Can Republicans hold onto the House in the midterms?

This is a rush transcript from "Journal Editorial Report," May 5, 2018. This copy may not be in its final form and may be updated.

PAUL GIGOT, HOST: Welcome to the "Journal Editorial Report." I'm Paul Gigot. Big changes this week to the Trump legal team and legal strategies as the president faces a possible sit-down with special counsel Robert Mueller, White House lawyer Ty Cobb replaced by Emmet Flood, a veteran DC power player who defended President Bill Clinton during impeachment.

This as attorney Rudy Giuliani revealed that Mr. President made a series of payments to reimburse his personal lawyer, Michael Cohen for money paid to adult film star, Stormy Daniels and leak of potential questions that Special Counsel Robert Mueller might ask Mr. Trump in an interview, something the President said Friday he would love to do.


DONALD TRUMP, PRESIDENT OF THE UNITED STATES: I would love to speak, I would love to go, nothing I want to do more because we did nothing wrong. I have to find that we are going to be treated fairly because everybody sees it now and it is a pure witch hunt. Right now, it's a pure witch hunt.

GIGOT: Joining the panel this week, Wall Street Journal columnist and deputy editor Dan Henninger, and columnist Kimberley Strassel and Bill McGurn.

Does Dan, what do you make first of all of the changes in the Trump legal team, and does it suggest change a strange of strategy?

DAN HENNINGER, COLUMNIST, WALL STREET JOURNAL: Oh, it does, I think suggest a big change of strategy. Emmet Flood of the Williams & Connolly law firm is one of the absolute top defense attorneys in Washington. He's known to be very aggressive, very precise and I think if the White House listens to him - Donald Trump listens to him, they should be in a position now to really fight back or at least contest with the Mueller team.

But based on the thought we just saw of Donald Trump, the problem I think, Paul is that, Donald Trump simply does not believe he's done anything wrong, he doesn't process the danger. He's going to have to listen to Mr. Flood, I think, if he has any prospect of success in resisting the Mueller prosecution team.

GIGOT: Kim, one of the things that I think this suggests is that the White House's understanding that the big threat here is the potential for impeachment if Democrats take the House, not necessarily the indictment, but impeachment and Flood is expert on impeachment?

KIMBERLEY STRASSEL, MEMBER OF EDITORIAL BOARD, WALL STREET JOURNAL: Yes, exactly. This is about moving get away from - just worrying about a prosecution as you said, but rather to look at some of the issues that Mueller seems to be focusing on, for instance, obstruction and the worry that you simply get a report from Mueller at the end of the day that, then Democrats use it for impeachment grounds.

So, this is - Mr. Flood's job is going to be try to circumscribe what Trump is going to even answer or respond to and try to get Mr. Mueller to stand down on some issues like obstruction of justice.

GIGOT: Yes, Bill, let's turn to Mueller questions, more than 40 of them released. How do you read them as a road map to what Mueller is doing?

WILLIAM MCGURN, AMERICAN WRITER: Well, I think look, he clearly wants answers, I think he's phishing. I think the questions are outrageous.

GIGOT: And how so?

MCGURN: In the terms of asking a President what his thinking was before a decision that's he's fully entitled to take...

GIGOT: Namely firing Comey.

MCGURN: Firing Comey. I think the president has a strong constitutional case against this, and in fact, this may be his be in the sense of having Rudy go out there. In the sense, when he says...

GIGOT: Strong case, how?

MCGURN: That what Mr. Mueller wants to do to question - an inferior officer of the Executive branch to question the president about his motivations, for decisions that are perfectly within his authority as president.

GIGOT: But, Bill, when Ken Starr got to question...

MCGURN: Yes, look, I think this is the nature. This is the nature of special prosecutors. I mean, one thing I think that people should acknowledge, it is a witch hunt. There was no crime at the beginning when they unleashed the Special Counsel.

