First 100 Days

Stirewalt: Elizabeth Warren leading Democrats into a trap; Gorsuch 'disheartened' by Trump's comments on judges

This is a rush transcript from "The First 100 Days," February 8, 2017. This copy may not be in its final form and may be updated.

MARTHA MACCALLUM, FOX NEWS HOST:  Breaking tonight, the Trump administration has faced unprecedented backlash, empty hearing rooms, and a ton of resistance as they try to put together their cabinets.

You are looking live tonight on the floor of the U.S. Senate as we expect the president to get the Senate's final word on his pick for Attorney General Senator Jeff Sessions, who was in the room right now, as this goes on live this evening.

Good evening, everybody.  I'm Martha MacCallum.  It is day 20 of "The First 100."

In the final hours of this showdown over this nomination, we have witnessed new strains of what is left of civility among our nation's leaders.  Democrats launched loaded attacks against Senator Jeff Sessions, questioning the bottom line of his character, his decency.

In moments, we will be joined by Fox News politics editor Chris Stirewalt on how the Democrats are playing their cards here.

But, first, chief national correspondent Ed Henry joins us live on Capitol Hill with the latest on the ongoing vote.

Ed?

ED HENRY, FOX NEWS CHIEF WHITE HOUSE CORRESPONDENT:  Martha, it got pretty intense in the last 24 hours as you suggested.  Racial politics, basically, at its worst.  Accusations flying among Democrats late last night on the Senate floor led by liberal Senator Elizabeth Warren, that basically, they believe Jeff Sessions, one of their Senate colleagues, now the nominee to be attorney general poised to be confirmed at any moment, is a racist.

Using, in part, a letter from the late Coretta Scott King, who opposed his nomination a couple of decades ago for a federal judgeship to suggest that he intimidated elderly black voters decades ago against getting out and voting.

And what was the pressure point here, the turning point, was when Elizabeth Warren suggested that Jeff Sessions is a disgrace.  That led Republican Senator Mitch McConnell, the leader of course in this chamber to say that violates a Senate rule about impugning the character of a colleague.

In the end, Elizabeth Warren was barred from speaking again from the Senate floor, as part of this debate.  Some Democrats believe in, though, that Mitch McConnell may have made a mistake by making her a hero.

She has been celebrated on social media for the last 24 hours for standing up to Republican leaders.  But the very bottom line is that Jeff Sessions is poised in the next few moments to finally after a couple of weeks of delays to be confirmed as the next attorney general for President Trump.

And here's the real bottom line point and the most important message tonight in terms of the big picture is that when Jeff Sessions is confirmed, we believe in the next couple of moments, that will mean six cabinet picks of President Trump have been confirmed out of 15.

Why is that significant?  Barack Obama, at this point, in his presidency, as you noted, 20 days, had 13 out of 15.  Donald Trump by the end of tonight, we believe, will have 6 out of 15.  So that's less than half.  And that gives you an idea of the kind of delays he has been up against and why he has been so frustrated with what has been happening with the Democratic leader Chuck Schumer.

Interesting because some video emerged today of Schumer from back in 2013 saying that once someone is elected president, he believes it's widely viewed by Democrats, Republicans, liberals, conservatives, that the president should get their team in place.  That was Chuck Schumer in 2013. Now, singing a much different tune.

Democrats say in part it's because they are frustrated about how Merrick Garland was treated, never getting a hearing or a vote as Barack Obama's final Supreme Court nominee.  But, obviously, the Trump team feels like this is different.  This is the beginning of an administration, not a lame duck presidency.  And most of these nominees have not gotten a vote yet. But, finally, Jeff Sessions, getting that vote right now, Martha.

MACCALLUM:  Ed, thank you very much.

So here now with more, Fox News politics editor Chris Stirewalt.

Chris, good evening to you.  Good to see you tonight.

CHRIS STIREWALT, EDITOR, FOX NEWS DIGITAL:  Howdy, Martha.

MACCALLUM:  Howdy to you, too.  You know, the bottom line is that these people are going to get through thanks to Harry Reid.

STIREWALT:  Yes.

(LAUGHTER)

MACCALLUM:  So the question, the question that is post here to the Democrats is, you know, why are you doing this.  So obviously they believe it's politically expedient for them and that this is the way they should go, to kick and drag and scream on every one of these.

STIREWALT:  Well, you've got to feed the bulldog.  And in American politics, the bulldog is your political base.  And for Democrats, they will define their party by maximum resistance to Donald Trump.  Probably much in the same way that Republicans defined themselves in the past eight years, maximal resistance to Barack Obama.  And they are going whole hog.  They are all in.

MACCALLUM:  So when you look at the words that were used by Elizabeth Warren -- I mean, basically, she was using the racism card.  She also -- she is now playing sort of, you know, why do they make me sit down and shut up card.  Saying that other people, man, Ted Cruz, when he exhibited similar behavior was not asked to do the same.  It's racism and sexism.  Is this the way to reach the Democratic populace?

STIREWALT:  Well, we should start at and stipulate that maybe the Republican senators ought not be such special snowflakes that they can't hear a letter read from Coretta Scott King that's already in the congressional record, anyway.

(CROSSTALK)

MACCALLUM:  They are very special snowflakes almost.

STIREWALT:  They are so special and they have drivers and people take them places and they eat lovely lunches.  But they should probably calm their outrage entrance.

