Family Research Council defends Kim Davis; Carson fires back at Trump

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Family Research Council defends Kim Davis

Tony Perkins weighs in on the religious freedom fight on 'The Kelly File'

This is a rush transcript from "The Kelly File," September 8, 2015. This copy may not be in its final form and may be updated.

MEGYN KELLY, HOST: Breaking tonight, new drama in a fight over a religious liberty that is churning through the 2016 race for the White House. As a small town clerk suggests she may defy the deal that got her released from jail just a few hours ago.

Welcome to "The Kelly File," everyone. I'm Megyn Kelly. Hours ago a judge unexpectedly ordered the release of Kim Davis, a county clerk in Kentucky.  She left the lockup flanked by her lawyer and presidential candidate Mike Huckabee. Five days ago a federal judge ordered Davis behind bars after she refused to issue marriage licenses to same-sex couples. Today thousands of supporters turned out at the Carter County Detention Center where Governor Huckabee brought Mrs. Davis to the stage and for the first time in days we heard directly from the woman at the heart of a new political firestorm.

(BEGIN VIDEO CLIP)

MIKE HUCKABEE, R-2016 PRESIDENTIAL CANDIDATE: Maybe you would like to personally express your thanks to the person who had the courage to cause a lot of people to start standing up, a person whose courage exceeds that of 99.9 percent of the politicians in this country and sadly exceeds a bunch of even the pastors of this country. But I believe that her act is going to wake up the politicians, the pastors and the people.

Would you please help me welcome to the stage Kim Davis!

(CHEERS AND APPLAUSE)

("SURVIVOR" PLAYING)

(CHEERS AND APPLAUSE)

(CRYING)

KIM DAVIS, ROWAN COUNTY CLERK: Thank you all so much. I love you all so very much.

(CHEERS AND APPLAUSE)

(CROWD CHANTING)

Kim Davis! Kim Davis! Kim Davis! Kim Davis! Kim Davis!

DAVIS: I just want to give God the glory. His people have rallied. And you are a strong people!

(CHEERS AND APPLAUSE)

We serve a living God who knows exactly where each and every one of us is at. Just keep on pressing. Don't let down because he is here. He is worthy! I love you guys. Thank you so much.

(CHEERS AND APPLAUSE)

(END VIDEO CLIP)

KELLY: Joining us tonight on this new fight between faith and the Supreme Court, 2016 presidential candidate Ben Carson, Family Research Council President Tony Perkins who was with Mrs. Davis in Kentucky today. And nationally syndicated radio host Richard Fowler. We begin tonight with Richard.

Richard, Eugene Volokh who is one of the most respected First Amendment scholars in the country came out today and said, if Muslim truck drivers can get an accommodation that allows them to refuse to transport alcohol as the Obama administration is arguing they must have. Then Kim Davis gets an accommodation when it comes to issuing marriage licenses. What say you?

RICHARD FOWLER, NATIONALLY SYNDICATED RADIO SHOW HOST: I disagree with that. And here's why, the Muslim truck driver is a private entity. And under the law, they would have some sort of religious -- they would have religious exemption.

KELLY: All right. Let me just stop you there. Let me just stop you there. Because let's just clear that up. The law actually is very clear.  I refer you to Title 7 of the civil rights act. Under title 7 of the civil rights act, both public and private employers have a duty to exempt religious employees from generally applicable work rules so long as it won't create an undue hardship. It applies to public and private employers. Go ahead.

FOWLER: But here is the thing. As a public official who is acting as a public agent of the government, she cannot put her religious beliefs above somebody else's constitutional right. And the Supreme Court ruled that gay and lesbian couples indeed have the right to get married meaning because of equal protection under the law. Meaning that by her using her sort of exposing her religion refusing to give those licenses out, she is violating their constitutional right to be married.

KELLY: What about her right not to violate her sincerely held religious belief if she says, I need an accommodation, similar to the ones they provided in North Carolina and other states, and then my deputies can do what they want to do.

FOWLER: But listen, the judge bonding has ruled on this already indicating that she was in contempt for not issuing licenses. If she has a problem with that, then she can get another job. Chris Christie said it. Jeb Bush has said it.

KELLY: Why does she have to quit?

FOWLER: Donald Trump has said it.

