.

SMITH: Thanks so much, Greg. Tonight's headlines are causing some critics to bounce on the President-Elect's proposed ban on immigration from some Muslim majority countries, after he suggested yesterday that the situation in Berlin proves that he is quote 100 percent correct on these issue.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Has it caused you to rethink reevaluate your plans to create a Muslim registry or ban Muslim immigration to the United States?

PRESIDENT ELECT DONALD TRUMP: You know my plans all along. I've been proven to be right 100 percent correct. What's happening is disgraceful.

(END VIDEO CLIP)

SMITH: Pete Hoekstra is a former House Intelligence Committee Chairman and former Trump campaign National Security Adviser, Buck Sexton, a former CIA officer and host of "The Buck Sexton" show on the Blaze. Buck let's start with you first, clearly this attack exposed problems with Germany's immigration system. What have we learned in the wake of this horrific attack?

BUCK SEXTON, BUCK SEXTON SHOW HOST: What we've seen is that there are a number of points at which this individual should have been detained and sent out of the country. The fact that you would have someone who is known to fraternize with jihadists, who has been caught on surveillance tapes talking about perhaps procuring weapons, was clearly a security risk, was known to be a security risk, but they couldn't deport him from the country, because he lacked a passport from his country of origin just goes to show how inept, quite honestly the German immigration authorities the security services failure.

I know that they are overrun right now in Germany in part because of the Merkel policy of open doors to much of the refugee population come in from Syria and other places in the Muslim world. Because of that they're completely inundated with surveillance needs for known extremists all across the country. This is a security burden that they can't really handle, but in this case we're talking about somebody who made a lot of mistakes, who popped up on the radar. They should have detained him and kicked him out of the country or found a way to keep him in prison. They just dropped the ball on both immigration and security.

SMITH: Congressman I think that is what trouble so many when you look at this attack and you look at all the details coming out of it about him, about where he came from, what he is done, what we knew about this man and how he slipped through the cracks and how he was able to carry out such a horrible attack.

PETE HOEKSTRA, FORMER CONGRESSMAN: What it really does is it highlights how ineffective the west, the Europeans and the United States have been in fighting this threat from radical Islam over the last number of years.  We've got five failed states in the Middle East. What does that mean? It means that terrorists have enough of an influence in there to make sure that the central government doesn't control much of the nation. They include Libya, Iraq, Syria and Yemen. We have 10 million refugees are displaced people in that part of the world. A million of them have gone into Europe, many of them into Germany. They haven't had the vetting.  This is why Donald Trump's proposals make so much sense.

What is he proposing? We're going to have secure borders. We're going to make sure that we control who comes into the country. And for people who come from terrorists regions where the governments have failed, where we don't have proper documentation, yes we are going to have extreme vetting.  So hopefully we don't have what they saw in Germany, an individual who they can't send back to their home country, because he got into Germany and didn't even have a passport. It shows you how hollow our national security policy has been.

SMITH: Meanwhile Buck, as we approach Christmas and New Year's and Inauguration Day, we wonder if what we saw there, if it's coming here or more of it based on recent attacks that we have seen. It makes you wonder what the terror threat is today in the United States.

SEXTON: They're responding specifically here at the Berlin attack and others that it should be pointed out that have been thwarted by German authorities, or just a plot in Australia that has been reported but this is what the Islamic state wants. They want individuals who have radicalized on their own to decide to use everyday items, knives, vehicles, trucks, whatever they can to just cause mass casualty attacks in the west, against perceived enemies of Islam in America and around the world. And this is going to continue on unfortunately. It's very difficult to stop these kinds of attacks which are why ISIS is pushing for them. And we're in a heightened threat season right now, because they've also been saying that they want to hit us during the holidays. There are more congregations of people outside. So an enormous burden on security services in Germany, in Europe and here in this country. We have to hope that we get it right every time or else there are going to be more like this.

SMITH: All right Buck, Congressman, thanks for joining us tonight.

SEXTON: Thank you.

HOEKSTRA: All right thank you.