However, Elizabeth Warren is leading her party down a rabbit hole.  She is leading them into a trap and the trap is that by running as the party of antiracism and antisexism, basically keeping Hillary Clinton's campaign going, they are going to keep losing if this is what they do.

America in the last 50 years, in the past 50 years has come enormous lengths on the issues of race.  Are there still things to be done?  Yes. Do Americans wish that we could eradicate racism as it still stands?  Of course.

What do voters care about at home?  What are the voters in counties that switch 20 and 25 points from Obama to Trump?  The same voters who voted for Barack Obama and voted for Donald Trump in the Upper Midwest.

What are those people care about?  They care about jobs and they care about national security.  Jobs and national security.  Democrats used to know that.  Bill Clinton knew that.  LBJ knew that.  FDR knew that.

MACCALLUM:  Rahm Emanuel knows it apparently.

STIREWALT:  Rahm Emanuel knows it.  By goodness, he does.  And Democrats have forgotten about it.  They are running as the party of antiracism. Americans hate racism, but they hate being poor more than they do addressing vestigial racism in American culture.

MACCALLUM:  Chris Stirewalt, thank you, sir.  Good to see you as always.

STIREWALT:  You bet.

MACCALLUM:  So in the weeks, days and hours leading up to this moment, Senator Sessions' eminent confirmation tonight, Democratic attacks on the veteran senator kept escalating, culminating an allegations that he is outright racist as you've heard was just discussed.

Democratic Congressman Cedric Richmond wrote, quote, "Senator Sessions is as much a friend of the black community and civil rights as Bull Connor and the other good old boys were during the civil rights movement."

Another long-time senator, Republican Chairman Orrin Hatch slammed what he called a standard Democratic attack line.

(BEGIN VIDEO CLIP)

ORRIN HATCH, REPUBLICAN CHAIRMAN:  I'm in shock.  I'm in shock.  Here's Senator Sessions, who has served here 20 years.  Yes, he is conservative and yes, he's from my southern state, Alabama.  But it's almost like anybody from Alabama has been -- any white man from Alabama has to be a racist.  And that's about the attitude you get from the Democrats today.  And that is just total bunk and everybody knows it.

(END VIDEO CLIP)

MACCALLUM:  Sarah Isgur Flores is spokesman for Attorney General Designate Sessions and Michele Jawando is vice president of legal progress and the Center for American Progress.

Good to have both of you here.

Michele, first, to you.  React if you would to what you heard Senator Sessions just say.  He said in a sense that it is sort of reverse racism.

MICHELE JAWANDO, VICE PRESIDENT, LEGAL PROGRESS AND THE CENTER FOR AMERICAN PROGRESS:  You know, I think it's important to remember, when Senator Elizabeth Warren was on the floor yesterday evening.  She wasn't just reading her words, she was reading the words of one of our most beloved civil rights icons, the widow of Reverend Dr. Martin Luther King, who, 1986, this is not in the '60s or'70s.  In 1986 said that Senator Jeff -- well, then Jeff Sessions should not be confirmed as a judge to the Alabama court.

And there were a host of reasons, including his prosecutions of three black activists who were working on registering voters in Alabama.  That is a real reason not to move forward.

And I think the question for voters and for everyone to look at is, have things changed that much for us to say that the reasons why we couldn't confirm him in 1986 to be a judge, has everything changed then now in 2017?

(CROSSTALK)

MACCALLUM:  Let me get Sarah an opportunity to respond to what you had to say there.

Sarah Isgur Flores, spokesperson for Senator Sessions.  Sarah, go at it.

SARAH ISGUR FLORES, SPOKESPERSON FOR SEN. JEFF SESSIONS:  Well, there is so much there.  So, first of all, this case that she is referring to was brought on behalf of black voters who had actually complained that their votes had been changed.  Their absentee ballots had been changed.

Second, what has changed?  The witnesses at that 1986 hearing, several of whom recanted or were discredited.  And you have senators in this chamber who have work with Senator Sessions for the last 20 years, know his character, know that he is a good man.

What we are seeing is disgusting politics at work, and hypocrisy, and playing to your base at all costs.  It's dishonorable and it's really disappointing.

MACCALLUM:  You know, Michele, one of the words that was led to her being told that she had to be silenced last night actually came from Ted Kennedy, who said that he believed that the senator was a disgrace.  And that was actually the letter, according to Senator John Cornyn, that led to that admonishment, not the Coretta Scott King letter that you pointed to.

FLORES:  Correct.

JAWANDO:  Well, you know, yesterday, as we kind of consider what happened, that was not an admonishment around a Senator Kennedy letter.  That was Senator Warren seeking to move forward to put a letter, which I should add was not entered into the record after she requested it from then Senator Strom Thurmond and was seeking to do so yesterday.

But, listen, I served for a number of years in the Senate.  It is one of the most wonderful institutions we have.  There's a certain level of deliberateness and comity that we have.

MACCALLUM:  Not anymore.

JAWANDO:  But are we -- well, are we really at the point that hearing words that we tend to disagree with seeks then that means we have to censor our colleagues?  I think we saw a lone moment yesterday.

(CROSSTALK)

FLORES:  Those are the rules of the Senate.  She agreed to those when she was sworn in and on top of that you have Harry Reid getting rid of the filibuster.  You have Democrats at the highest levels of hypocrisy between the Biden rule, between Chuck Schumer's comments.