KELLY: Why does she have to quit when she took this job --

FOWLER: Because she is violating other people's individual constitutional rights.

KELLY: What about her right to exercise her religion which is actually written right into the First Amendment?

FOWLER: No. But the First Amendment, the right to religion she has. She can freely worship, she can freely go to church. But in this particular instance, she ran for office, understand the key function of her job. I went to Connecticut -- the Kentucky law and looked up what the function of her job is, it's to issue marriage licenses. And if she refuses to do that, then she refuses to do her job.

KELLY: Where is the tolerance from those who disagree with Kim Davis for her sincerely held religious belief? Because what we have heard and what we've been told in many corners is that to be a liberal, to be a progressive means to stand for tolerance. And what we heard about Kim Davis from certain corners today and I refer you in particular to the view and someone named Michelle Collins was this. Listen.

(BEGIN VIDEO CLIP)

JOY BEHAR, "THE VIEW" CO-HOST: This is a woman who has been married more times than everyone at this table combined.

MICHELLE COLLINS, "THE VIEW" CO-HOST: Four times, have you seen the lady?  I'm serious. She's a monster.

(LAUGHTER)

(END VIDEO CLIP)

KELLY: Mocking her looks and calling her a monster.

FOWLER: I disagree with that, Megyn. I disagree with people calling anybody names. I'm sure when this segment is over, Twitter will call me a lot of names and I disagree with that too.

KELLY: They shouldn't.

FOWLER: And they shouldn't. You're exactly right. But I'm talking about the legality of this. And on the legal side, she is indeed in violation of the constitution which is why she was jailed by the federal judge.

KELLY: I don't know about that. You are on the opposite side of Eugene Volokh which FYI, it's never a good sign. Richard, it's good to see you.

FOWLER: It's good to see you too, Megyn.

KELLY: When Kim Davis left jail today, the President of the Family Research Council Tony Perkins was there to meet her. Here she is holding his new book. And now in an exclusive interview, Tony Perkins is with me.  And he is the author of "No Fear: Real Stories of a Courageous New Generation Standing for Truth." Soon to be amended to add a Kim Davis chapter according to Tony.

TONY PERKINS, PRESIDENT, FAMILY RESEARCH COUNCIL: Actually Chapter 13 says write the next chapter. She wrote it today.

KELLY: So, Eugene Volokh has made clear. You have Muslim truck drivers who don't want to transport alcohol. The Obama administration came out and said, everyone, this is a quote from the Obama -- "Everyone has a right to observe his or her religious beliefs. And employers don't get to pick and choose which religions or religious practices they will accommodate." But you heard the argument on the other side. Gays and lesbians have a right, a constitutional right according to the Supreme Court to marry and Kim Davis can't stand in the way.

PERKINS: They cannot force someone to participate. There is no undue harm done to them in terms of the fact they can go to another county or what you said earlier, we have a long history of accommodation in this country.  (INAUDIBLE) objectors, they can still serve in the military but we don't force them to take up guns, to take another lives.

KELLY: Jehovah's Witnesses who don't want to raise flags is another example --

PERKINS: Right. But even in public this idea that it is only for private citizens and not those in public. What he is advocating and what those on the other side is advocating is a reverse religious test. So that if you have an Orthodox religious view about marriage, you are barred from serving in public office. At least in some public offices. This could be settled Megyn very quickly. If the Governor, Governor Beshear would simply call the legislature into session as you pointed out, they did in North Carolina and they allowed for the religious beliefs of these clerks. It's very simple. We have a history of doing that. Five lawyers on the Supreme Court created this dilemma. Now, unfortunately it is up to legislatures and chief executives of the state level.

KELLY: You know the argument on the other side though. What if somebody goes in there and says, my sincerely held religious beliefs and now we're back in 1952 say, blacks and whites shouldn't get married. And therefore, I don't care that the Supreme Court said it's legal, I object and therefore, no.

PERKINS: Well, it's much different. You have a long standing Orthodox view about marriage in the Bible. The issue of interracial marriage is very difficult to point in to scripture. Are there some that hold that view? Yes. But it is --

KELLY: What about Muslims? What about Muslims who say, a Muslim man may not marry a Christian woman and therefore you applying to me on the Muslim cleric? I'm not giving you that marriage license.

