First 100 Days

Rep. Gowdy: Trump's executive order is 'easily remedied'

This is a rush transcript from "The First 100 Days," February 14, 2017. This copy may not be in its final form and may be updated.

MARTHA MACCALLUM, FOX NEWS HOST:  Breaking tonight, as Washington turns on one of their own, the Russians perhaps taking advantage of the distraction. In recent hours, they have moved a spy ship just off the U.S. Coast, buzzed a U.S. Destroyer within 300 feet and deployed cruise missiles in defiance of a cold war treaty.  Perhaps, testing the new president while the White House is mired in its own mess tonight.

I'm Martha MacCallum and this is day 26 of "The First 100 Days." General Jack Keane here in a moment on that emerging part of the story.  But first, to the Machiavellian day in D.C., an important reminder about the full picture of this story.

NSA Director Retired General Michael Flynn lost a battle that began last November right after the election.  When Democrat said top Intel officials believed the Russian leaks of Clinton crony emails were to blame for their election loss.  To punish them, President Obama levelled sanctions and expelled Russian diplomats.  But President-elect Trump and team pushed back.

They argue that, no, they won by hard campaigning and winning over Democrats.  Now, we know, intelligence operatives taped sensitive conversations between General Flynn, then the incoming NSA head and the Russians, talking about the sanctions.  We don't know what was said because no one has seen the transcripts of those.

But we do know that they were revealed to the White House by then acting AG Sally Yates, remember her?  She has recently been fired by the Trump White House over the extreme vetting order.

The DOJ at the time was concerned that Flynn could be blackmailed by the transcripts and their contents, which would leave him vulnerable and the White House, as well, they feared.  But the story about the phone call transcript was also leaked to somebody by -- to the press.  Perhaps, someone who wanted Flynn out and reportedly many people did.

So now, there is word Vice President Mike Pence, who defended Flynn, was not in the loop on all that the White House knew.  All those straws broke the camel's back and late last night, it was over for the new NSA chief.

So we will be joined in moments by Congressman Peter King of the House Intelligence Committee on where this goes from here because this is far from over.

But, first, our chief intelligence correspondent Catherine Herridge live in Washington.  She has some breaking news on this from the get-go.

Catherine?

CATHERINE HERRIDGE, FOX NEWS CHIEF INTELLIGENCE CORRESPONDENT:  Well, thank you, Martha.  A Democratic source said tonight that the trouble may go beyond Flynn as a government official confirmed that the former national security advisor was interviewed by the FBI in late January.

Flynn to a Fox News this morning that he believes the leaks were targeted, coordinated and a possible violation of the law.  The president had nothing to say today about firing his national security advisor, but his press secretary revealed that Lieutenant General Michael Flynn had lost the president's trust.

(BEGIN VIDEO CLIP)

SEAN SPICER, WHITE HOUSE PRESS SECRETARY:  We've been reviewing and evaluating this issue with respect to General Flynn on a daily basis for a few weeks, trying to ascertain the truth.

We got to a point, not based on a legal issue, but based on a trust issue, where the level of trust between the president and General Flynn had eroded to the point where he felt he had to make a change.

(END VIDEO CLIP)

HERRIDGE:  Intelligence leaks about the Flynn phone calls with the Russian ambassador are problematic because there are special protections to shield Americans when the intelligence community picks up their conversations while monitoring a foreign national.

A leading Republican believes those safeguards were apparently violated and wants the FBI to review the leaks.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE:  If you look at the fact that an American was having his phone call listen to by the government and then leaked to the press, if the shoe was on the other foot here and this was a Democrat, you can imagine the Democrats in the House and the Senate would be going crazy if this happened to someone within the Obama administration.

(END VIDEO CLIP)

HERRIDGE:  But Democrat says the leaks are beyond the point and are calling for FLYNN to publicly testify.

(BEGIN VIDEO CLIP)

ELIJAH CUMMINGS, D-HOUSE OVERSIGHT COMMITTEE RANKING MEMBER:  I know he is now resigned, but he is not going to get off that easy.

I believe we need to hold a public hearing with Flynn to get to the bottom of this.

(END VIDEO CLIP)

HERRIDGE:  But two congressional sources emphasized to Fox tonight that there is a very small universe of people who had access to the intelligence and are likely behind these leaks.

Identifying Flynn on the calls would have required approval from the intelligence courts, as well as senior Obama administration officials, since the calls were made in December -- Martha.

MACCALLUM:  Catherine, thank you.

HERRIDGE:  You're welcome.

MACCALLUM:  So here now, Republican Congressman Peter King, who is a member of the House Intelligence Committee.

Congressman, good to have you here tonight.

PETER KING, R-HOUSE INTELLIGENCE COMMITTEE MEMBER:  Thank you, Martha.

MACCALLUM:  So we've laid it all out here essentially.  What is your thought on really, you know, which side do you come down on?  Is it more important, the substance of what may have happened or transpired in these discussions between General Flynn and the Russian representatives, or the fact that this information got out and was released?