(CROSSTALK)

JAWANDO:  The Biden rule that's here.

(CROSSTALK)

FLORES:  --with President Obama in 2009.  I mean, there's just -- it would be laughable if this were be accepted, we've come to accept it as acceptable.

JAWANDO:  You know, there is a difference between obstruction and resistance.  And what we see right now are Democrats who are saying, you know what, I am going to resist what I see are unconstitutional moves, which are cabinet nominees that shouldn't be moving forth.  The attorney general is not the president's rule, it's the people's word.

MACCALLUM:  There's a "Politico" --

FLORES:  Indeed, the people are an important part of this.

(CROSSTALK)

MACCALLUM:  Sarah, hold on, a Politico poll that shows the majority of Democrats agree with what Michele is saying.  They want resist.  They want obstruction if necessary and they want their folks in the Senate to resist and that is what we are seeing.

FLORES:  I'm sure they do.  And I'm sure the Democrats will keep playing this losing hand.  It's why for the last eight years, they've lost over 1,000 seats.  And every chance that the American people have gotten to vote recently, they voted for Republicans.  It's why you have a Republican White House, a Republican Senate, a Republican Congress.

25 states are under full Republic control.  Do you know how many states under Democrat control?  Five at this point.  So they keep playing this hand.  They keep losing it.

We saw it with the war on women.  We feel that if you disagree with them, you are racist.  You are not a real woman.  You are not a minority if you don't agree with the Democratic policies and the American people keep rejecting it.

MACCALLUM:  So Michele, Sarah is saying that it' out of touch, you know.  That these arguments are not where the hearts and minds of people in this country are right now.  And that's why your side has been losing elections. Does that hit home at all with you?

JAWANDO:  You know what, I -- the one thing that I will agree is that Americans aren't into labels.  What we are into is how do we move forward together in a world where everyone's rights are respected equally.

And what we often see --

(CROSSTALK)

MACCALLUM:  But that's not what we've heard in this argument with Senator Sessions.  I mean, look at this for example, who you know, before he passed away asked people to reconsider Senator Sessions.  He said, I was wrong on him in 1986 and now that I know the man, I feel very differently.

So why, you know, is Elizabeth Warren grandstanding here or --

JAWANDO:  Well, I think it's important to also recognize that Evelyn Turner who was one of those activists who was maliciously prosecuted by Senator Sessions in a recent USA Today op-ed said he should not move forward to be the attorney general.  That's not anybody else's words.  That's one of those three activists who was maliciously prosecuted.

FLORES:  And her son, by the way, the son of her husband and her, who were both prosecuted endorsed Senator Sessions as have many Alabama Democrats.

JAWANDO:  The son versus the mother.  And I think we all listen to our mother as much as possible.  Look --

(CROSSTALK)

FLORES:  Well, clearly, the son felt so strongly --

(CROSSTALK)

JAWANDO:  Where the American people want to be is they want to make sure that this government is going to represent everyone's issue, interest and we haven't seen that with the cabinet nominees.  And the onus is not on the Democrats to prove that.  The onus is on this administration.  Quite frankly, the Tea Party --

(CROSSTALK)

MACCALLUM:  You know, Chuck Schumer came, you know -- said in a sound bite that we have from a while back, you know, look, you have to respect the picks of the president.  That's the way he felt when President Obama was there.

You know, so all of this pushing back and all of this resistance may not reflect well with your voters in the long run.  I mean, Jeff Sessions is, you know, 99 percent about to be confirmed in this spot.  So, I mean, at some point, does this resistance fall -- reflect really poorly on them?

JAWANDO:  You know, I was in the Senate during the Tea Party movement.  And one of the best lessons that I think Democrats are paying attention to and watching progressives all over the country is how the Tea Party movement turned into the Tea Party caucus that then has affected everything from budget negotiations to who is actually in Senate leadership, Senate and House leadership.

And I think that's what you are seeing from progressives all over who were saying, we want to make sure that this government represents all of us.  Not just some of us, not just the one percent, not the wealthy billionaires and millionaires, but that speaks to everyone and that's really what the majority is saying.

(CROSSTALK)

MACCALLUM:  You know, Democrats are saying Republicans thought them all these tricks over the last eight years and they learn them well.

(CROSSTALK)

FLORES:  Well, and that's frankly not what any of this is about.  This is about the Democrats refusing to accept that Donald Trump won the president.  It's why they won't confirm his picks.  It's why they wouldn't meet with the nominee Gorsuch for his Supreme Court nomination.  Any chance they get, they wish that it could be November 7th again and that they could redo this election.  But the American people voted and they voted Donald Trump into the White House.  So all of this effort isn't going to work and they need to move on.

MACCALLUM:  And Sarah Isgur Flores, thank you very much.  The votes are being tallied as we speak.  And we expect the final results on this vote any moment now.  We're going to come back to that.

Also, we'll get new reaction on the silencing of Elizabeth Warren.  Who won in the end?  Warren or the G.O.P. senators who reprimanded her? Dr. Charles Krauthammer and Karl Rove coming up next.

(COMMERCIAL BREAK)

MACCALLUM:  Breaking tonight.

Big news.  We are just moments now from the final tally on the nomination for Senator Jeff Sessions for attorney general.

From the state, Democrats have attacked the Sessions pick from the get-go.  And as we mentioned, one of the big controversies still echoing across Washington tonight involves Senator Elizabeth Warren.