PERKINS: If -- are you saying if there is a Muslim and clerk that --

KELLY: The Muslim clerk says, I want a religious accommodation -- how many accommodations can we grant?

PERKINS: Right. In this particular case. What you have are the voters of this district, of this region of the country that elected her as the clerk.  If they don't like what she is doing they can kick her out. It is not up to some unelected judge to impose her views on her and hold her in contempt of basically whatever he wants.

KELLY: And she may yet be if somehow she interferes with future licenses to be issued by the deputies although it doesn't sound like she is going to do that if they changed the issue.

PERKINS: Well, here is all she wants. All she wants is to have her name off the license. She is not saying nobody in my office can issue this.  She's saying, I just don't want my name --

KELLY: Don't do it in my name. But the other side says, well, don't be the county clerk because we need your name.

PERKINS: Look, let me address that issue. We have the freedom of worship.  Look, we don't have the freedom of worship. The pilgrims didn't come to this country because they want to change their church membership. They came here because they wanted to live their lives according to their faith.  And that is all that Kim Davis wants to do. It's all that Christians across the country want to do but it is becoming increasingly difficult under the policies of this administration.

KELLY: This book is called "No Fear." Franklin Graham calls it a masterpiece. What is its message in a nutshell?

PERKINS: It tells the story of about a dozen, mostly young people who are serious about their faith. You know, a lot of people treat religion as if it is a dial on your stereo, if you don't like it you change it or you hit scan. But for many, I would say, millions of Americans, it is like a GPS, it guides every step they take. We tell those stories of those young people in different settings who stood up for their faith and didn't compromise. Was it difficult? Yes, we capture the emotion, we walk through it but in the end, they were true to their faith and the lord Jesus Christ. And we want those stories to be out there.

KELLY: Great to see you.

PERKINS: Thank you, Megyn.

KELLY: Thanks, Tony.

Well, we are also hearing tonight about -- we're hearing this tonight from a presidential candidate who says, the First Amendment must be protected.  Dr. Ben Carson is here next.

Plus. President Obama got a very angry message from one police group this Labor Day weekend. The executive director of that group is here live on the backlash after his members boycotted the President's big speech.

And just weeks before six Baltimore cops head to trial for the arrest and murder of Freddie Gray -- well that's the allegation that it was a murder.  He died in police custody, the city of Baltimore proposes a multimillion dollar payout to the Gray family. Mark and Arthur are here on how this very fast settlement could impact the criminal case.

(BEGIN VIDEO CLIP)

MARILYN MOSBY, BALTIMORE CITY STATE'S ATTORNEY: I heard your call for no justice, no peace. Your peace is sincerely needed as I work to deliver justice on behalf of this young man.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

KELLY: When a federal judge last week ordered Kim Davis to jail for refusing to issue marriage licenses to same-sex couples almost the entire GOP field weighed in. And tonight we hear from republican presidential candidate Dr. Ben Carson on Kim Davis' release and on a newly issued apology from Hillary Clinton when it comes to her e-mail scandal.

Dr. Carson, it is great to see you again. What is your take on Kim Davis and whether it was appropriate to jail her in the first place?

DR. BEN CARSON, R-PRESIDENTIAL CANDIDATE: Well, jail seems a little extreme. I think what we need to look at is how do we stop this kind of thing from being a continuation? You know, when the Supreme Court made its decision anyone should have known that this kind of thing was going to occur. And it's going to continue to escalate. And Congress now has a responsibility to step up to the plate and enact legislation that will protect the First Amendment rights of all Americans. That's the reason that we have divided government. When one branch does something that tilts the balance the other branches need to pitch in and correct the situation.  This is a serious problem.

KELLY: But the detractors say that is a slippery slope because next you're going to have Catholics who refuse to issue a marriage license to people who have been divorced or Muslims who refuse to issue marriage licenses to Muslims who want to marry Christians and so on. Where does it end?

CARSON: But this is a very basic right. You know, this is a Judeo- Christian nation in the sense that a lot of our values and principles are based on our Judeo-Christian faith. And when there are substantial numbers of people who actually believe in the traditional definition of marriage.  I'm one of them. Doesn't mean that I don't think other people can do whatever they want to do. But I don't actually believe that they have a right to force their way of life upon everybody else nor would I try to force my way of life upon anybody else. And this is where some intellect has to come into place. And, you know, our legislators need to sit down and ask themselves, how do we make sure that the rights of all Americans are protected? It requires a little bit of effort.