KING:  Martha, I would say it's all important.  I wanted to say at the start that I've had the opportunity to work with General Flynn.  He used to testify before the Intelligence Committee, when he was head of the Defense Intelligence Agency, and he more than anyone in the country was alerting the nation to ISIS.  Unfortunately, the Obama administration was not listening to him and he was pushed out.  But he is a hero and he is a patriot.  And what's happened in the last few days is really sad.

Now having said that, I was at the White House today for a bill signing.  I was talking to the president and the vice president.  And, basically, he felt that General Flynn, for whatever reason, did not tell the vice president the full truth.  And because of that, there was this breakdown in trust between the vice president and then also the president and General Flynn.

So, I guess, at that stage, the president felt he had no choice.  That's what he told us today.  And, again, it's unfortunate.  And you go back to the question of the leaks that is a criminal action.

I mean, to have a wiretap of anyone, a foreign national and to have an American come on that, an American citizen come on that tape, there's also precautions in the law, how that person's identity has to be masked, how it can't be made public.  And yet, it was not only made public, it was given -- it was leaked to a newspaper at a time -- the national security advisor, being taped.  And, again, that could have been a legal wiretap aimed at the Russians.

And yet to have that leak, to violate the law is clearly wrong.  And, again, more should be said about that.  So both.  That should be pursued right to the end, to find out who leaked that and take strong action against them.  Also, obviously, the whole situation with General Flynn, you know, will also be looked into.

MACCALLUM:  Yes.  In terms of that, do you -- what do you think is the next step is?  Do you believe that he will be questioned by the FBI?  That he will potentially be brought before Congress?  And do you think the transcripts will be released to the public so that everyone can see exactly what was said there?

KING:  Well, I don't see how those transcripts can be made public.  Certainly, you know, the FBI would probably stop that if it was part of an investigation, an active investigation.  I don't see how they can be made public.

Also, I assume General Flynn maybe could ask to have them released.  I don't know.  But, again, if this is a wiretap of a foreign national, a foreign government, and how that gets released, again, this is breaking all sorts of precedent.

As far as what should happen, the intelligence community has been investigating Russian activity going back almost a year.  When the Obama administration was ignoring it, (INAUDIBLE) and Nunes and the intelligence community was going ahead, investigating Russian activity.

And so now we are involved in a full investigation, certainly, of the intelligence community report that come out back in December and January about the election, where our staff has gone through all -- much of the documentation is going to be made available to go through that.  And, obviously, if something comes up on General Flynn that should also come within the purview of the intelligence committee.

But we can't be running off investigating everything that happens to come up.  But, again, if something leads to General Flynn, obviously, I think that will become part of the investigation.

MACCALLUM:  Congressman King, thank you very much.

KING:  Thank you, Martha.

MACCALLUM:  So here with more, Pete Hoekstra is former chairman of the House Intelligence Committee and a former national security advisor to the Trump campaign.  And Julie Roginsky is Fox News contributor and a Democratic analyst.

Welcome to both of you.

JULIE ROGINSKY, FOX NEWS CONTRIBUTOR:  Good to see you.

MACCALLUM:  I would like to address the substance, as we know it, of what happened here in terms of his communication with this Russian official.

And Pete Hoekstra, let me start with you that.  There is something called the Logan Act, which basically says that a citizen is not allowed to contact a foreign government and make any sort of agreement with them.

Do you think that a violation of that happened here?  Or do you think that as the incoming NSA director, he had every right to discuss things with Russian officials?

PETE HOEKSTRA, FORMER HOUSE INTELLIGENCE COMMITTEE CHAIRMAN:  I think as an incoming national security advisor to the president, you know, he should be having these conversations with the Russians, with the Chinese, with the British, with the French, the Germans, Israelis.

It's his job because on January 20th at noon, his boss is going to become president of the United States of America and you just can't start at that point in time in terms of reaching out to foreign governments.

Foreign governments know that it's the incoming administration.  He can't be negotiating and making deals with them at this point in time.  Everybody knows what the status is.  I don't see this as a violation of the Logan Act.

As a matter of fact, no one has violated or been prosecuted for violating that law since it's been in effect since 1799. Flynn was doing exactly what the American people and what I think his boss wanted him to do, start reaching out to foreign governments, and lay the groundwork, the framework, for when I become president.

MACCALLUM:  He was part of the transition team at that time and it's worth pointing out as well that there was no defense secretary at that moment. There was no secretary of state at that moment.  This is an unconfirmed position.  So he truly was one of the only people who could begin to sort of reach out and make relationships, create relationships, with these governments.

But do you agree with that?  Is that a problem?

ROGINSKY:  Well, if he had said that and consistently said that I could see that that would be an argument that I could support.  I mean, obviously, the congressman is right.  You actually have the ability, I don't know about the Logan Act, but he had the ability to speak to the Russian ambassador.

What I find fascinating is any details that we may have had about him discussing sanctions which at the time and continue to be a policy of the United States that were under Barack Obama.  They continue to be under President Trump today.