In a rare move that was taken by her G.O.P. colleagues last night to block her from any of the Sessions debate.  It came after she broke Senate rules of decorum by reading a letter that described Senator Sessions as, quote, "a disgrace."

(BEGIN VIDEO CLIP)

SEN. ELIZABETH WARREN, D-MASSACHUSETTS:  He is, I believe, a disgrace to the Justice Department.  Those were the words of Senator Ted Kennedy.

Coretta Scott King also wrote to the Judiciary Committee.

A person who has exhibited so much hostility to the enforced of those laws.

MITCH MCCONNELL, R-KY, SENATE MAJORITY LEADER:  The senator is reminded that it is a violation of rule 19.

WARREN:  Mr. President, I don't think I quite understand.  I'm reading a letter from Coretta Scott King.

MCCONNELL:  Not necessarily what you just shared.  However, you stated that a sitting senator is a disgrace to the Department of Justice.  The senator will take her seat.

(END VIDEO CLIP)

MACCALLUM:  That was the scene last evening.  But we have breaking news right now.  We can report that Senator Jeff Sessions appears to have the vote, the 51 votes that he needs to be confirmed by the full Senate as the attorney general of the United States in the Trump administration.  So we will keep a close eye on that as that process continues.  But he does appear to have the 51 that is necessary to confirm him for that position, making him the six person to pass that threshold for the Trump administration out of 15 and the remaining spots of the cabinet will be nine.

Joining me now, Dr. Charles Krauthammer, syndicated columnist and Fox News contributor.

Charles, good to see you this evening.  Welcome.

CHARLES KRAUTHAMMER, FOX NEWS CONTRIBUTOR:  Nice to be here.

(CROSSTALK)

MACCALLUM:  Your thoughts on what we are seeing, we are witnessing here and also on the Elizabeth Warren moment that we just all listen to?

KRAUTHAMMER:  Well, I have a piece of breaking news.  The sun will rise in the east tomorrow.

Look, everybody has known that Sessions was going to be confirmed.  What we saw over the last 24 hours or so was Kabuki Theater.  The Democrats are completely powerless.  So, they are trying to get attention and they are also trying to placate a very agitated base that has not recovered from Election Day.

It's still -- it has occasional remissions, but the anxiety and the depression are still there.  So they have to appease them.  But this was all for show.  And what we saw as a part of that show was Elizabeth Warren being quieted and being essentially shut down by the G.O.P., which I thought sort of helped everybody.

It sure made her -- it made her day.

MACCALLUM:  Yes.

KRAUTHAMMER:  It gave her tremendous attention.  Probably a lot of cash for 2020.  And for Republicans, they didn't look that good.  But they have got the majority, they're going to get the cabinet, they're going to get their Supreme Court nominee.

And if you are looking at this nefariously, and I think with Mitch McConnell, you've got to assume that he usually looks two steps ahead.

Who would you rather have as the front runner for the Democrats than Elizabeth Warren?  If you can give her a gratuitous boost, why not?  If the Democrats run a left-wing Democrat, they are more likely to lose than if they run a centrist.  So I don't think -- I think it is win-win all around here.

MACCALLUM:  So you think this is a very crafty move, even if it made him look bad temporarily by Senator McConnell?

I just want to put up a tweet, because you mentioned the prior election, and Elizabeth Warren may be thinking as you point out, Charles, quite clearly about the next election and getting herself ready for that.  She's done a ton of fundraising after what happened last night.  And here, Hillary Clinton sent out this tweet and she is quoting Mitch McConnell.

"She was warned.  She was given an explanation.  Nevertheless, she persisted."  And then Hillary Clinton add to the bottom, "So must we all."

Charles?

KRAUTHAMMER:  Oh my.  Well, if you are going to rely on an endorsement from shall we say the most shocking loser except for the Atlanta Falcons in our lifetime, I don't think you are off to a good start.

This is sort of the old theme, the Republicans and the war on women.  You know, a gentleman telling a woman to be quiet.  They play this card every time.  It never works.

So if they want to exhaust themselves, the Democrats on playing that card, be my guest.

Whether McConnell was actually thinking of a three cushion shot here, I have no idea.  But I would like to think he was.

MACCALLUM:  Charles, thank you very much.

KRAUTHAMMER:  My pleasure.

MACCALLUM:  Senator Warren isn't the only lawmaker unlikely to get behind President Trump and his cabinet picks anytime soon.

A new online poll from "Politico" shows a majority of Democratic voters are giving elected officials the green light to obstruct at every single turn along the way here.

Joining me now, Karl Rove.  He is former deputy chief-of-staff under President George W. Bush and a Fox News political contributor.

And, Karl, I know, you know, we're going to listen in here.  One second.

(BEGIN VIDEO CLIP)

(APPLAUSE)

UNIDENTIFIED MALE:  Majority leader, I move to reconsider the vote on --

(CROSSTALK)

I move to reconsider the vote.

UNIDENTIFIED MALE:  The question is on the motion, sir.

UNIDENTIFIED MALE:  I move the table to motion reconsider.

UNIDENTIFIED MALE:  The question is on the motion to table.  All those in favor say aye.

UNIDENTIFIED MALE:  Aye.

UNIDENTIFIED MALE:  All those oppose say no.

UNIDENTIFIED MALE:  I ask unanimous consent.

UNIDENTIFIED MALE:  The ayes appear to have it.  The ayes do have it.  The motion is agreed to.