SMITH: All right coming up, breaking new developments on what's being called a turning point on the humanitarian crisis in Syria.

Plus if President Obama having a change of heart on some of his most controversial decisions in the White House, wait until you hear his unusual advice to Donald Trump. Then we'll discuss it with Marc Thiessen and Jessica Ehrlich.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Should President-Elect Trump once he is inaugurated use his executive powers in the same way that you have?

(END VIDEO CLIP)

(COMMERCIAL BREAK)

SMITH: Breaking tonight, new development on the heartbreaking humanitarian crisis in Syria. After four long years a major turning point as the government regains control of war torn Aleppo. John Huddy has the latest from our gruesome bureau.

JOHN HUDDY, FOX NEWS FOREIGN CORRESPONDENT: Sandra, serious military said that its victory in Aleppo is a quote strategic transformation and a turning point in the war on terrorism. Now the Syrian government announced earlier this evening it had retaken full control of Aleppo after the remaining rebel fighters and their family left the city, several thousands in all. Heavy snow hampered the evacuation effort. A massive undertaking after Syria launched the offensive to retake the city in November backed by Russian air strikes. And since then we've seen the haunting images of the dead, men, women and children and the stories of survival on the chaos of war.

Syrian President Bashar al Assad said that the victory in Aleppo is not only for Syria but for all countries fighting terrorism, especially Russia and Iran. Russian, Iranian and Turkish officials plan to continue talks aim at ending Syria's four years civil war. But Russian officials say that removal of Bashar al Assad from power will not be part of the discussion.  Hence the reason U.S. officials, including Secretary of State John Kerry where not invited to participate in the talks. So while the battle for Aleppo is over, it does not mark the end of Syrian civil war as the rebel commanders vow to continue fighting Bashar al Assad's regime, Sandra.

SMITH: All right thanks John. Developing tonight, President Obama raising eyebrows for some advice he has from President-Elect Trump on the use of executive power. Watch this.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Should President-Elect Trump once he is inaugurated use his executive powers in the same way that you have?

PRESIDENT BARACK OBAMA: I think that he is entirely within his lawful power to do so. Keep in mind, though, that my strong preference has always been to legislate when I can get legislation done.  So my suggestion to the President-Elect is going through the legislative process is always better in part because it's harder to undo.

(END VIDEO CLIP)

SMITH: As you might imagine, many critics are crying foul as Mr. Obama has made it no secret of his love for his pen and phone. Listen to this.

(BEGIN VIDEO CLIP)

OBAMA: I've told my administration to keep looking every single day for actions we can take without congress. I've got a pen and I've got a phone and I can use that pen to sign executive orders and take executive action administrative actions that move the ball forward. I've got a pen to talk executive actions where congress won't. Where congress isn't acting, I'll act on my own. I have got a pen and I got a phone. And that is all I need.

(END VIDEO CLIP)

SMITH: Marc Thiessen is a former Chief of Speech writer for President George W. Bush and Fox News contributor. Jessica Ehrlich is a Democratic strategist. Marc I will start with you first, you've got a big smile on your face. A beautiful montage put together by the production staff of this show. I mean he said it and then look what he did.

MARC THIESSEN, AMERICAN ENTERPRISING SCHOLAR AND FOX NEWS CONTRIBUTOR:  It's quite remarkable to say what he said in that interview. And the thing about his pen and his phone is that he is still using it. The day before he gave that advice to Donald Trump in that interview, he used his pen and his phone, took executive action to permanently ban off-shore drilling in hundreds of millions of acres of the Arctic Ocean in the Atlantic coast.  He took a 1950'2 law written 75 years ago to expressly overturn the intent of congress and the intent of the American people in this election. He'll telling Donald Trump not to use his pen and his phone? Well guess what is going to happen, Donald Trump is going to use his pen and his phone to undo all of the things that Barack Obama used his pen and phone to impose against the will of the American people.

SMITH: All right Jessica after what we just saw and heard. It is hard to imagine that President Obama has a leg to stand on offering this type of advice to the President-Elect.