And I think, you don't have to believe that Mr. Mueller is a bad guy to think that special counsels are a bad idea, because this is where it they end up. This started as a counterintelligence probe into possible Russian collusion and now we are on a porn star's consensual relationship with a New York City playboy.

GIGOT: But the questions, there are so many of them. They did include some Russian questions and so on, but they also got to this obstruction justice case.

Kim, knowing what you know about the President and the probe, would you advise him, do you think it's wise for him to sit down with Mueller.

STRASSEL: Absolutely not, especially now that we have seen these questions. As Bill said, they are open-ended. They are designed to lead the President down his natural tendency to talk and ultimately get him in a perjury trap and that should be what their legal team is very wary of and why there should be some real ground rules before they even thought about sitting down.

GIGOT: Yes, I thought that was good advice that Alan Dershowitz, who is not representing Trump today, which is answer written questions, but any questions that get to obstruction of justice or Bill's ideas, Article 2 powers under the Constitution.

Dan, let's turn to Stormy Daniels, and the flip there now with the acknowledging Rudy Giuliani and the President acknowledging that Michael Cohen did pay her and did pay her to remain silent, what do you make of that?

HENNINGER: Well, what I make it of it is that somebody finally recognized that the President had some vulnerability here in terms of the campaign finance laws, those are laws with criminal punishment, people have gone to prison for violating them, so you can't be frivolous with a charge like that and I think, they recognized that they had to get their story straight, though they should have gotten the story straight the first time around because it is now embarrassing for the president to have to say, first of all, that he had no knowledge of the payments and now to admit he did that - essentially, he had made series of $30,000.00 payments into Michael Cohen's bank account.

And you know, we have got to say, Paul, this is damaging to the president's credibility, both statements could not be true. He's now the president of the United States, he's dealing with larger issues like the Iran nuclear deal, the North Koreans - all of whom are looking for credibility from the President of the United States, that didn't help.

GIGOT: It doesn't help him, Bill, I mean, I agree with Dan on this. If you're trying to say to the American public believe me on Mueller, if you lied about Stormy Daniels...

MCGURN: Yes, look, it doesn't help, on the other hand, did anyone ever believe this at the beginning?

GIGOT: No, not.

MCGURN: Like is anyone shocked by this? I mean, I think...

GIGOT: No, but that's another way of saying, well, nobody should believe this President on anything.

MCGURN: Well, a lot of people don't.

GIGOT: But you can't operate like a president if nobody believes you in crisis?

MCGURN: President Trump has done that so far, right? And a lot of people don't believe him. Look, I agree, it hurts his credibility, but I also believe it's just - it's incredible that this is where we are from, again, an investigation that started into so-called Russian collusion.

GIGOT: All right, thank you all very much. Deputy Attorney General Rod Rosenstein responding to an impeachment threat by House Republicans with accusations of extortion. We will tell you what's at stake in this showdown between Congress and the Justice Department, next.


ROD ROSENSTEIN, DEPUTY ATTORNEY GENERAL FOR THE UNITED STATES DEPARTMENT OF JUSTICE: These are people who have been making threats privately and publicly against me for quite some time and I think they should understand by now that the Department of Justice is not going to be extorted.

We are going to do what's required by the rule of law and any kind of threats that anybody makes are not going to affect the way we do our job.


GIGOT: A defiant Deputy Attorney General Rod Rosenstein responding this week to a group of House Republican who are threatening him with impeachment for failing to go respond to Congressional subpoenas.

The lawmakers who have accused Rosenstein of stone-walling are demanding access to classified documents related to the Russia probe, as well as potential surveillance abuses by the FBI.

The president threatening to step in Wednesday tweeting, "A rigged system. They don't want to turn over documents to Congress. What are they afraid of? Why so much redacting? Why such unequal justice? At some point I will have no choice, but to use powers granted to the presidency and get involved."

Kim, you wrote a very tough column this week saying - about the Justice Department's lack of cooperation here. Why do you think they are in the wrong?