UNIDENTIFIED MALE:  Ayes unanimous consent.  A mandatory quorum will be waived.

UNIDENTIFIED MALE:  Is there objection?

Without objection.

(END VIDEO CLIP)

MACCALLUM:  All right, let's bring in Karl Rove for comment on this. Former deputy chief-of-staff as we said under President George W. Bush.

Karl, you look at that vote.  It's pretty close.  Tillerson's vote was also pretty close and I'm reminded of the fact that Senator Sessions voted to confirm Eric Holder for President Obama.  And those votes were much stronger, with much less opposition.

KARL ROVE, FORMER DEPUTY SENIOR ADVISOR AND CHIEF-OF-STAFF TO G.W. BUSH: Yes.  Look, I thought one of your previous guests who sort of blamed this on the Republicans forgot the fact she said the Tea Party set this in motion.

When President Obama came in, virtually every one of his nominees was supported, many of whom in voice votes.  The president was given the due deference that any president deserves to put his cabinet in place.

The degree of partisanship that is being exhibited now is beyond belief. It's not helpful to the process.  In the short run, I think it's helpful to the Democrats, particularly the left-wing of the Democrats, as Charles said but it's also helpful to the Republicans.  But, ultimately, this just leads to more poisoning of the water, more poison into the atmosphere and more difficulty bringing our country together.

MACCALLUM:  It's pretty poisonous, to be sure.  And to that, I want to play for everybody at home and for you, Karl, this from Senator Tim Scott.

He stood up and read some of the tweets that he received for supporting Senator Jeff Sessions.

Watch this.

(BEGIN VIDEO CLIP)

SEN. TIM SCOTT, R-SOUTH CAROLINA:  A white man in a black body.  You are a disgrace to the black race.  How does a black man turn on his own?

Senator Tim Scott is not an Uncle Tom.  He doesn't have a shred of honor. He is a house negro like the one in "Django."

I'm a complete horror.  A black man who is a racist against black people, a big Uncle Tom piece of fertilizer.

Think for yourselves.  You are a disgrace to your race.

I left out all the ones that used to be N-word.  Just felt like that would not be appropriate.

(END VIDEO CLIP)

MACCALLUM:  Sad, and that's where we are, Karl.

ROVE:  And you know what's amazing to me is the characterization of -- look, I understand Coretta Scott King's letter.  Let's talk about that case for a minute.

A group of local black elected officials in Perry County, Alabama complained to the U.S. attorney about fraud because in this county of roughly 15,000 people, more people had cast absentee ballots than in the entire city of Birmingham, which has 700,000 people.

And there is pretty widespread sense that in this largely black community, that black elected officials had had an effort led against them by other blacks to play around with the absentee ballots.

Now one of the three people charged was a long-time associate of the King family.  And I can understand Coretta Scott King coming forward and at the time defending her family friend.

But the fact of the matter is, is that this was not a case involving white versus black or black versus white.  This was an overwhelmingly black county with black elected officials who felt that they had been the victims of election chicanery by other blacks and the U.S. attorney had an obligation to investigate and file charges if need be.

MACCALLUM:  Karl, thank you very much.  Karl Rove joining us tonight.

So we are also tracking the legal fight over the president's executive order restricting travel from seven countries and identified as hot beds of terror.

These three judges hold that fate in their hands tonight.  And while no decision is set for right now, an announcement from this channel is expected really at any time, as the president's overhand, as the president's decision order hangs in the balance, Mr. Trump is calling on the courts to do the right thing.  Here he is talking about that.

(BEGIN VIDEO CLIP)

DONALD TRUMP, PRESIDENT OF THE UNITED STATES:  And I don't ever want to call a court bias.  So I won't call it biased.  And we haven't had a decision yet.  But courts seem to be so political.  And it would be so great for our justice system if they would be able to read a statement and do what is right.

(END VIDEO CLIP)

MACCALLUM:  To Trace Gallagher now, in our L.A. newsroom.

Hi, Trace.

TRACE GALLAGHER, FOX NEWS CORRESPONDENT:  Hi, Martha.

When you consider national security, it all comes down to the vetting process for refugees and visa applicants.  And Homeland Security Secretary John Kelly says the problem is the U.S. government has very little information to work with.

He says customs agents are forced to rely mainly on background questions and documentation.  And when you are dealing with failed states like Syria and Somalia, the documentation, including passports and driver's licenses, is often inaccurate.

So when you ask someone what town they are from and what they do for a living, it comes down to the honor system.  And Secretary Kelly says, when you are dealing with national security that is not good enough.

One idea being bandied about by DHS is the ability to fully check a refugee or visa applicant's social media footprint.

Listen.

(BEGIN VIDEO CLIP)  

JOHN KELLY, SECRETARY OF HOMELAND SECURITY:  If they come in and say what we want to say, for instance, which web sites you visit, and give us your passwords, so that we can see what they do on the internet.  This might be a week, might be a month.  It might take some time for us to vet.  If they don't want to give us that information, then, they don't come.  We may look at there -- we want to get on their social media with passwords.  What do you do, what do you say?  If they don't want to cooperate, then, they don't come in.  