KELLY: I want to talk to you because I haven't seen you since we saw the Carson surge in the polls. And there was a Monmouth University poll that was released last Thursday that showed, you are now tied in Iowa with Donald Trump for the number one position in the nation's first caucuses as of today. To what do you attribute your surge in the polls?

CARSON: Well, actually, one of the things that helped tremendously was the debate on FOX. When a lot of people who really didn't know who I was had an opportunity to see me and actually hear me speak myself as opposed to how I have been portrayed by many in the media who have their own agendas.  And as I have been going around the country and talking to people, you know, I am in San Francisco today and spoke to a large audience here.  People are actually able to see that maybe there is some substance there and this is going to continue to make a difference as time goes on. You know, I'm not competing with anybody. I'm not competing with Mr. Trump.  But I do have a vision for this nation which I think is shared by a lot of Americans and time will tell as we go on.

KELLY: Jonathan Capehart of The Washington Post issued a piece suggesting the reason why you are gaining such traction with Republicans is as follows. I would argue that a good portion of Carson's popularity stems from his ability as a black man to say things that conservative white audiences get attacked for especially along racial lines. What do you make of that?

CARSON: Sounds like a pretty typical democratic response. You know, everything is always cast in the light of race. Why can't you actually look at the content of a person's character and see what they have to say?  If they happen to be one race or another race, so be it. That does not have to be the central issue. But, you know, so many people on the other side see everything in racial terms and they believe that you have to think a certain way if you have a certain skin tone. News flash, that is racism.

KELLY: Well, Dr. Carson's surge in the polls means he is actually beating Donald Trump in one head to head matchup. He will talk about that next and respond to Mr. Trump's -- not full blown attack. You judge next.

Plus, prosecutors are tonight looking at assault charges for two high school football players who may have engaged in a little on field revenge.  Is that fair? We'll report. You'll decide. Ahead.

(BEGIN VIDEO CLIP)

BRIAN WOODS, NORTHSIDE ISD SUPERINTENDENT: The incident is shameful to us.  And yet in no way does it reflect what we stand for in our school district.

(END VIDEO CLIP)

KELLY: New reaction to republican presidential candidate Dr. Ben Carson's surge in the polls. The rising numbers could mean that the frontrunner Donald Trump may now be feeling the heat in the battle for the GOP nomination. More now with Dr. Ben Carson.

I want to talk to you about Donald Trump because you are tied with him as I mentioned in Iowa. And the head to head matchups that Monmouth offered voters in those head to head matchups, you were the only republican that beat Donald Trump -- as you can see here, at 55 to 36 percent. Now, he kind of already attacked you in the wake of that, you know, went after you a little bit. I don't know if it's a full attack. But he said, "Look, I like Dr. Carson. He's a nice guy but he hasn't created jobs. He is a doctor in an operating room with a couple of nurses. I on the other hand created over tens of thousands of jobs, over 10,000 jobs he says, over the course of my career. It's just not the same. Your response to that?

CARSON: Well, my response to that is that interestingly enough and perhaps a lot of people don't know this, I have actually done things in my life other than medicine. I have decades of experience on corporate boards, Kellogg, Costco (ph), Vaccinogen, started a national nonprofit, have been involved in a multitude of things. But of all of the things that I have been involved in, the one that I cherish most is being involved in saving the lives of young children, giving them not only longevity but quality of life, changing a dark situation into a situation of light for those families. I think that far exceeds anything I have ever done in the world of business.

KELLY: You know, you know, you're a born again Christian and have welcomed god into your life. Mr. Trump was asked last week if he wanted to share his favorite Bible verse. He said it was too personal. Do you care to do that?

CARSON: I do care to do it. I have several favorite versus. But number one would be Proverbs 3, 5 and 6. "Trust in the Lord with all your heart.  Lean not to your own understanding and all your ways acknowledge him and he will direct your path." And then Proverbs 22:4 says that, "With humility and the fear of the Lord that's where life and wealth come from."