JESSICA EHRLICH, DEMOCRATIC STRATEGIST: Well, I actually disagree. I think he has every leg to stand on, because what he is saying is basically like do as I say, not as I did, which is actually very good advice in this situation, particularly given the fact that Donald Trump is starting with the majority in the house and the senate which is also how President Obama started. And then things fell apart and he lost that.

Not only did he lose it, but congress worked actively against every single measure that he had. And every single measure that he put forward. And Donald Trump right now is starting with not only what President Obama felt that he had in both 2008 and 2012 which is a mandate it from the people.  And I think President-Elect Trump feels the same way that he has a mandate from the people that he is going forward and going to execute that, he has the majority in the senate and the house and now is the time to work on that. And I think what the president is saying is don't lose that without specifically saying, you know, make sure you hold on to your majority and get the legislation done and try to do as much as you can, because otherwise that is what we'll end up seeing from Donald Trump is having to do the same actions over and over if things fall apart for him.

SMITH: Marc, you make an interesting point that it makes it a lot easier to undo a lot of the things that he did do with his pen and phone when you do go around congress.

THIESSEN: Absolutely. And look, right now as we speak, Obama administrations officials are burning the midnight oil tonight and every night going forward between now and January 20th as to trying to impose as many regulations and executive actions as they can in order to have the hands of Donald Trump. So, of course he is going to use his pen and phone to do his best to untangle the mess they've tried to wrap him in. But it is not just executive action versus congressional action. One of Obama's signature legislative achievements is Obamacare. That is going to get repealed as well. That it is not he did go through congress to pass that, but he have the House of the Senate, he had the majority. So he went through and he imposed that over the objections of the Republicans. If you want to be successful and if you want your legacy to last, you have to get by partisan by it, after reach out to the other party and bring them in so that they don't come in and undo your work, when they come in and get the power to do it.

SMITH: And Jessica, it does make you wonder when we saw the sitting president offer that interview and offer that advice to the President- Elect, it makes you wonder the next few years how much is the President- Elect going to hear from President Obama? Will he be pretty vocal about his actions?

EHRLICH: I can't really speculate on that. But I will say, you know, President-Elect Trump has said repeatedly that President Obama has really been very open and helpful to him and been wonderful during the transition.  I think that will continue. I have absolutely no idea what President Obama will do going forward or what his role will be on a national or an international level on a local level. I really can't speculate to that.

But I think Marc makes an amazing point in that which I agree with completely. Whatever it is, whether it be Obamacare, I think that is actually how everything sort of fell apart for Obama, whether he'll say it or not. He ended up losing control of the house and the senate and that is what leads to having that -- where you have to do executive orders to get what you feel the people elected you to do, done. Donald Trump is not starting in that position. He is starting with the position where he is got what he feels is his mandate from the people who voted for him.

SMITH: Ok.

EHRLICH: He has the house and the senate. He now has the opportunity to have an incredible beginning of the next several years.

SMITH: All right Jessica, Marc, thank you.

THIESSEN: Thanks.

SMITH: New video of one woman's angry tirade going viral as some call for criminal charges. Mark Eiglarsh and Eric Guster are here on that next.

(COMMERCIAL BREAK)

SMITH: Developing tonight, a vile and racist attack caught on camera in a Kentucky shopping mall. Watch.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: Go back to wherever the (BEEP) you come from lady.

UNIDENTIFIED FEMALE: Ma'am, please watch your language.

UNIDENTIFIED FEMALE: Tell them to go back where they belong. They can't act like -- you know they come here to live, then act like everybody else.  Get in the back of the line like everybody else does and be somebody. And that is the way I look at it. Y'all are nobodies. Just because you come from another country, that don't make you nobody. You're nobody as far as I'm concerned. Probably on welfare, the taxpayers probably paid for all of that stuff. I'm sorry but that is the way I feel. That is okay. Speak English, you're in America. If you don't know it, learn it.