(END VIDEO CLIP)  

GALLAGHER:  Secretary Kelly says looking at phone records and financial records might also be a possibility.  Back in December, the Obama administration began asking foreign travelers to voluntarily provide their Facebook, Twitter, and other social media accounts upon arrival to the U.S. They were not asked for passwords but it still drew big-time opposition from privacy advocates and tech giants like Facebook and Google, who said it threatens free expression.  But if you look back at the San Bernardino terrorists, private Facebook messages sent by the wife Tashfeen Malik years before the attack did indicate that she had been radicalized and she was not from one of the seven mostly Muslim countries included in President Trump's temporary travel ban.  Experts also point out, fake social media accounts and private accounts are very easy to create and that the bad guys would likely find a way around whatever vetting policy DHS puts in place. Martha.  

MACCALLUM:  Thanks, Trace.  Joining us now with their take, Republican Congressman Sean Duffy with one of President Trump's first supporters in congress, Robert Zimmerman, a Democratic Strategist and DNC committee member, gentlemen, thank you for both being here tonight.  

REP. SEAN DUFFY, R-WISCONSIN:  Good evening.  

ROBERT ZIMMERMAN, DEMOCRATIC STRATEGIST:  Martha.  

MACCALLUM:  I want to get first to this piece of news that happened a little while ago.  It has to do with Judge Gorsuch, who made some comments about President Trump's comments on the judiciary.  Here is what Senator Blumenthal, who spoke with Judge Gorsuch today, had to say about their discussion.  

(BEGIN VIDEO CLIP)  

SEN. RICHARD BLUMENTHAL, D-CONNECTICUT:  He certainly expressed to me that he is disheartened by the demoralizing and some comments made by President Trump about the judiciary.  

(END VIDEO CLIP)  

MACCALLUM:  Representative Duffy, what do you think about that?  Is that a problem for you?  

DUFFY:  First off, I think this is to the lens of the Democratic senator.  

MACCALLUM:  The comment was confirmed by Judge Gorsuch and the spokesperson as well.  

DUFFY:  Ok. So with that said, I don't want our president to go after the courts, whether it is Donald Trump going after the courts or whether it is Barack Obama, who went after the Supreme Court on a State of the Union in 2009 or 2010.  I think it is counterproductive, especially when you have a case in front of the court.  I think what Donald has done very well today is he actually laid out the law that the court is supposed to be considering in regard to his temporary pause.  I think to educate the American people about what he is doing, and why he is doing it, and why he is legally right, is incredibly important.  None of us should be a surprise, Martha, Donald Trump, one of his key campaign issues was I am going to go through an extreme vetting process to make sure I keep you and your families safe, to make sure terrorist don't infiltrate our refugee program.  

MACCALLUM:  Laura Ingraham who is a big supporter of President Trump had this to say in a tweet regard to Judge Gorsuch.  She was none too happy about hi comment.  She said, Judge Gorsuch's comments about President Trump's tweets are concerning.  Judges William Pryor and Hardeman know better, doesn't vote well.  Robert, what do you think of this?  

ZIMMERMAN:  That is Laura Ingraham being what she is.  It's just a right-wing talk radio host.  Sadly, she is too much support among too many Republican members of congress and those are that are more concerned with partisan talking points.  

MACCALLUM:  She is merely expressing her opinion.  And that of course is her comment and in her mind, she is saying that she thinks this is problematic for him as the nominee.  That is what I'm asking you to comment on.  

ZIMMERMAN:  Quite frankly, Martha, I think it is to his credit that he spoke up and defended the integrity of the judiciary.  

MACCALLUM:  It may work well with him in the confirmation hearing.  

ZIMMERMAN:  Martha that is not going to be enough.  The bigger issue, Martha is the fact that President Trump has pursued this strategy of insulting judges that disagree with him, actually attacking justice - Judge (inaudible) with such vile language, the Speaker of the House Paul Ryan said his language was a textbook definition of racism.  The sad aspect of it is, to paraphrase Donald Trump.  Even a bad high school student would know the separation of powers in a system of checks and balances in our country.  At the end of the day --

MACCALLUM:  Chris Stirewalt's talked before about the senators who are fragile snowflakes.  I just want to throw the idea out there for a moment, that perhaps these judges are also human beings and that in some cases, things do become politicized.  And that is what President Trump is commenting on here.  Do we live in a world where we can't throw any -- we can't say anything about judges?  Listening to that call last night, might have come away with the same response?  

ZIMMERMAN:  Martha, when he refers to a judge as a "so-called judge" or he uses racist language to describe another judge.  He is not making an intellectual argument.  He is obviously trying to stoke fear and play and create panic.  

MACCALLUM:  As you are doing right now.  Representative Duffy, what do you think?  

DUFFY:  Donald Trump is Donald Trump.  When he disagrees with people, for good, bad, or ugly, he goes after them.  I just think he have to realize that he has a different position today as president, a great balance between the president and to the executive branch in our courts.  As Judge Gorsuch thinks that he is going to get any love from the left, by making comments like this about President Trump, he is sorely mistaken.  If he is going to get eight senators to vote for him, the left is going to absolutely wild.  I think he should realize who his friends are and be cautious about what he says about the man who gave him the nomination.  

MACCALLUM:  Gentlemen, thank you.  Also tonight, President Trump moves to defend his daughter after a growing number of retailers decide to dump her brand.  Plus, Missouri becomes the latest state to go head-to-head with the unions.  Is this another Wisconsin?  And Missouri governor next, on why he has decided to take on the unions and his state.  