KELLY: Now, speaking of humility, Hillary Clinton came out today and sort of apologized. A lot of qualifiers in it. I heard the words I am sorry which was new today. Your thoughts on her plummeting in the polls and her I guess apology for what it was worth tonight on ABC News.

CARSON: Well, interestingly enough, you know, she also sort of took responsibility for Benghazi, but there were no consequences to it. What difference does it make to quote her, you know, if you don't really have any consequences associated with saying, I take responsibility? And, you know, she has become quite apparent to the people. As much as I would like her to be the democratic candidate I don't think she is going to be for that reason.

KELLY: Really? Who do you think it is going to be?

CARSON: No, I don't think it's going to be her. I think the Democrats have more sense than to put somebody up as their candidate who really is not going to win no matter who is running.

KELLY: Who is it going to be?

CARSON: Well, you know, there are a lot of possibilities that they can choose from. And, you know, the obvious one is going to be Biden. But, you know, there are a lot of people that they can pull from and they better get started doing it pretty quickly.

KELLY: Dr. Carson, always great to get your perspective. Thank you for being here tonight, sir.

CARSON: Thank you, Megyn.

KELLY: All the best to you.

Well, big news breaking in Baltimore today, when the city announced a multimillion dollar settlement for the family of Freddie Gray who died in police custody. Mark and Arthur are next on how this deal got done in record time, what the mayor said in justifying it and what it means for the six cops facing criminal charges.

Plus, one police group in Boston decided to boycott President Obama's Labor Day speech with the group's director saying, the President, quote, "has blood on his hands." The man who said that joins us live in a "Kelly File" exclusive, next.

And then the fight between Donald Trump and Jeb Bush gets even more vicious tonight. And Marc Thiessen is here on who is winning the latest battle.

(COMMERCIAL BREAK)

UNIDENTIFIED MALE: From the world headquarters of Fox News it's "The Kelly File" with Megyn Kelly.

KELLY: Well, President Obama receiving an angry message from one police group this Labor Day weekend. The New England Police Union urging its members to boycott the President's Labor Day Address in Boston, blasting the Obama administration for what it says is utter silence when it comes to the anti-police rhetoric and even attacks we have been seeing now for months. Joining me now Jerry Flynn, the Executive Director of the New England Police Benevolent Association. Great to see you, Jerry, thank you so much for being with us tonight. You said earlier you believe that President Obama actually has blood on his hands. Why?

JERRY FLYNN, NEW ENGLAND PBA EXEC DIRECTOR: First of all Megyn, thank you very much for having me. You know we have been dealing in the last month - - we had eight police officers killed in the line of duty in this country.  And we have heard nothing from the President. This is a man who in 2004 went from an unknown state senator to the White House based on his epic speech at the DNC Convention. And quite frankly there is probably no better prolific speaker than the President of the United States himself.  Yet, when it has been time to talk and talk about the racial divide that is in this country he has done nothing. As far as we are concerned, these are hate crimes against police officers. These are members of his administration, we can go back to his first term in office. I was invited along with 30 other people.

KELLY: You actually went to the White House. You met a while back with Vice President Biden and he made you a promise. What was it?

FLYNN: Well, let me just say this, Megyn. Joe Biden was not only the Thomas Jefferson of the Crime Bill which was signed into law by President Clinton in 1994, but Joe wrote that bill. And I know Joe, and I worked with Joe personally. I have a lot of respect and admiration for the man.  We went to his office he told us in no uncertain terms when we told him we had concerns about this President, he stated he would be the voice of law enforcement. Well, that voice has been silent, as well. This isn't just an Obama problem. This is an administration problem. And going up so far as the Attorney General Holder, he has been nothing more than a puppet for this administration. In all due respect to Joe his silence has been a real hindrance.

KELLY: Now he has been replaced by someone who has made statements on behalf of law enforcement.

FLYNN: She has.

KELLY: I know law that enforcement hasn't been satisfied. I want to ask you this, is this a partisan thing for you? Do you dislike President Obama for political reasons?

FLYNN: That's funny you say that, Megyn. Most labor unions in this country -- so you have a D at the end of your name they endorse you. The New England Police Benevolent Association had that rhetoric. We have endorsed both sides of the aisle. Matter of fact, in Massachusetts we endorsed Charlie Baker and Lieutenant Governor Karen Polito who are both Republicans. We endorsed the Governor from New Hampshire who happens to be a Democrat. We have endorsed...

