President Trump vs. the FBI

This is a rush transcript from "Special Report with Bret Baier," December 5, 2017. This copy may not be in its final form and may be updated.

(BEGIN VIDEO CLIPS)

PRESIDENT DONALD TRUMP: I feel badly for General Flynn. I feel very badly. He's led a very strong life, and I feel very badly.

Hillary Clinton on the Fourth of July weekend went to the FBI, not under oath. It was the most incredible thing anyone has ever seen. She lied many times. Nothing happened to her. Flynn lied in it's like they ruined his life. It's very unfair.

SEN. DIANNE FEINSTEIN, D-CALIF.: What we are beginning to see is the putting together of a case of obstruction of justice.

REP. TREY GOWDY, R-S.C.: They were talking about collusion this time six months ago but there's no evidence of that, so now they pivoted to obstruction of justice. If Comey felt obstructed, he did a masterful job keeping it out of any of his memos.

(END VIDEO CLIPS)

BRET BAIER, ANCHOR: That was Trey Gowdy are on this show earlier, a busy news weekend when it came to the subject of these investigations, multiple investigations. Here is the House Intelligence Committee chairman, "By hiding from Congress and from the American people documented political bias by key FBI head investigator for both the Russia collusion probe and the Clinton email investigation, the FBI and DOJ engaged in a willful attempt to thwart Congress' constitutional oversight responsibility. The DOJ is now expressed on a Saturday just hours after the press reports on Strzok's," that is this deputy director for the FBI counterterrorism, "dismissal appeared a sudden willingness to comply with some of the committee's longstanding demands. This attempted 11th hour accommodation is neither credible nor believable and in fact is yet another example of DOJ's disingenuousness and obstruction."

We talked about obstruction. We will sort it all out with the panel: George Washington University Law School Professor Jonathan Turley; Mollie Hemingway, senior editor at The Federalist, and Susan Page, Washington Bureau Chief at "USA Today."

Susan, let's start with the president and what he tweeted out, what's he's talking about when it comes to Michael Flynn. It seems like that got a lot of attention. It was later determined his lawyer had supposedly dictated that tweet. Where do you think the fallout from all of that is?

SUSAN PAGE, USA TODAY: I think we don't know the full fallout. I think there are a lot of questions we won't know until this investigation is complete, but I think this is clearly unhelpful to President Trump and his allies. This raises questions about the timing of when he knew his actions in dealing with James Comey. And I think it's perplexing that he continues to tweet in ways that undermine his own interests.

BAIER: Mollie?

MOLLIE HEMINGWAY, THE FEDERALIST: Throughout the year, the FBI had said they didn't think it was a very serious that Mike Flynn had talked this way with the FBI only to find out last weekend that he has pleaded guilty to it. So I think it's hard to build up an obviously -- there might be a case to be made, but it's also worth considering that for much of the year the FBI was saying they didn't think it was a big deal. It seems like a bit of a change.

BAIER: All right, Jonathan, that is the big question over the weekend. Here is Alan Dershowitz and his thoughts about obstruction.

(BEGIN VIDEO CLIP)

ALAN DERSHOWITZ, HARVARD LAW PROFESSOR: There has never been a case in history where a president has been charged with obstruction of justice for merely exercising his constitutional authority. That would cause a constitutional crisis in the United States.

(END VIDEO CLIP)

BAIER: Your thoughts?

JONATHAN TURLEY, GEORGE WASHINGTON UNIVERSITY: I'm afraid I have to disagree with my friend Alan on that. I've always taking the view that a president could be charged with obstruction. But in fairness to Alan and Mr. Dowd, the president's attorney, this is a good faith question. Professors use this as a parlor game for years of whether a sitting president can be indicted, the meaning of emoluments, whether you can sell a pardon. It just happens that this administration seems on course to answer all of them. Hopefully we won't, cut certainly they've all become much, much more relevant.

But I actually think a president can be charged with obstruction but it really doesn't matter because obstruction can be the basis of an abuse of power charge for impeachment. Everyone agrees --

BAIER: Which is a political process we should point out, and that is a political process that goes through the House and then is adjudicated in the Senate. And we saw it with Clinton and Nixon.

TURLEY: Right. And the thing is, I think we're still too early for that. It's painful to watch another generation of tweets go awry. It's sort of like the old joke of going to the doctor and saying it hurts when I do this, and the doctor says stop doing that. And it seems like someone has to tell this White House stop doing that. It's causing you a great deal of harm. And it is. They really did take care of this by saying this wasn't Trump's words. The lawyer fell on his sword, but this still opens up an area for Mueller. He doesn't have to accept that explanation.

BAIER: How big of an issue is this other investigation into the anti-Trump texts and how much the deputy director for counterintelligence was tied into key moments like the interviewing of Hillary Clinton, the interviewing of Michael Flynn, changing of the words about the Clinton email investigation?

HEMINGWAY: Right. There is a very strong case to be made that law enforcement agencies and intelligence agencies have not behaved in a way that inspires confidence with this entire situation. They were playing around with the dossier that they had no business playing around with. Then they leaked that they were playing around with the dossier to legitimize a frankly insane conspiracy theory.

You had James Comey, a conspiracy theory about collusion with Russia which I think we all now know has no basis.

BAIER: Or at least we don't know what we don't know.

HEMINGWAY: I should say we have no reason to believe after a year of investigation on this. You have James Comey privately saying that Donald Trump wasn't under investigation while publicly intimating that he was. And it's not just that it was mishandling of the investigation. It's also comparing it to the Clinton email investigation where you had immunity handed out like candy to Clinton associates. You had obstruction of evidence with 30,000 emails been deleted, and you had a pre-conclusion that she would not be held accountable for her crimes. And then find out that the same guy who changed the language from "gross negligence" to "extremely careless" was also the guy who started the Russia probe and he's also the guy who interviewed Flynn. We're seeing all these report. I think that people who care about the integrity of these law enforcement agencies should be very concerned about all this news that's coming out.

BAIER: Does this mean that this is a long process? Do you think that this is going to continue into the new year, well into the year?

PAGE: Yes. I think there's no question it's going to continue well into the year. The idea that this is about to wrap up I think is foolish and wishful thinking on the part of the White House. This is going to go on for a while. And things like the controversy over the FBI agent, which I agree is wrong. You shouldn't have people taking a partisan point of view in conducting these investigations are just going to make it go on longer.

BAIER: It won't be the last panel on this topic I'm sure.

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