STRASSEL: Well, they're in the wrong because clearly, we already know from what we have seen and has been unearthed by Congressional investigators so far that the FBI used poor judgment throughout much of 2016, both in the Hillary Clinton probe and in terms of FISA abuse surveillance abuse.

And so what we are seeing now is Congress attempting to zero in on some very specific questions it has about things that Jim Comey said, things that they believe that the FBI did in the course of that Russia investigation against Trump and the DOJ does not want that information to go public and that should alarm everyone.

GIGOT: And Kim, some of the objections from the House involved the redactions that were made insisted upon in the House Intelligence Committee report, you've read that report, do you think that a lot of those redactions look to you like they're not based on actual threats to national security, but are more in the realm of political protection?

STRASSEL: Yes, absolutely. There are some 300 redactions in there. Members of Congress who I talked to who were engaged in that report say that there's no need for nearly all of them. They go to the question of FBI's actions, and look, the history here, Paul, is that every time the Department of Justice and the FBI has said that we shouldn't release something on the grounds of national security or because of some other reason, it turns out that the only reason they didn't want it released is because it was embarrassing to the FBI or Department of Justice.

GIGOT: Bill, elaborate on that, because you have been following this throughout, and that's what's kind of happened here. Every time they say, "Oh, terrible damage," and then you see what they come up with and it's nothing.

MCGURN: Remember the summary that the House Intelligence Committee was going to release and they put out a press release saying the extraordinarily reckless...

GIGOT: This is the Justice Department.

MCGURN: Justice Department. I mean, it's just - there's a lot of stuff that...


GIGOT: And in the end, it was politically embarrassing in some respects, but hardly a threat to any national security.

MCGURN: And remember, the questions here involved both the FBI and the Justice Department itself, it's not just the disinterested observer. A lot of this is about their behavior. Look, I think it's incredible that a high-ranking justice official would talk about a legitimate Congressional function as extortion. It's just - and he made a comment about rummaging...


GIGOT: Yes, what about that point?

MCGURN: Well, look, if you're an individual member of Congress, you can't say, "I demand this and I demand that."

GIGOT: And Congress - and justice has the right to withhold document if they are directly related to a criminal case and jeopardize that case.

MCGURN: Right.

GIGOT: Is that relevant here?

MCGURN: It may be, but it hasn't been so far, you know, and the stuff that's come out, and look, I am not sure I even buy that. I think the system is based on the people knowing through their elected representatives and when they act collectively, meaning as a full Congress or through the appropriate committees.

Remember, the reason that we have subpoenas is because the Justice Department didn't do anything when it was a request. They've had - they've had chance after chance to act reasonably and they haven't and if Congress decides to hold an official in contempt, I think that's a good exercise. I think they are actually paying the price for not holding the IRS Commissioner in contempt back during the lowest learner thing.

GIGOT: Well, but Dan, can you imagine the spectacle of a Republican House or Senate holding a Republican-appointed official from the Justice Department in contempt or impeaching them? I mean, I worked in this business a long time, that's not one I can remember.

HENNINGER: Well, spectacle would be the word for that. It's been quite a circus already and, you know, I think you try to put the best face on it for the Justice Department and the FBI, there's some reputation that's trying to be protected here.

But we have gone past embarrassment, and they are have to recognize that, they have to restore the credibility in those institutions, but let's bear in mind, there's one big event coming up, we've talked about it before, and that is the Justice Department, the Inspector General Michael Horowitz's report on the FBI's handling of the 2016 election and that's going to include detail about James Comey.

I suspect it is not going to be - it's going to be harsh on James Comey and Andrew McCabe. When the report comes out, it's going to be the baseline for discussing this subject.

GIGOT: All right, Kim, just a last question and briefly, where is Donald Trump on all of this? He's threatening to use his presidential powers, but I guess my question is, if he wants this out, why doesn't he just declassify it and get it out?

STRASSEL: The tweet that he came out with on Wednesday made clear he is immensely frustrated and did suggest that he was moving toward ordering some form of declassification. That's entirely his right. It's a power under the Constitution that he has, and look, I think one of the quick way to get this done with, this back and forth wrangling is just move on it, declassify as much as possible and let the public sort it out.