So if he was discussing sanctions as we now know he was with the Russian ambassador, the details of which are unconfirmed, but if he was discussing potentially lifting those sanctions, he was discussing something that the administration at the time had just put in place.  And that becomes much more problematic because you would agree, we only have one president, one administration at a time.  And on January 20th at noon, it became Donald Trump's administration.  But at the time he was having this discussion, it was still Barack Obama's.

So it is inconceivable to me as to why he would mislead the vice president about this.  Why he would mislead the American public about this. Of course, Sean Spicer to do the same, as opposed to saying exactly what was just said, which is that he was speaking to the Russian ambassador about sanctions -- not about sanctions, but about a whole host of issues and leave sanctions out of it or the lifting of sanctions out of it.  We don't know exactly what he was saying to him about sanctions.

MACCALLUM:  Pete Hoekstra, do you think the base of this, there's an argument that's going on in Washington, in the administration, and in the beltway about the dynamic with Russia.  And whether or not it's a good idea to open the door to some sort of relationship, you know, given our history with them.  Is that what this is really about at the heart of it?

HOEKSTRA:  I think that's possibly what the strategy is against Russia. But I think more importantly is what the Trump administration maybe has forgotten is that the day after the election, they started getting into the governing mode and President Obama and the Democrats decided they were going to do everything they could to undermine this administration.

The information that was leaked to the press.  There is only a few people in the Obama administration that would have had access to it -- the director of the CIA, John Brennan.  The director of National Intelligence James Clapper, Vickers.

You know, these are top -- this information is so sensitive, most likely, when I was chairman of the Intel Committee, I would not have been briefed on this information.

(CROSSTALK)

MACCALLUM:  Do you believe that they should be investigated as well.

(CROSSTALK)

HOEKSTRA:  And yet some way it found its way.

MACCALLUM:  --if Michael Flynn is investigated?

HOEKSTRA:  Pardon?  What?

MACCALLUM:  Should they be investigated as well?

HOEKSTRA:  Well, I think they need to get to the bottom of how this kind of information got from that level, the intelligence community and how it made its way into the press.

MACCALLUM:  Very good question.  Thank you, Pete Hoekstra, Julie Roginsky. Glad to have both of you, with me tonight.

ROGINSKY:  Thank you.

MACCALLUM:  So President Trump's search for a new national security advisor now begins.  And we learn just moments ago that he expects to have a name by week's end, which maybe a big clue as to who he is going to pick and we will tell you why.

We're going to talk to General Jack Keane, who's spent four years as chief operating officer of the army.  He will tell us who he thinks should be General Flynn's replacement.

Plus, how is President Trump's travel ban polling with the American public? New Fox News polls on that question before Congressman Trey Gouty joins us with a powerful message with the Ninth Circuit that he wants to deliver right here tonight.

(BEGIN VIDEO CLIP)

DONALD TRUMP, PRESIDENT OF THE UNITED STATES:  We cannot let the wrong people in.  And I will not allow that to happen during this administration.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

MACCALLUM:  Breaking tonight, 26 days into President Trump's presidency and the White House is already searching for a new person in their top ranks.  A new national security advisor.

Sources telling Fox that there are three main candidates in top contention to replace General Flynn following his abrupt resignation last night.  And we should have, we are learning tonight, a decision by the end of the week.

In just a moment, we get reaction from General Jack Keane, former vice chief-of-staff for the United States army.  And we will get his top pick from this group.

But, first, chief national correspondent Ed Henry gets us up to speed on these candidates under consideration.

Hi, Ed.

ED HENRY, FOX NEWS CHIEF WHITE HOUSE CORRESPONDENT:  Good evening, Martha. Good to see you.  The bottom line is the president needs to move quickly. Not just to get past this controversy, but to get the National Security Council up and running at a very dangerous time in the world.  You have the saber-rattling, not just from Russia, but North Korea, the civil war in Syria that continues.

And also, of course, concerns about Iran's nuclear ambitions as President Trump gets to meet with Israeli Prime Minister Benjamin Netanyahu in the next couple of days.

That's why both Sean Spicer and Kellyanne Conway said today a decision by the end of the week.

(BEGIN VIDEO CLIP)

KELLYANNE CONWAY, WHITE HOUSE SENIOR ADVISOR:  We need to move on as a country and get that right in the next phases very quickly.  And indeed, the president will.  The president has already discussed options and he has General Kellogg in there as his acting national security advisor and will be meeting with his team today to move very swiftly.

(END VIDEO CLIP)

HENRY:  Three leading candidates, the top one, we are told, Retired Vice Admiral Robert Harward, a Navy SEAL who served as deputy commander of CENTCOM under General James Mattis, who of course now is the defense secretary.  He went to the Tehran American High School in Iran and speaks Farsi.  You see General David Petraeus, retired general there in the middle.  Of course some of his issues with mishandling classified information could be a problem given what Donald Trump said about Hillary Clinton.

And then, of course, the last person there, you heard General Keith Kellogg, who is the acting national security advisor.

Interesting today, two Democratic leaders on The Hill went after the president by citing a false tweet from general -- from the general who just left.  Watch.