KELLY: It's about police lives.

FLYNN: We endorse the people who are supportive of us. This isn't about personalities. This isn't about anything other than protecting those who protect and serve this country. And quite frankly, we are appalled at what the Massachusetts AFLCIO has said in response to our boycott. And you know there is no place in today's society to have a President of the United States who is one of the most prolific speakers in the last 20 years to remain silent.

KELLY: Jerry Flynn, Thank you for being here sir. We appreciate it.

Well, there was also big news from Baltimore today, after the city announced a proposed settlement of $6.4 million to the Freddie Gray family, Gray of course, the man who died in police custody near the end of April.  The announcement comes just weeks before the criminal trial for the six officers charged in his death. And according to the Mayor, Stephanie Rawlings-Blake, the agreement should, "Not be interpreted as a judgment on the guilt or innocence of the officers facing trial." And that's not all she said. Mark Eiglarsh is with me now, he's a Criminal Defense Attorney and Former Prosecutor. Arthur is a New York Trial Attorney and a Fox News Contributor. She went on to say it's a voice -- litigation that would only make it more difficult for our city to heal, Mark, your thoughts.

MARK EIGLARSH, CRIMINAL DEFENSE ATTORNEY: Megyn, I try cases for a living.  Jurors rarely believe in the presumption of innocence. They think is they're sitting there they must have done something. This fact that they are going to hear that the city paid out $6.4 million -- which by the way just to put it into perspective, since 2011 there has been 120 police brutality lawsuits that have been settled. The total amount -- if you add all of those settlements up you don't get to $6.4 million. These jurors heard about the settlement. They are going to believe erroneously that they must have done something wrong. It is going to be a nightmare for jury selection.

KELLY: This has to set a record, Arthur, for settlement of the civil suit in a case like this well before the criminal trial.

ARTHUR AIDALA, NEW YORK TRIAL ATTORNEY: First of all, Megyn, no civil case was ever brought. They are settling before a case has even been brought.  That is insane, number one. Number two, in that particular state on these types of cases there is a cap. It used to be 200,000. It is 400,000. A similar case went to trial. The jury awarded 11 million and the court of appeal knocked it down to 400,000. And the last fact I want to point out is this past April, an individual who got shot and killed by the police, his settlement was $175,000. So the message is if someone in your family gets hurt by the police start a riot, start chaos and your whole family will have generational wealth.

(CROSSTALK)

KELLY: Because there is an allegation in the criminal case that you all know -- we're going to hear more about when that case goes to trial that Freddie Gray was a person who was trying to injure himself and had done so in the past allegedly -- possibly to get a civil settlement against the cops or there was an allegation that he didn't want to be seen as a snitch which they said he was so he tried to act out to show how upset he was -- what have you. But the point is Mark, the city did have a leg to stand on when it came to its defense.

EIGLARSH: Apparently not. They gave in to this. It's only been six settlements over 200,000 since 2011. That's number one. Number two, apparently the message to the jurors is that this wasn't a self-inflicted injury. Because why else would they pay?

KELLY: What about the testimony of Donte Allen who was in the van with Freddie Gray? You would think the city would want to argue that case before they paid it out, Arthur.

AIDALA: And Megyn, how about the fact how quickly this took place? You know the civil system. Cases never get settled in five months, not of this magnitude. There is an investigation.

(CROSSTALK)

KELLY: Did this get brought into evidence, Arthur? Juries just know about it from media.

(CROSSTALK)

AIDALA: Megyn, what I would like to know is did the city attorney sit down with the prosecutors? Did they talk about the evidence? Is the city really at fault? If I am a citizen of Baltimore who is a tax-paying citizen I'm going through the roof. You know how many kids you can feed lunch to with $6.4 million. Maybe it is $1 million case or $750,000 case.  But it is not a $6.4 million case.

KELLY: She wants the city to heal.

EIGLARSH: Megyn, unless there are six guilty verdicts the city is going to burn. That's the problem. They are not buying insurance right now.

KELLY: I want to tell the viewers right now that Mark and Arthur will be back on Thursday night because we expect big news.