GIGOT: All right, Kim, thank you. Still ahead as primary voters head to the polls Tuesday in four key states, we will look at the races to watch, plus a confident Nancy Pelosi says she will retake the Speaker's gavel, but is she a liability for Democrats heading into the midterm elections.

GIGOT: Well, as primary voters get set to head to polls, Tuesday in Ohio, West Virginia, Indiana and North Carolina, Democrats are expressing increasing optimism that they'll retake the House in November and maybe even the Senate.

A confident Nancy Pelosi told the "Boston Globe" this week, "We will win. I will run for Speaker. I feel confident about it and my members do, too."

Karl Rove is a Wall Street Journal columnist and former senior adviser to President George W. Bush. Good to see you, Karl, so as you're looking at these races, which are the ones to watch and why?

KARL ROVE, COLUMNIST, WALL STREET JOURNAL: Well, there are going to be three big contests on Tuesday starting with two Senate races and one governor's race. Indiana has got a Republican primary, outsider former state legislator Mike Braun, two city members of Congress, Todd Rokita and Luke Messer and it is a toss-up as to who is going to win. The polling has been all over the place, whoever wins this nomination has got a good shot to become a United States Senator.

A new poll out showing that the generic Republican, unnamed generic Republican is running five points ahead of the sitting Democratic Senator Joe Donnelly, so this is a nomination worth having and as a result, it's turned into a little bit of a brawl.

GIGOT: Yes, let me follow-up on that, Karl, because - in this race, Braun has really positioned himself as the outsider running against these two members of Congress, that suggests that the outsider political theme that we saw so dominant in 2016 with Donald Trump, hasn't abated at all - it hasn't rather stopped, slowed down the Republican Party?

ROVE: Yes, well, particularly in a state like Indiana where it first pass opposed. There's no run-off, so, if you sit there and say there are three of us, and if I can get 36 percent or 37 percent of the vote, I'm likely to win, then that outsider message - and look, he's a business guy, he did serve in legislature, but Todd Rokita was secretary of state, and then a member of Congress, and Luke Messer has been member of Congress for some time.

What is interesting is Rokita and Messer, both went to same small college in Southwest Indiana, Wabash and were in student government together, so they've known each other a long time and rubbed up against each other a long time.

GIGOT: That's proving the old adage that the politics is just like high school.

ROVE: Well, college.

GIGOT: All right, but I mean, are they all positioning themselves as supporters of Trump, any - and in these races, you are seeing margin for people who are saying - who are criticizing the president?

ROVE: Well, Rokita did not support Trump and has been reminded that by Messer in some really pointed ads as we come down the stretch, but look, every Republican in virtually every state who takes a stance against the president openly is going to hurt themselves in the primary because Trump is very popular among Republican primary voters and so the primary voters. if you touch him a little bit, "Yes, I don't like the tweeting, I think he's getting himself into trouble, and I wish he would stop doing this, I wish he would stop doing that," but they are not going to take somebody who comes out in the scene as somebody who is strongly opposed to the sitting President.

GIGOT: And in West Virginia, the Republican primary there really is a contest about whether they can nominate somebody who can actually beat Joe Manchin?

ROVE: Right, and look, this again, first of all, the morning consult polls shows that the generic Republican has a 14-point advantage over Senator Joe Manchin, but again, it's close, new Fox poll has Congressman Evan Jenkins who represents the most Democratic area of the state, he defeated a 19-term incumbent to get there, 25 percent of the vote, the state's Attorney General, twice elected, Patrick Morrisey, 21 percent and Don Blankenship, who - I want to be clear, my personal opinion is, Blankenship who is a former coal executive gets nominated, the Republicans can kiss this race goodbye. This is a guy who went to jail, can't vote for himself because he actually lives in is registered to vote in Las Vegas, Nevada, and once tried to get Chinese citizenship.