(BEGIN VIDEO CLIP)

CUMMINGS:  Just this morning, Flynn tweeted, and this a quote, "Scapegoat," end of quote.  Scapegoat.  He basically described himself as a scapegoat.

NANCY PELOSI, D-CALI., HOUSE MINORITY LEADER:  I didn't know until I heard from our colleagues that the tweet of General Flynn today was "Scapegoat." Scapegoat.

Do you know what a scapegoat is?  That means in a community, when people want to absolve themselves of guilt, they get a goat and they heap all of the ills onto the goat and then they run the goat out of town.

(END VIDEO CLIP)

A long explanation.  One problem is, General Flynn never tweeted that he was a scapegoat so they later had to apologize.

Martha?

MACCALLUM:  Yes, that's a bit of a problem.  Ed, thank you very much.

HENRY:  Thank you.

MACCALLUM:  So joining me now, General Jack Keane, chairman of the Institute of the Study of War and a Fox News military analyst.

General, good to see you tonight.

GEN. JACK KEANE, CHAIRMAN, INSTITUTE OF THE STUDY OF WAR:  Boy, quite a bit to talk about.

Your reaction, you see those three men pictures up there.  I know you know them all.  Who do you think is best suited for the job?

KEANE:  Well, I hope the president looks at somebody's stature.  The American people would know that person, have confidence in them, particularly based on the background.  And, clearly, the most qualified there is David Petraeus.

Unequivocally so, given his years of combat experience, most successful general obviously we've had since World War II and did a great job over at the CIA.  He knows most of the foreign leaders in the world.  Still to this day, he has (INAUDIBLE) to them.  He has relationships with them.  He's very familiar with all of the global security challenges that the United States are facing.  He's got it right on his fingertips.

MACCALLUM:  Could be bad luck for him, though, that you know, with his history --

KEANE:  Sure.

MACCALLUM:  Given the way that Flynn is leaving, they may not want that to deal with.

KEANE:  I think that's easily overcome just by for reputation.  I think a lot of Democrats would support it.  And I think it would -- he would help calm the waters.

MACCALLUM:  And we know President Trump thinks highly of him.

KEANE:  He does.

MACCALLUM:  You know, in terms of -- so what about the other two?

KEANE:  I don't know them as well.

Keith Kellogg was one of my division commanders.  He's actually a personal friend.  I don't want to get too much into all of that.  I actually believe there are some others that they should add to the list.

Chairman Nunes from the Senate -- I mean, from the House Intelligence Committee.  Mac Thornberry, who is a House Armed Services Committee.  And there's also a former retired chief-of-staff (INAUDIBLE), who is very familiar with a lot of our global security challenges.  I hope they look beyond just those three.

MACCALLUM:  It seems like they are in a rush.

KEANE:  Yes.

MACCALLUM:  But, perhaps, would you advise them to take time?

KEANE:  I would take time to get it right.

MACCALLUM:  All right.  In terms of the Russians, we love the show tonight with this issue that they have been a saber-rattling a bit out there.  And they have basically done three different things.

There is a destroyer in the Black Sea that jets have been buzzing.  They came within 300 feet of that ship.  There was a spy ship that's been moved just 100 or so miles off the Coast of Delaware, which you can tell us whether or not you think that is a big deal.  And cruise missiles that were moved into place in violation of a Cold War treaty.

So while everybody is focused on General Flynn and all this inner Washington dynamic, Putin is making some moves out there.

KEANE:  Yes, he absolutely is, as are other countries.  And we said right at the beginning, all presidents get tested.

Obviously, the Iranians did with a missile fire and North Korea just did as well.  And here come the Russians.  Now spying off the coast of United States, routine business for Russia as well as for us in turn on the Russian Coast.

Usually, submarines, not visible, but we have to sense what they are doing.  A surface ship like this, it is unusual.  That's not routine.  But spying off our coast is absolute routine.  Buzzing our ships, they have done that before.  This one was particularly dangerous.  It is a provocation.

What they are trying to do, Martha, is humiliate and embarrassed the United States, particularly in our allies, rattle them and give them the impression that the United States isn't the strong military nation that it has been in the past and its leadership is not strong.

And, therefore, they want to weaken the relationship between the United States and our allies.  That's what's taking place here.

Also, this is obviously done with Mr. Trump in mind.  Clearly.  And they want to see what his reaction is.

MACCALLUM:  Is the absence of Flynn change the dynamic of Mattis and others who are involved towards Russia who've been very clear that they are very much against the aggressiveness of Russia.

KEANE:  Yes.  I mean, it's been mischaracterized about Mike Flynn and Russia.  He is very clear-eyed about Russia.  He knows Putin is a thug and a killer, and he knows that their policies are trampling on United States national interests as does the entire national security team.

The president has a strong team.  As much as they're going to miss Mike Flynn, I'm actually convinced they will get a very, very capable successor.

MACCALLUM:  General Jack Keane, thank you.

KEANE:  Good talking to you.

MACCALLUM:  Always a pleasure.