(COMMERCIAL BREAK)  

MACCALLUM:  A live shot of the senate where they have just confirmed Senator Jeff Sessions of Alabama, who will be sworn in soon, we are told, as the next Attorney General of the United States.  He takes over the job that was held by Loretta Lynch and Eric Holder and no doubt a very different representative as the Attorney General under the Trump administration.  We see everybody milling around as they get ready for confirmation, also dealing with Tom Price nomination which is next up on the list.  We will take you back there as news demands.  

In the meantime, also tonight, President Trump has made it a point to sort of play nice with the unions.  Some of the leadership was invited to the White House right away after he was sworn in.  Many of whom who were surprised in terms of the support for his candidacy last November, which is usually mostly Democratic in its support, but could that be at odds with some of the battles we are seeing on the state level?  One of them came and Missouri, as the "show me" state became the 28th right-to-work state in this nation.  Here with me now, the manager assigned that legislation into law, the new Missouri governor elected in November, Eric Greitens.  Good to have you here, governor.  Welcome.  

GOVERNOR ERIC GREITENS, R-MISSOURI:  Martha great to be on with you, thanks for having me.  

MACCALLUM:  You have a right-to-work state which means that if you are in a union, basically you don't have to you pay your dues or write your check for a political agenda that you might not agree with politically, right?  

GREITENS:  That is exactly right.  Right to work is really simple.  It just says that anyone in the state of Missouri can work at a job without being forced to pay dues to a union that they might disagree with.  The reason why this is so important for us to get done is that it leads to more jobs.  Martha, I am a conservative outsider, came to Jefferson City to fight for the people of Missouri.  We are willing to take on these fights because it will lead to more jobs and bigger paychecks for the people of the state of Missouri.  

MACCALLUM:  Right, you remember what happened with Scott Walker, he ended up having a recall vote, and people were climbing in and out of the windows of the state house.  Are we likely to see the same situation in Missouri?  

GREITENS:  I can tell you for sure we have had a tremendous battle here in the state of Missouri.  During the campaign even, we had union bosses that spent millions of dollars attacking me.  They attacked my services as a Navy Seal.  They attack the work that I have done with veterans.  They will continue to attack us, but look, I am a navy seal.  I am a fighter.  I came to Jefferson City to fight for the people.  If I have to take on the union bosses, we are going to do that.  We are going to take on the trial lawyers.  We will take on the special interests, the career politicians, the political insiders.  We are putting an end to the politics as usual. So we can take Missouri and a new direction and make sure we get results for the people.  

MACCALLUM:  Pretty hard to imagine, someone actually going after someone because of their service as a navy seal, but apparently they did.  You saw the president sort of embracing the Union leadership, there was a lot of blue-collar crossover in the selection, which is very interesting.  A lot of Republicans want to build on that strength.  Are you working against that?  

GREITENS:  We had tremendous support from people all over the state of Missouri who recognize that our agenda represents hope to make sure that we've got more jobs and higher paid here in the state of Missouri.  We just went out and made our case to people.  It is one of the reasons why we had so much support from people all over the state of Missouri.  We pointed to that some of our fellow Midwestern states, Indiana, Michigan, which both signed right to work and have been leading the country a new factory job growth.  We let people know that folks and right-to-work states today are earning more money than people in the state of Missouri.  The fact is this will lead to more jobs and higher pay and it is one of the reasons why the people are smart and they recognize that some of the elites, whether they are union bosses, special interest insiders, career politicians they have been pushing a lot of falsehoods.  People expect us to fight for them. That is what we are doing.  We are really excited about the tremendous support that we have built for us across the state of Missouri.  

MACCALLUM:  Thank you very much.  Good to have you here tonight.  

GREITENS:  My pleasure.  Thanks for having me on.  

MACCALLUM:  Also, tonight, President Trump moves to defend his daughter after a growing number of retailers decide to dump her brand.  He tweeted this.  "My daughter Ivanka had been treated so unfairly by Nordstrom's. She is a great person, always pushing me to do the right thing.  Terrible!" We will see what happens to that when we come back.  

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MACCALLUM:  Developing tonight, retailers are taking on Ivanka Trump and backing off her clothing and shoe brand.  Nordstrom's has officially severed ties with the first daughter's product line and other retailers, Neiman Marcus, belle, have also pulled their products from their web sites. Marshals and T.J. Maxx also created controversies when they told employees to throw all Ivanka Trump signs in the garbage.  Here now is Katrina Pierson, America First Policy Spokesperson and former Trump campaign spokesperson and Jessica Tarlov Democratic poster and Senior Director Research at Bustle.com.  Ladies good to have you here tonight, Kat, what you make of it?  

KATRINA PIERSON, FORMER NATIONAL SPOKESPERSON FOR THE TRUMP CAMPAIGN:  That clearly, there is politics involve here.  I can tell you as a consumer and someone who is familiar with Ivanka Trump's brand.  That it is doing quite well.  Based upon the statement they put outcome of the brand is actually expanding, I have no reason to doubt that.  There are many young women in the workplace, working women like myself, who appreciate quality, classy business apparel at an affordable price.  The brand hasn't changed, Martha. What has changed is the political activism on behalf of CEO's or retailers in this case, something that this cycle has seen that we haven't seen in the past.  

MACCALLUM:  It does seem very coincidental.  I mean I can't really understand any retailer deciding not to sell something if people want to buy it.  It doesn't make any sense.  You have all of these people sort of piling on simultaneously, it does smack of some sort of political message that they are trying to send.  