But went to the poky, served time in the Federal Pen for mine safety violations that ended in the death of 29 of his workers, now, the problem is that while it's 21, 21, 16 in the Fox poll, that means 38 percent of the voters go in to the.


GIGOT: Still undecided...

ROVE: Are still undecided. So, I want to be clear, I contributed money this week to Jenkins. I know him, I was involved - I did a fundraiser for him in his first campaign for Congress for full disclosure.

GIGOT: All right, thank you for acknowledging that. Let's go to Democrats and Nancy Pelosi's ebullience about her chances, but you know, I talked to a lot of Republicans and they are very nervous about the prospects, but they also think that Nancy Pelosi may be an asset for them to be able to run against them - against her instead of the local representative in some of these individual races, what do you make of that?

ROVE: Well, look, Nancy Pelosi has two challenges. First, taking control of the House, and she is a negative in these Republican districts. It's a way for Republicans to bring their voters back home and remind them of what they don't want. And she has got a second challenge, which is, there are a lot of Democrat candidates who are realizing that Nancy Pelosi is a negative in swing districts.

So, we have already 10 Democrats candidates for Congress who said, "I won't support Nancy Pelosi," and about and equal number who have thus far said, "Well, I am not inclined to support her." So, think about that, you have to get 218 votes to be elected speaker of the House.

What happens if the Democrats narrowly take control of the House? They take it by 5, 7, 10, 12, you have 20 Democrats who say, "I am not voting for her." So, it could be a real problem for her.

GIGOT: Well, or they will just say, "Well, never mind, I just ran on that in the campaign," and they will vote for her as Speaker anyway.

ROVE: Maybe, maybe, but they're in a swing district, they could well do that, but if they do that and they are in a swing district, they are going to regret it two years hence.

GIGOT: All right, thank you, Karl for being here. Appreciate it. When we come back, another one of President Trump's nominees facing a difficult road to confirmation, what to expect when Gina Haspel faces the Senate Intelligence Committee, next week

Another Trump nominee facing a contentious confirmation battle. A hearing for Gina Haspel, the President's pick to lead the CIA is set for Wednesday before the Senate Intelligence Committee, ahead of what the White House admits will be a close confirmation vote. Democrats are facing pressure to oppose Haspel, a 33-year veteran of the agency over her role in the CIA's post 9/11 enhanced interrogation program.

This, as the GOP begins to make good on the President's promise to target Democrats in the midterm elections for blocking his nominees. A new ad running in Montana this week takes on Senator John Tester who led the charge against Dr. Ronny Jackson to lead the VA.


UNIDENTIFIED MALE: In Montana, we value integrity and support our President, but John Tester spread false information about a respected Navy Admiral, helping DC Democrats derail President Trump's Veterans Affairs nominee.

John Tester has been part of the DC swamp for far too long.


GIGOT: We're back with Dan Henninger, Kim Strassel and Wall Street Journal editorial page writer, Kate Bachelder Odell.

So, Dan, let's go right to the Tester ad. What do you make of that as a campaign strategy and is it fair?

HENNINGER: It's a great campaign strategy and it is eminently fair because the democrats hold-up of not only Ronny Jackson, Mike Pompeo, they are going to do it to Gina Haspel now, and many, many other Trump nominees has been in a word unfair. It has been preposterous.

They are beginning to go pay a price for that. The Mike Pompeo circus was watched by most of the American people and now, we are going to see them do it again to Gina Haspel, and I think they run the risk of energizing the Republican base.

Bear in mind, that's the big issue in the midterm elections and the Democrats have been trying to tamp that down, but now with these nominee oppositions, I think they are bringing the Republicans out.

GIGOT: Kim, briefly though, I mean, I think that Tester might have understood what he was doing here, taking a risk and probably needed to gin up his own base, how do you think it plays out in the election?