So new reaction tonight to President Trump's executive order on executive extreme vetting, essentially, just as the federal courts have it on pause. Congressman Trey Gowdy wants to weigh in on this in his first interview of 2017.  He's got a powerful message to deliver to the 19th Circuit judges. He will do that straight ahead.

Plus, increasing pressure tonight on some of the most conservative voices in the house G.O.P. conference.  As they demand that ObamaCare be repealed immediately, whether or not there is a replacement.  How is that going to go down?  Chris Stirewalt, Jessica Tarlov and Mercedes Schlapp on that.

(BEGIN VIDEO CLIP)

PAUL RYAN, SPEAKER OF THE HOUSE:  I fully recognize and respect the strong feelings that people have about this issue.  We should be passionate about this issue.  It is about people's lives.  This affects every person and every family in America.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

TRUMP:  Our goal is a clear and very safe community, great schools and we want those jobs at a high-paying job.

STEPHEN MILLER, WHITE HOUSE SENIOR POLICY ADVISOR:  Pleasure to be here on my first busy day in office.

SEAN SPICER, WHITE HOUSE PRESS SECRETARY:  People that are entrusted with national security secrets and classified information are leaking it out. That is a real concern for this president.

CUMMINGS:  Ladies and gentlemen, we are in a fight for the soul of our democracy.  The question is whether we will clearly understand that this is our watch.

TRUMP:  We're working on ObamaCare.  It's going to be very soon, right?

UNIDENTIFIED MALE:  Yes.

(LAUGHTER)

(END VIDEO CLIP)

MACCALLUM:  Interesting moment there.  So a busy day 26.  One that also includes new developments on the president's executive order on extreme vetting.

So for now, that order is paused under Judge James Robart's temporary restraining order.  But the Justice Department is still going forward with their challenge.  And as these cases make their way through the courts, a brand-new Fox poll out tonight shows that the nation is divided with a slight majority of voters saying that they are against Trump's order.

Congressman Trey Gowdy here in an exclusive on why he disagrees.  But, first, for the latest on the travel ban status, we go to Trace Gallagher live in L.A.

Trace?

TRACE GALLAGHER, FOX NEWS CORRESPONDENT:  Hi, Martha.  The biggest legal challenge is to President Trump's temporary travel ban and now moving forward in two courts, first, the Ninth Circuit Court of Appeals is deciding whether an 11 judge panel, also known as an en banc panel, should rehear the case.  

Last week, a three judge panel from the ninth circuit ruled against the administration, saying the president does not have unreviewable authority when it comes to immigration and national security.  But until the ninth circuit court issues its decision, the department of justice was hoping to postpone the proceedings at the district court in Seattle.  That's where Judge James Robart's initially put a hold on the president's travel ban.  Judge Robart's said he was surprised the administration was asking for a delay, considering last week.  The president tweeted, quote, see you in court, the security of our nation is at stake.  So now, Judge Robarts says he is not prepared to slow the case down because there is a quote, very sensitive time issue.  Judge Robart also noted that the ninth circuit court ruling should not interfere with his proceedings.  And now, a federal judge in Virginia has ruled the president's temporary travel ban likely violates freedom of religion.  District judge, Leonie Brinkema, says quote, the Muslim ban was a centerpiece of the president's campaign for months. Though, a district court in Massachusetts and the ninth circuit were skeptical of the order violating religious rights.  Finally, the administration is still considering rewriting or modifying the president's executive order so that it can better withstand court challenges.  Martha.

MARTHA MACCALLUM, FIRST 100 DAYS HOST:  Thank you.  In his first interview of 2017, former federal prosecutor and judiciary committee member Congressman Trey Gowdy joined us.  Congressman, good to have you with us tonight.

TREY GOWDY, U.S. CONGRESSMAN:  Yes, ma'am.  Thank you.

MACCALLUM:  You've heard all of that, you're very familiar with this case. What do you think about the ninth circuit court's decision?  And do you believe that President Trump was in the right when he said that people could not travel here from those several countries?

GOWDY:  Well, Martha, anyone familiar with the ninth circuit is not surprised at their opinion.  I think there is a really easy remedy that I think could be consistent across the entire country.  You have to view people in different categories.  They're U.S. citizens, which are entitled to the full panoply of constitutional rights and due process.  And the other extreme, you have someone in Yemen who's never been to the United States, who just wants to visit Graceland.  They're not entitled to any due process.  They're not entitled to any constitutional protections.  And then, you have the group in the middle.  So my counsel to the president, and I'm sure he's receiving this counsel, who's got access to much better lawyers than me, you have to have a different evidentiary basis depending on the category at bar, U.S. citizens is one category.  If you have a visa and you have relied upon that visa to either rent an apartment or put your kids in school, then, you do have certain property interests that you would want protected.  Therefore, you're entitled to due process.  So I think his executive order is pretty easily remedied.  And you can remedy it without going to the U.S. Supreme Court.

MACCALLUM:  So there is an indication that it was written by basically outside counsel and not run by the DOJ.  And you've just pointed to a number of polls in this initial executive order.  What do you think about the fact that that's the way it was apparently done?