JESSICA TARLOV, DEMOCRATIC STRATEGIST:  That is a different issue than what Katrina is talking about.  I think the American public was sending a message that they don't want to support Ivanka Trump or by extension, her father there.  But this is free-market capitalism.  They should be celebrated in this country.  Donald Trump claims he is a free-market capitalist actually.  So, I don't understand what the problem here. Americans were not showing up to buy these products.  Why should stores continue to carry them when they are not making a profit?  

PIERSON:  That is not true.  

TARLOV:  Nordstrom released their numbers and they showed the downward spiral.  Ivanka, the company commented that she was notified in early January of the fact they were going to sever ties with her brand.  

MACCALLUM:  What about her commitment?  Ivanka Trump said that she was removing herself from the company so that she could go to Washington.  Her husband is a close advisor to the president, obviously.  The president has also said he is going to step away from his interests.  This tweet raised a lot of eyebrows are people who said, wait a minute, I thought they weren't involved in the company anymore.  

PIERSON:  She is removing herself from the company.  The president definitely tweeted to defend his daughter from something that is more of a political activism, not necessarily because of the sales, as I said before.  The brand is doing very well on the company says that they are even expanding.  

TARLOV:  But at T.J. Maxx --

PIERSON:  A lot of people are buying the brand, but more importantly, Ivanka Trump is the daughter of the president of the United States.  We have seen her attacked publicly.  We have seen her attack when she has been privately with her family, and because there is a pile on, Martha.  We talked about timing here.  It really is uncanny how these retailers, with most retailers, by this time already purchased from their vendors for this season.  Suddenly, the president signs a ban, a travel moratorium, and suddenly, now, her brand is not doing so great?  That doesn't make sense.  

TARLOV:  I love that you used the word "ban" since you denied for so long that it was a ban.  So that is thrilling here.  I think there has been a hit to her sales as each of these companies has discussed.  We also should get to the fact that Donald Trump is meddling in the free market, like he did with Carrier, like what he did with Lockheed Martin, like he did with Boeing.  The administration wants us to celebrate when there are more jobs created, the 700 from the Carrier deal.  I want every American to have a good, high paying job, but this is an abuse of the presidency.  They have said this, as well.  What you are seeing is free-market capitalism that works.  That should be celebrated on both sides of the aisle.  

MACCALLUM:  People want to choose.  

PIERSON:  The American people aren't speaking.  This is somebody that did a hashtag out of San Francisco.  This is not about women, not about empowerment.  

MACCALLUM:  Good to see you both.  So we have more news breaking on Capitol Hill.  Senator Sessions' decisions, you have heard, he is now addressing some of the people who were describing him as a disgrace 24 hours ago, back on that and more news on Tom Price, as well, in a moment.  

(COMMERCIAL BREAK)  

(BEGIN VIDEO CLIP)  

JEFF SESSIONS, ALABAMA SENATOR AND CHAIR TRUMP NATIONAL SECURITY ADVISORY COMMITTEE:  I want to thank those of you who supported me and had confidence in me in moving this far.  I want to thank President Donald Trump.  He believes in the rule of law.  He believes in protecting the American people from crime and violence.  He believes that a lawful system of immigration serves the national interest.  And within bounds, those are things that may come up from time to time, come before the office of Attorney General.  I look forward to lawfully and properly advancing those items and others.  

(END VIDEO CLIP)  

MACCALLUM:  Senator Jeff Sessions, just moments ago on the U.S. Senate floor bidding farewell to his senate colleagues and following his confirmation as at the next attorney general.  And we just learned that he is expected to be sworn in tomorrow.  Furthermore, we go to our Chief National Correspondent Ed Henry, still live with us on Capitol Hill, Ed?  

ED HENRY, SENIOR NATIONAL CORRESPONDENT:  Martha good to see you, in fact Jeff Sessions delivering that farewell address, as we speak on the senate floor.  Interesting, a moment ago he was talking about how he has always been courteous to colleagues, may be a not-so-subtle shot to Elizabeth Warren and other Democrats who are accusing him of being a racist.  Jeff Sessions supporters noting he is someone who is Attorney General of Alabama years ago, desegregated the schools in that state and also, prosecuted a KKK leader, a lot of that forgotten and this fiery debate.  Bottom line, he was confirmed, 52-47, obviously, a party line vote.  Only one Democrat, Joe Manchin of West Virginia, supporting him, but just moments ago, Manchin revealing, while he voted yes on Sessions, he'll vote no on Tom Price.  The presidents picked to be held in Human Services Secretary Democrat have concerns about him buying healthcare stocks among other things, because of these delaying tactics.  Price will finally get a vote.  Yes 2:00 a.m. Friday morning.  Martha.  

MACCALLUM:  Ed, thank you very much.  

HENRY:  You too.  

MACCALLUM:  Senator Sessions has spent a great deal of his time on the issue of immigration.  It has been what said about what he said in the past and what he believes.  So, his own words are our quote of the night.  He said this.  "Republican voters believe we should have a lawful system of immigration that serves a national interest.  It if they don't believe we should enter into, commits the United States to further globalist policies that diminish the sovereignty and freedom of Americans to act in their own interests."  He will lead the Justice Department now under President Donald Trump.  Thanks for joining us on another busy night.  Stick around.  We'll see you tomorrow.  Have a good night everybody.  

"The O'Reilly Factor" is on tonight.  

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