(CROSSTALK)

AIDALA: Now I know what I'm doing Thursday. How about you, Mark?

KELLY: I'm here along with our viewers.

All right, also coming up two high school football players could face charges now after a hit on a referee gets national attention.

And then, Hillary Clinton in tears tonight in the middle of her interview with ABC News. We'll show you why. Does it have anything to do with her campaign saying she's going to show more heart? I'm just asking.

Plus, a new battle breaks out between Trump and Jeb Bush, and up next Marc Thiessen tells us why the dust up reminds him of this.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Gambling is illegal and I never slide.

UNIDENTIFIED MALE: Ok, you can owe me.

UNIDENTIFIED MALE: I owe you nothing.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

KELLY: Developing tonight, an ugly new twist in the ad wars between Donald Trump and Governor Jeb Bush. Watch.

(BEGIN VIDEO CLIP)

JEB BUSH, R-PRESIDENTIAL CANDIDATE: We have an important choice to make about the direction of our country. If you want more D.C. politicians or more self-promoters you have options. Anybody can talk. I have delivered.  And I hope to earn your support.

UNIDENTIFIED MALE: Having trouble sleeping at night, too much energy?  Need some low energy?

BUSH: I think the norm ought to be...

UNIDENTIFIED MALE: Jeb, for all your sleeping needs.

(END VIDEO CLIP)

KELLY: That one hurt. That had to hurt. Marc Thiessen is here, Former Chief Presidential Speech Writer for George W. Bush. You tell me which one was more effective?

MARC THIESSEN, FOX NEWS CONTRIBUTOR: Oh my gosh, Donald Trump. Donald Trump is having a field day with Jeb Bush right now. When he shows a picture of a woman falling asleep at a Bush rally and has an alternative for insomnia.

(CROSSTALK)

KELLY: She had a long day, she's a working mom, and she woke up at 5:00.  That doesn't fix it.

THIESSEN: Exactly. And then he had an ad the other day showing Bush's mother saying you know he shouldn't run. We had enough Bushes. And the tag line was mother knows best, Jeb. He is like Rodney Dangerfield in Caddie Shack taking pot shots at Judge Smells. It's just horrible.

KELLY: So Bush responds by doing this pre-produced ad where he looked Presidential -- I am a serious candidate and not a self-promoter, effective at all?

THIESSEN: No, not at all. I mean number one, taking on Donald Trump for being a self-promoter. This is a guy who has buildings across America with his name lit up in gold. I mean people know he is a self-promoter and supporting him anyway. So self-promoter isn't a good attack. And then second of all, who advised Jeb Bush to say I'm offering something new, when your name is Bush you are not offering something new, you are offering a third Bush term. So I don't know how that's an effective ad.

(CROSSTALK)

KELLY: What is Jeb supposed to do? What can he do because he tried not fighting and now he is trying fighting? What is he supposed to be doing differently?

THIESSEN: He's got to fight. But I -- you know it's very hard. I mean we are in a situation where you know the poll that you were citing with Ben Carson showed 67 percent of Republicans want someone with no government experience who is going to shake up Washington. Only 26 percent say they want somebody with government experience who can get things done. Jeb Bush's ad is called I delivered. It's about how he got things done, it's the exact opposite message of what the Republican electorate want. So when 67 percent of Republicans want an outsider it is a really hard year to be named Bush.

KELLY: Certainly is. This is from a man who used to work for President Bush.

THIESSEN: I love President Bush and I love Jeb but it is very hard year to be running as a Bush.

KELLY: You love him the way Trump loves him. I love Jeb Bush however he sucks. Great to see you, Marc, that's Trump.

In other news, Hillary Clinton spoke with ABC News tonight and seemed to offer an apology for not using two email accounts while Secretary of State.  That was one day after she said she would not apologize.

(BEGIN VIDEO CLIP)

HILLARY CLINTON, D-PRESIDENTIAL CANDIDATE: I should have used two accounts, one for personal and one for work-related emails. That was a mistake. I'm sorry about that. I take responsibility and I'm trying to be as transparent as I possibly can.

(END VIDEO CLIP)

KELLY: Dana Perino is co-host of "The Five" and Former White House Press Secretary for President George W. Bush and Author of the book And the Good News is, so I will not apologize -- I'm sorry.