GOWDY:  Well, I will say this, Martha.  There is a reason very few people ever raise their hand and volunteered to be the leader of the free world.  It's a hard job.  It's an important job.  He's about a month into it.  Tom Brady wasn't a very good quarterback's his first year, neither was Peyton Manning.  I'm prepared to give this president time.  He's never served in the house.  He's never served in the senate.  It is up -- in my opinion, up to his advisors, including his legal advisors, to say, Mr. President, with different categories like nonimmigrant visa holders, versus U.S. citizen, versus non-U.S. citizen, there is a different legal analysis.  And it is incumbent upon his advisors to provide him with the evidentiary basis to withstand a court scrutiny.

MACCALLUM:  It sounds like you think that they also need to fix the legal side of this, but they also need to communicate better what it's really about.  And what the president's powers are in terms of protecting the nation.

GOWDY:  And that's the most troubling part of the ninth circuit opinion, quite frankly to me.  If your viewers -- there is a case called Sabadash that the ninth circuit relied on.  If your viewers were familiar with the facts of Sabadash, they would be outraged.  That's the case that the ninth circuit relied upon.  And the other part that's troubling is the commander-in-chief is elected but judges are not.  And you don't want federal judges overlooking battle plans or decisions to strike certain targets or decisions related to war or national security.  It's not a blank check that the chief executive and commander-in-chief has.  But you certainly don't have to clear everything with an article three unelected federal judge.

MACCALLUM:  What are your thoughts on Mike Flynn, and the fact that he had to resign?  And discussions that he may have had with the Russian government, about Sanctions that we had against them.  What's your take?

GOWDY:  My take is that the commander-in-chief, the president and the vice president have the right to rely on advisors that provide them the unadulterated, complete, whole truth.  And it's unfair to the president and the vice president to give them other than -- anything other than that.  I have never met General Flynn.  People that I know that respect him, respect his service to the country.  And I would join that.  But you have to tell the truth to your boss all the time.

MACCALLUM:  Understand.  Are you surprised that this information, the transcript of this phone call got out?  That somehow -- and now, it's being perhaps pointed out -- a former Obama official who may have leaked this information.  And I think about the fact that you wanted very much transcripts of conversations that had to go from the White House to the consulate in Benghazi, and you never got them.

GOWDY:  Well, thank you for remembering that.  My Democratic colleagues have amnesia.  I will say this.  They're very well rested because for eight years they didn't lift a finger to do oversight.  So all of that energy you saw today at their press conference, that's because they want on an eight year long vacation from doing oversight over the executive branch.  So I am all for the committees of jurisdiction looking into it.  I'm also for looking into how classified information can make its way into the public domain.  That is not a Republican issue, it's not a Democrat issue.  It's a legal issue.

MACCALLUM:  Trey Gowdy, thank you very much.  Congressman, good to see you.

GOWDY:  Yes, ma'am.  Happy Valentine's Day.

MACCALLUM:  You, too.  So just ahead a New York Times reporter under fire for comments that he made about first lady Melania Trump, we will explain what was missing, shall we say, from his apology.  Plus, conservatives and the house Republicans conference putting pressure on leadership, as they say ObamaCare repeal efforts are just not moving quickly enough.  Tonight, we're learning those efforts may start to pay off.  Chris Stirewalt, Jessica --, and Mercedes --  all standing by.  We'll be right back.  

(COMMERCIAL BREAK)

MACCALLUM:  Breaking tonight, Capitol Hill is a buzz over the looming ObamaCare battle, as some rank and file house Republicans are demanding that action on repealing the law happen immediately, with or without anything to replace it.  That battle playing out today all over Washington. Here now with more, Chris Stirewalt, Fox News politics editor, Jessica Tarlov, Democratic pollster and senior director of research at brussel.com, and Mercedes Schlapp, former spokesperson for President George W. Bush. Welcome all.  Mr. Stirewalt -- hi you guys, good to have you with us.  So Chris, let me start with you.  You know, everybody is paying so much attention to Mike Flynn today, that they may have missed this battle which they're going to be paying a lot of attention to.  Tell us why?

CHRIS STIREWALT, FOX NEWS:  Right, because it's going to be a gigantic hippopotamus that swims up for the bottom of the pond -- everybody right on the behind.  So the thing is, Republicans are debating, when to repeal it, and when to replace it, and when to do it, and all this stuff, and they're dithering around talking about this.  But the reality is the law is falling apart right under their feet, and right under the feet of the country. You've saw that another major insurer is dropping out of the pool.  They're not going to participate next year.  We have a new department of health and human services chief who is very determined that he is going to blow this thing out of the water.  So the Republicans are having a kind of academic discussion right now.  They want to do it on their terms, they got to do it sooner rather than later, or they're going to pay heinous price -- heinous price with voters next year.