STRASSEL: That's a problem that every single one of the red-state Democrats faces is that the energy in their party right now is all from the progressive left and their main rallying cry is "Do not allow Trump to have a functioning government. Do not confirm any of these people. This is our standard and what we are going to judge you by," and so Tester and others feel pressure to block the nominations.

The problem is, they live in a state where, you know, the vast majority voted for Trump and if the Republicans can energize their side on it, they might have the greater arguments in the end.

GIGOT: All right, Kate, let's turn to Gina Haspel, who is she? What she spent her career doing?

KATE BACHELDER ODELL, EDITORIAL WRITER. THE WALL STREET JOURNAL: Well, we haven't really heard from her directly because, only recently was her 33- year career at the CIA declassified. She started on the job as a case officer in Africa and worked her way the bureau.

GIGOT: She comes up out of the clandestine service,.

BACHELDER ODELL: Exactly, right, and she is one of the - the first in 50 years to move up and not be a political appointee, but to come from within inside the agency. She's also the first woman - would be the first woman to lead the CIA which usually Democrats would be excited about and support, but because of her involvement in some post 9/11 enhanced interrogation, the Democrats have decided to re-litigate the entire mid-2000's again.

GIGOT: And Rand Paul is also opposing her already, correct?

BACHELDER ODELL: He is, and he is badly misrepresenting an episode about destroying tapes involving water-boarding.

GIGOT: Explain that. This goes back to Jose Rodriguez, who was running the post 9/11 enhanced interrogation program and later, when it became really controversial, he ordered that the tapes would be - should be destroyed because he didn't want some of the agents who were doing this to be exposed?

BACHELDER ODELL: Right, and he asked Gina Haspel, his Chief of Staff at the time, to draft a cable ordering the destruction of the tapes. Now, Rodriguez did not have the authority, had not gotten the authority from the Director to do what he asked Gina to do, but although later investigations including from Democrats on House Intel.

GIGOT: And also, wasn't there not a Special Counsel investigation?


GIGOT: From the Justice Department under Eric Holder.

BACHELDER ODELL: Right, could turn up no misconduct from Gina Haspel.

GIGOT: Or for that matter, they never indicted Jose Rodriguez either.

BACHELDER ODELL: No, no. He was reprimanded in the agency, whereas Ms. Haspel was completely exonerated.

GIGOT: And when these interrogation techniques were applied, they were legal. There was a memo, a series of memos from the Justice Department saying that they were legal, correct?

BACHELDER ODELL: That's correct, and the law has since changed and by all accounts Gina is going to say at the committee that she has no intention of going back to the same program without the legal authority.

GIGOT: Well, this leads to the question, if you are somebody at the CIA who is tasked with protecting the United States and preventing another attack and you get a memo that says, "You know what, this is legal for the following reasons," your job is not to say, "Well, wait a minute. I think- it's your reading of that, you sure about this in Paragraph 6?" I mean your job is to say, "Okay," and go get the bad guys.

BACHELDER ODELL: Right, she followed the directions of her boss and the left wanted her to behave like Sally Yates at the Justice Department and refuse to follow the law.

GIGOT: Dan, what do you make of this? Because I remember when we writing editorials about this back, more than a decade ago, I mean, I remember the mood at the time and I don't remember a lot of Democrats waving hands and saying, "Oh, my god, don't do these things," they said, "Make sure there's not another attack?"

HENINNGER: Yes, I am glad. I am glad you brought that up, Paul, 9/11, 2001, nearly 17 years ago, both towers of World Trade Center collapsed, a loaded plane of passengers flew into the Pentagon, a passenger plane blown up over Pennsylvania - am I upset that the CIA used enhanced interrogation techniques against Al-Qaeda suspects?

I wasn't then, and I am not to this day, and I think most people aren't. But the Democrats are now retrospect-ably going to make a big issue of that and I am not sure it's going to play all that well for them, Paul, if Gina Haspel starts describing what the nature and environment was at that time and one more point, if Barack Obama had appointed her to be CIA director, she would be getting almost unanimous support in the Senate.

GIGOT: Kim, briefly, do you think she's going to get through?

