The legality of a possible Mattis nomination

The 'Special Report' All-Star panel weighs in


This is a rush transcript from "Special Report with Bret Baier," December 1, 2016. This copy may not be in its final form and may be updated.


REINCE PRIEBUS, INCOMING WHITE HOUSE CHIEF OF STAFF: General Mattis yesterday was an incredible man. I mean, he is another person that brings all Americans together no matter who you are. You look at General "Mad Dog" Mattis and you say to yourself, holy smokes, this guy's a leader. And I can tell you one thing that president-elect Trump are winners and leaders, and certainly General Mattis is that all in one.


BRET BAIER, ANCHOR: White House chief of staff to be Reince Priebus talking about General James Mattis. We are told that an official announcement about the defense secretary and Mattis being the choice could come as soon as Monday. However, officially from the campaign tonight they are not confirming that.

James Mattis is a retired marine general, Marine Corps general, served 44 years in the U.S. military, retired his command in 2013, has a lot of active duty under his belt. He also has blunt spoken, straightforward language that sometimes puts some administration officials on their heels. And he was at odds with the Obama administration over Iran specifically and U.S. troop withdrawals in the Middle East.

Now, one of the hiccups or the hurdles that we're being told by the administration is about this waiver. Because he retired in 2013, there is a law, a statute that goes back to 1947 that says military men, anyone in the military has to have seven years before they take an administration job. However, Shannon Coffin (ph) writes in a piece about this, "On its face this law means that Congress will have to enact a statutory exemption to permit General Mattis to serve as secretary of defense, something it apparently has done once in the case of George Marshall in 1950. At that time Congress also noted the sense of the lawmakers that no additional appointments of military men to that office shall be approved. This statutory limitation on the president's power to appoint officers of his choosing is almost certainly unconstitutional. The constitution vests the president with the sole authority to nominate executive officers of his choosing. The only constitutional limitation is the incompatibility clause which prevents a member of Congress from serving in any office of the United States." So that gives you the back and forth on this.

Let's bring in our panel: Steve Hayes, senior writer for The Weekly Standard; Matt Schlapp, contributor with The Hill; Julie Pace, White House correspondent for the Associated Press, and syndicated columnist Charles Krauthammer. OK, Steve, we'll get to the logistics of this statute, but what about Mattis and this potential choice?

STEVE HAYES, THE WEEKLY STANDARD: It's hard to imagine somebody who would be received more enthusiastically by the rank and file uniform military than James Mattis. The marines who served for him, served with him, love him. They speak highly of him. He's known as the warrior monk because he has done so much reading. Arguably nobody in the U.S. military has done more reading than James Mattis has. He has got this famous letter that he wrote back in 2003, 2004, about the importance of reading before you head into battle. It went viral. It's been a big deal.

I think you described the potential obstacle of the exemption in the correct terms. It's not really an obstacle. If it's a hurdle, it's a one- foot high hurdle. John McCain has indicated that he's willing to do that. The armed services committee both in the House and the Senate are looking at language that would do the exemption. I'm told they are not looking at it because they've been instructed to do so by the Trump campaign, but that everybody understands that this is in effect Donald Trump's choice.

BAIER: One of the reasons we think that maybe the transition is very quiet on all of this is because they love the story of the Carrier story today, which we're going to talk about in the next panel. But what does this choice say about president-elect Donald Trump in your mind?

MATT SCHLAPP, THE HILL: The transition needs to stop making so much progress clearly because they're stopping on really good news and they're making so much progress, fast progress on picking these nominees. I do think it's interesting that you had Mike Flynn who also needed a waver to be nominated to be secretary of defense who was forced out of the Obama administration. He of course is going in as national securely advisor. Now you have another military man who will have to get a waiver who was also forced out, early retirement they called it, it was a little bit of the euphemism, because of the Iran deal.

And I think what it tells you about Donald Trump, the first thing is that any age is acceptable. There was always this thing about youthful vigor in these new administrations, and I think what we're seeing with Donald Trump is that he wants people with long and extensive experience to be part of his administration. I think that's great.

BAIER: I want to get the natural sound of the meeting there outside when he met with Mattis. Julie, I think this pick, Pompeo at CIA, if you are Iran, this is not a good moment for you.