MACCALLUM:  So true.  I remember when President Trump said, you know, I sort of thought about letting this thing just fall apart.  And just letting everybody -- Democrats sort of live with it and to sort to see how bad it is.  And then, there might be national momentum to kind of say, well, let's come up with a better plan.  But, Mercedes, I don't think they're going to get the luxury to do that.

MERCEDES SCHLAPP, FOX NEWS CONTRIBUTOR:  No, absolutely not.  I think you have to remember that back in 2010, 2012, all the campaign literature for these Republicans, congressional candidates, senate candidates, all their top priority, repeal ObamaCare.  You've had seven years to pull this together, to figure out how to repeal and replace ObamaCare.  And now, there is this distress happening in congress.  You have two factions, the conservative basically saying, we've got to move quickly, we've got to put pressure on the Republican leadership.  The Republican leadership saying, take it slow.  So what do you need?  You need President Trump to step in, Secretary Price to step in because it's going to be crucial to have their leadership, have their voices to bring the party together.

MACCALLUM:  Bring them in to the Roosevelt Room and say, you know, I'll bring you some sandwiches, but you are not leaving until you guys figure this out.  Jessica is just hating this whole thing.  I can just imagine.

JESSICA TARLOV, SENIOR DIRECTOR OF RESEARCH AT BRUSSEL.COM:  Yeah, I feel awful about it, definitely.  Now it's your problem, guys.  Yeah -- no, I agree with what both Chris and Mercedes said.  I would just like to add that there are key conditions that are different right now that may have been before.  For the first time since the law was introduced, it's more popular than unpopular.  Only 16 percent of Republicans today actually want the law completely repealed, 51 percent of Republicans say they want to keep some parts of the law.  They can guarantee that those are the things that Donald Trump promised, that you could stay on your parents insurance until you were 26, and that if you had a pre-existing condition, you would always be covered.

MACCALLUM:  I bet those two things can stay.

(CROSSTALK)

TARLOV:  Absolutely.  But then, you've also have senators now like Susan Collins, saying she's not interested in defunding Planned Parenthood, which was something key for those on the far right wing of the party.  You can look at that Collins-Cassidy bill, take something from there.  But I think at the end of the day, listen to Orrin Hatch, who saying let's revise this thing instead of repeal it because you're going to have a lot more Republicans voters, and Democrats as well, just Americans outside those town halls, beating down the doors, saying, you're not going to take away my healthcare.

MACCALLUM:  Yeah.  I mean, politically, this could be very dangerous for them comes to midterms.  And, you know, people don't want to lose their healthcare.  Maybe they've gotten used to this whole thing.  But one group that really wants it gone are business owners and companies.  The reason the Dow is skyrocketing is two-folds.  I think they're going to get tax cuts, and they think they're getting rid of ObamaCare, your thoughts?

STIREWALT:  Well, you know business about as well as I know politics.  And I know business not much at all.  But I can tell you this, Wall Street has not figured out yet, the business sector has not figured out what a train wreck is about to take place in this building behind me over the next three to four weeks.  As all of these demands for tax reform, for regulatory reform, for ObamaCare, for all of these things, come colliding into one another.  And they can only do one thing at a time.  They can only run one train down the track.  And they're trying to confirm a Supreme Court justice at the same time.

MACCALLUM:  Tax cuts have two happen -- new polls today, tax cuts are at the top of everyone's list.  And I don't think they care much about some of the stuff that is being discussed, and it's over the newspapers and all over the headlines, Mercedes.  They want their tax cuts.

SCHLAPP:  Yeah, I think you're absolutely right.  I think there is this momentum right now that the Republicans have to get this right, whether it's repealing ObamaCare.  But also, on the tax cuts issue which I know that many of these Democrats are holding back.  They want to get through this ObamaCare replace, repair, however they want to term or say it.  But at the same time, they're holding back on pushing forward on the tax cuts, which we know is a critical component of President Trump's campaign promise, and ensuring that we move forward in cutting taxes, which we know can boost the economy.

MACCALLUM:  Well, there are some big rooms there in Washington.  I've seen them.

(LAUGHTER)

MACCALLUM:  You will get wraps and sandwiches and everything for lunch time, and you guys are in the tax-cut room.  You know, President Trump says he knows how to get stuff done and maybe that's a start.

TARLOV:  Yeah, he should probably get rid of the travel ban room though for the moment, to let us focus on these issues that Americans -- what?  I had to use it.

MACCALLUM:  All right.  Thanks you, guys.  Great to see you as always.  And still ahead tonight, a potentially historic meeting takes place tomorrow. President Trump will have his first sit down with Israeli Prime Minister, Benjamin Netanyahu.  Ed Henry knows what we can expect and what we need to look for there.  Plus, a New York Times reporter finds himself in hot water after he made disparaging comments about the first lady.  We will discuss that with Mollie Hemingway next.  

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MACCALLUM:  Developing tonight, New York Times reporter, Jacob Bernstein is facing deserved scrutiny for making disparaging remarks about the first lady, loudly at a fashion show.  And he was overheard by somebody who didn't take too kindly to them, model Emily Ratajkowski, who called him out in no uncertain terms.  So, he came back with this.  I want to take ownership of a mistake I made, speaking at a party, and what I thought was a personal conversation. I nevertheless made a stupid remark about the first lady.  Joining me now to fill us in on the gaps here, Mollie Hemingway, senior editor for The Federalist.  Mollie, good evening to you. So what happened here?