(END VIDEO CLIP)

SMITH: Now some are calling for that angry woman to face charges. But a local attorney says no one has come forward to make a complaint. Here now Mark Eiglarsh is a Criminal Defense Attorney and Eric Guster is an Attorney in a Municipal Judge, who sees this type of criminal cases all the time.  Well Eric, you may not see this one, because nobody has come forward.

ERIC GUSTER, ATTORNEY AND LEGAL ANALYST: In the case like this, you have to have a complainant. You have to have someone to sign a warrant to say I went to bring charges against this person, because any type of harassment charge such as this case would be a personal charge for the victim has to come and complain. It's a lot different than a murder charge or something elsewhere just a state can bring a charge. So we are not going to see this one unless the victim comes forward.

SMITH: Mark, what did you make when you saw this? I mean this happened at a JCPenney store. Obviously you saw the video. It is a white woman, two Hispanic women. One cut in line. I mean this kind of thing happened at the holidays. People are tired, they are hungry, and I mean people get upset. But there was a racist angry tirade.

MARK EIGLARSH, CRIMINIAL DEFENSE ATTORNEY: Yes. Sandra, I found her speech as gross as what I've allowed to grow on my face, but as outrageous and offensive as we all find it to be. Let's make one thing clear, I disagree with what I was just said. It's not a criminal case. It is constitutional protected speech as outrageous and offensive as it is. The first amendment affords us wide latitude to spew that kind of ugliness and hatred, believe it or not.

SMITH: Ok. What rights though, Eric does the mall have in all of this, because they have responded, JCPenney has responded, they said that they would love to find the victims of the tirade, by the way, reimburse them for their purchase and apologize for their experience.

GUSTER: That would be good.

SMITH: As far as the mall is concerned, once they identify the person, they will be banned from the mall. Do they have the right to do that?

GUSTER: The mall has a right to do that. But first, Mark is incorrect.  Harassment is a criminal charge. That is abuse of language which is this is two or three minutes of abusive language. Secondly as remarks to the mall, the mall is a public place, but it's privately owned. The mall has the right to ban anyone for any type of abuse. Any type of offensive language and it is actually in their code of conduct that is posted throughout their mall. So they will impose, they will tell this lady, that she cannot enter the mall ever again.

SMITH: Mark?

EIGLARSH: She is right about the mall part, it's a private place, and they can keep her out. Issue a trespass warning. He is right on that. He is dead wrong on whether this is a criminal charge merely because people are offended, the Supreme Court has made it very clear, Skoki versus Illinois, the list of cases going on, we learned them in law school. You can be outrageous and offensive. I wouldn't mind if she went to jail.

GUSTER: But you cannot use abusive language. You can't use abusive language.

(CROSSTALK)

EIGLARSH: But I would defend her.

SMITH: All right, Eric, so Eric listen, if somebody who was present during that confrontation, if they're listening to this, what do you do if you see something like this?

GUSTER: This type of situation is number one, it's great that someone videoed it. Secondly, you have to let the D.A. know that you are a potential witness, because this person may need extra witnesses to talk about the situation, to give the scope of it, just in case it goes to trial, because this is harassment.

EIGLARSH: The Supreme Court...

GUSTER: You cannot verbally harass anyone without expectations of arrest.

SMITH: Five seconds left.

EIGLARSH: It's not a criminal offense. It is outrageous it is morally wrong, but legally and unfortunately it is permissible.

SMITH: We got to leave it right there. Thanks to both of you. We'll be right back.

(COMMERCIAL BREAK)

SMITH: Make sure you "Settle for More" this holiday season and buy Megyn's new New York Times bestselling book. It's sure to inspire you to make 2017 the best year yet. And it will be. Jen says, she took every experience and learned from them. She is a role model. Michael Nixon says life changing book for girls and women of all ages and Martyred Black says I was inspired. Her story has changed me and encouraged me to be more supportive of the women in my life and more honest with myself about what I want my life to look like.

So buy your copy of "Settle for More" right now. It makes the perfect gift for anyone on your Christmas list. Last minute shopper's out there, it's available now on Amazon or anywhere books are sold.

Thank you so much for joining us tonight. I'm Sandra Smith and this is "The Kelly File."

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