DANA PERINO, "THE FIVE" CO-HOST: That was yesterday morning.

KELLY: What happened?

PERINO: There was a poll. In fact, I really do think the more they poll test this -- they actually said in the New York Times story they have been focus grouping and talking about Hillary and what can be done. And I think that both on the email side of things and on the broader strategy, they have poll tested it to death. And now she's going to have scripted spontaneity.

KELLY: That's what they told the New York Times. Now everything is going to be all about spontaneity, just as preplanned as it can be.

PERINO: Absolutely.

KELLY: Including this. Ok, so you tell me whether this is authentic or not. We want her to show more heart. Cue the violins.

(BEGIN VIDEO CLIP)

CLINTON: She told me every day you have to get up and fight for what you believe in no matter how hard it is. And I think about her a lot. I miss her a lot. I wish she were here with me. I remember that.

(END VIDEO CLIP)

PERINO: Totally unplanned. I don't think that those tears were absolutely planned. But I do think that her team has been talking to her so much and saying you should be more like you are when you are behind closed doors with us and show more heart. It shouldn't have to be this way. She has $2 billion in the bank, all the grass roots support she could ever hope for.  Her husband's vast political network, she has experience that she can fall back on. And instead she is constantly churned up in the email scandal.  And every six weeks like clockwork, the New York Times writes a piece about how the Hillary campaign is going to reboot and now she's going to be transparent.

KELLY: Stirewalt says her campaign is making all of the familiar gasping and gurgling that emanates from a failing effort. Is it that bad?

PERINO: Chris Stirewalt has a way with words.

(CROSSTALK)

PERINO: Floundering and foundering is another phrase that he used...

KELLY: Let's face it, she is still by far the most likely person to be the Democratic nominee.

PERINO: In New Hampshire and Iowa, she spent $13.8 million in the last month. Her numbers are now at a 23 year low. She's lost 18 points between Memorial Day and Labor Day, that's not going in the right direction.

KELLY: Last time in New Hampshire, she cried and then she won New Hampshire. We'll see. It was a nice moment.

Up next, those two football players in big trouble.

(COMMERCIAL BREAK)

KELLY: Developing tonight, two Texas high school football players have been suspended after pummeling a ref during a game. But now that suspension might be the least of their troubles. Trace Gallagher live in our west coast newsroom with the story, Trace?

TRACE GALLAGHER, LOS ANGELES: Megyn, there was a minute left in the game John J. High School in San Antonio was trailing Marble Springs 15-9.  During the game John J. had two players ejected and some controversial calls went against them. John J. Assistant Coach Matt Breed has been accused of telling players the ref needs to pay for cheating us. That's when the ref was blindsided by one player and while he was on the ground the ref was speared by a second player. Listen.

(BEGIN VIDEO CLIP)

BRIAN WOODS: The incident is shameful to us and is deeply troubling to all of us, who for many years have been associated with athletics and with extracurricular activities in our school district.

(END VIDEO CLIP)

GALLAGHER: Both players involved were ejected, suspended from school and can now be expelled as well as face criminal charges for assault. While the local police and school district conduct investigations, the district is now filing complaint with the Texas Association of Sports Officials accusing the referee who got hit of using racial slurs against the players, saying that's part of what led up to all of this.

(BEGIN VIDEO CLIP)

STAN LAING: At this point, we can definitely say there were two, but there may be more. We're still investigating that.

(END VIDEO CLIP)

GALLAGHER: Today, the referee denied making any racial slurs telling texashighschoolfootball.com "Libel and slander have already been committed against me. I will be contacting the appropriate people soon." After he got hit, the referee was apparently sore but not injured. The assistant coach accused of asking his players to go after the ref has been placed on administrative leave. The school is holding a hearing on the matter next week.

KELLY: Thanks Trace, we'll be right back.

(COMMERCIAL BREAK)

KELLY: Tomorrow night we have Brit Hume, Judge Napolitano, Howie Kurtz, Dana Loesch, Carly Fiorina, I could go on. Bottom line is don't miss. In the meantime, go to facebook.com/thekellyfile, follow me on twitter @MegynKelly. Let me know what you think. Was it a genuine moment with Hillary Clinton? I mean, it seemed she was upset. Let me know what you think.

This is "The Kelly File."

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