MOLLIE HEMINGWAY, SENIOR EDITOR THE FEDERALIST:  Yeah, well, this New York Times reporter came out and was sharing all these vicious lies about Melania Trump.  And instead of -- he made this sort of like weak apology. But what's interesting to me is how the media are characterizing this. They're not saying that he was sharing vicious lies.  They say he said unfounded rumors.  And it seems like there're no standards for what can or should be said about members of the Trump family.  You now had high-profile journalists and celebrities say all sorts of things about Barron Trump, Donald Trump's 10-year-old son, mocking his abilities and his character. You had high-profile journalists say that Ivanka Trump was in an incestuous relationship with her father.  And now you have this New York Times reporter sharing this -- gossiping about Melania Trump being an actual hooker.  We know that if things like this were done about the previous administration, that the media would not be hiding the identity of who is doing it.  They would not be taking it so lackluster.

MACCALLUM:  Yeah, I mean, it is really -- when you put it in those terms, when you think about the -- President Obama and his family, and, you know, just the suggestion that anybody would make the kinds -- the nature of the comments that you just laid out there, it's just unbelievable.

HEMINGWAY:  Well, you might remember there was a low-level staffer for a backbench congressman who made some impolite remarks about the Obama children.  She was run out of her job.  The Washington Post ran more than a dozen stories.  They had people going down to her parent's house, digging into her juvie records, completely destroying her life.  But when it's one of our own, when it's a fellow journalist we seem to just have this totally different take on it.

MACCALLUM:  Yeah.  And you also say that, you know, there was a lot of sort of hush-hush about who this journalist was.  Why was that?

HEMINGWAY:  Yeah, well, and that's what's great.  Like if you are, again, a low-level staffer, your whole identity can be outed and your life is destroyed.  There was really no reason to protect this man's identity when he's a public figure, a journalist, and, you know, it would have been pretty easy to find out who he was.  He ended up outing himself in this apology where he wrote on twitter.  But, again, this is the restraint that you see reserved only for members of the media or people who are of a different political persuasion then what we saw on the last administration.

MACCALLUM:  Very interesting.  Mollie, thank you very much.  Always good to see you.

HEMINGWAY:  Thank you.

MACCALLUM:  So still ahead tonight, President Trump's week of internationalist diplomacy continues.  Israeli prime minister is in the nation's capital, ahead of a meeting at the White House tomorrow. He's meeting with some other top officials this evening.  Ed Henry is there.  He is tracking it down for us.  What's going on tonight, what is coming tomorrow?  And a late-breaking story out this evening out of Seattle that you're going to want to know when we come back.

(COMMERCIAL BREAK)

MACCALLUM:  All right.  Let's take a look at tomorrow, day 27, as Israeli Prime Minister Benjamin Netanyahu is in Washington for a critical meeting, first one with President Trump.  Chief national correspondent, Ed Henry, with an early look at what we can expect.  Plus, details of another late-breaking story tonight.  Hi, Ed.

ED HENRY, CHIEF NATIONAL CORRESPONDENT:  That's right.  Good to see again, Martha.  What's interesting is tonight out of Seattle, this late breaking story you've mentioned, a 23-year-old kid, a so-called dreamer, has been arrested in one of these immigration raids we've been seeing all around the country.  Why is this significant?  Well, this is somebody who was given legal status by one of former President Barack Obama's executive actions, one of these so-called dreamer from DACA.  And all of a sudden, he's arrested.  He said, wait a second, I have a work permit and I have no criminal record, unlike the others who were targeted in these early days by the Trump administration.  So this 23-year-old from Mexico is fighting it. This is going to another another early test of the Trump immigration record.  And as you noted, a major test tomorrow at the White House in the Oval Office of his foreign policy.  The prime minister from Israel, Benjamin Netanyahu coming for his first face-to-face meeting with the president, one thing we know for sure, he'll get a warmer greeting. Remember the time when Barack Obama left him cooling his heels for a couple of hours while the president was upstairs having dinner.  This time, they expect warmer relations.  But will they deliver an actual policy? Big promises made in the campaign by Donald Trump, such as the idea that he would work with Israelis on settlements.  In recent days, he's been changing his tune and criticizing some of those settlements.  There's a lot of work to be done for Mideast peace.  Martha?

MACCALLUM:  It will be interesting.  Ed, thank you so much.  So as we leave you tonight, given to some may say, Machiavelli and inclinations of some and positions of power, whether they'll be in or around the beltway, or in or out of office even.  Remember these words from your high school study of the Prince, there is nothing more difficult to take in hand, more perilous to conduct, or more uncertain in its success, then to take the lead in the introduction of a new order of things.  Something to think about tonight.  Have a good night, everybody.  O'Reilly is up next.  Come back and see us tomorrow night for day 27.

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