JULIE PACE, ASSOCIATED PRESS: I think if you're Iran Donald Trump's presidency is not a good moment for you. And I think he's sending that signal with his picks. I also think it's really important for someone like Donald Trump who for all of his business skills and all of his connections that he's been able to make with voters comes into the presidency without any significant international foreign policy experience. He's going to need people around him. Things happen when you're president around the world that you just can't predict and he's going to need people who have experience on these issues, have experience making decisions quickly. Mattis is one of those people. And as Steve said, I think he is going to be widely accepted not just by the rank and file, but also lawmakers I believe from both parties on the Hill.

BAIER: I want to turn to the secretary of state quickly, Charles, and the list that we have now at five, Mitt Romney, Rudy Giuliani, Senator Bob Corker, another general, David Petraeus, retired general, and John Bolton. There's some indication that Trump may be trying to get to Romney, but he's getting a lot of pushback from people that have been loyal to him, Kellyanne Conway and Newt Gingrich.

CHARLES KRAUTHAMMER, SYNDICATED COLUMNIST: We've never quite seen anything like this, sort of the public back and forth, the president deciding in a very open way through all kinds of theatrical moments like the dinner last night or the other night. I don't think there's any way to tell. This is going to be a very personal decision. I think Trump is looking to see if he can form a personal connection with Romney. But I can I just say one thing about Mattis?

BAIER: Sure.

KRAUTHAMMER: It's good to have a military man. It's also good to have a military man who is known as "mad dog," because let's say you're trying to send a message to obstreperous Iranians who have been harassing our boats. I think you want to send a message that says something like if you don't stop within 48 hours, I may have to turn the matter over to mad dog, translated afterwards into Persian. I think that can be quite useful. Nixon used the crazy factor to great effect. The Russians were always afraid that they could push a button and he would go over the top as when he went to nuclear alert during the Arab-Israeli war of '73. So good to have a mad dog on your side, especially one with his strategic knowledge and range and tactical operational experience. That's very rare and would serve extremely usefully in the cabinet.

HAYES: The thing about Mattis is that he's known and respected for so many reasons. One is that he's known as the mad dog. He's blunt. When the never-Trumpers were looking for somebody to recruit to be an intellectual Donald Trump they turned to James Mattis.

BAIER: We did a piece about it. He considered it.

HAYES: He thought about it, and then eventually decided against it. But also he has this intellectual side, but he also has this softer side. After he left the Marine Corps he took this road trip across the country which he stopped and visited as many gold star families, the marines that he had commanded who were killed in battle fighting under him to visit their families, a solo road trip across the country. You just don't hear about that very much. He went to great lengths, it must be said, to have that not become a media story.

BAIER: In the meantime, Matt, we're hearing that the president-elect is considering Joe Manchin, a senator from West Virginia for energy, a Democrat from coal country. What about that potential move?

SCHLAPP: I think it's great. We have a lot of Democrats that are looking at the map in 2018. Heidi Heitkamp is another name we're hearing.

BAIER: She's meeting tomorrow.

SCHLAPP: They're going to have rough shredding in their states, and Joe Manchin I think would fit perfectly on questions of climate change, domestic energy exploration and the environment generally. I think he'd be a great pick. I was thinking about what Steve talked about with mad dog reading a lot about the State Department, maybe we'll have lapdog over there with Mitt Romney. And I don't know what they'll call Joe Manchin, but I probably wouldn't call him anything.

BAIER: What do you think is really behind the Newt Gingrich, Kellyanne Conway? Are they given a leash to express the base's frustration with Romney to get it out in the open?

PACE: The one thing we know about the process that Donald Trump runs is that he wants his advisors to be voicing their opinion. He likes to see this play out whether it's in private or public. He sent this message. And Kellyanne Conway and Newt Gingrich firmly believe that all of the things that we have seen from Donald Trump since the election, including softening on some of the positions, the thing that would anger his supporters most is putting Mitt Romney in the cabinet, which is actually really amazing when you think about it. But they think it would be an affront to the people who look at him as someone who will really come here, shake up Washington, that that would be just unacceptable.

BAIER: John Bolton meets at Trump Tower tomorrow, so we'll see where all that goes.

Content and Programming Copyright 2016 Fox News Network, LLC. ALL RIGHTS RESERVED. Copyright 2016 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.