STRASSEL: It's going to be close, 50 votes, tie-breaker Mike Pence, some of this may depend on whether or not the White House begins to make a better case for her and responds to this criticism and puts pressure on those Democrats we were mentioning to support this nomination or pay a price.

GIGOT: All right, thank you all. When we come back, Israel makes its best case as against the Iran nuclear deal as President Trump weighs the final decision on the Obama era accord.


BENJAMIN NETANYAHU, PRESIDENT, ISRAEL: A hundred thousand files, right here, prove that they lied.



NETANYAHU Even after the deal, Iran continued to preserve and expand its nuclear weapons know-how for future use. Why would a terrorist regime hide and meticulously catalogue its secret nuclear files if not to use them at a later date?

GIGOT: That was Israeli Prime Minister Benjamin Netanyahu, this week making the case against the Iran nuclear deal claiming that more than a hundred thousand documents seized by Israeli intelligence prove that the 2015 agreement was based on lies and that Tehran is secretly maintaining its nuclear weapons programs.

Netanyahu's presentation Monday in Tel Aviv comes ahead of President Trump's expected decision next week on whether the US will exit the accord.

Cliff May is President of the Foundation for Defense of Democracies and it's good to have you back here, Cliff, what did we learn from that presentation by the Prime Minister that we didn't know before?

CLIFFORD MAY, PRESIDENT, FOUNDATION FOR DEFENSE OF DEMOCRACIES: Well, some of us knew and some of us didn't, but it's very clear now that Iranian spokesman, not least the Foreign Minister Javad Zarif had been lying. They have been on numerous news programs on TV and elsewhere saying, "Look, we never had a nuclear weapons program. We don't want a nuclear weapons program," some would say - sometimes they claim there was a fatwa against it, and we are not going to be planning a nuclear weapons program for the future - all that was simply untrue, and the Israelis have demonstrated. The Iranians have been lying to our faces and into the faces of the Europeans all of this time.

They had the plans ready to go. We also learned from this a lot, there is more to be revealed, and we haven't translated everything about the people involved in nuclear weapons program. The sites where this work was being conducted and the equipment that was being used, this raises a lot of question that the International Atomic Energy Agency really needs to pursue.

They should say, "Well, we have to investigate and inspect these sites which we have in the past. We need to interview these personalities who have been involved and see what they are up to now and we have to know where the equipment is. Is it mothballed? Is it dismantled? Is it ready to be reinstalled?" All of this needs to be known.

GIGOT: All right, so - but John Kerry and some of the architects of the nuclear deal, said, look, you know, this is - we knew most, we knew this, or most of it and that's why we needed to do the deal in the first place because we knew Iran we wanted to pursue a nuclear weapon, that's why we needed to contain it with the deal, what's your response to that?

MAY: My response to that is John Kerry also said that what we call the PMDs, the possible military dimensions, would be revealed by the Iranian regime. They didn't, and instead what we now know is that there were positive military dimensions to all this.

You cannot have intrusive inspection regime and that's what Kerry claims we have had unless you know that the Iranians were doing before because unless you know that, you can't say, well, let's go where you were producing weapons, nuclear weapons triggers and let us see if you're doing that or not.

We have not been able to inspect any military sites as though it was a crazy idea that military sites would be place where military weapons would be produced. We can ask for it if we have separate intelligence, we have to wait 24 days so they can clean it up - all of that.

What we see is that, and we should understand now is that this agreement never stopped Iran from developing nuclear weapons. It may and may have delayed it in some respects, but that's not even clear.

The Iranian plan, we know, I think, from this information is to get their economy back in shape through the lifting of sanctions and they've gotten billions of dollars from us, and then at a time of their choosing go ahead, to develop nuclear weapons which has always been their intention even as they've denied it.

GIGOT: All right, but as the President faces a big decision next week, and he's been negotiating, his administration has been negotiating with Europe to try to get to a common ground about whether to revise the deal, at least agree from this end with the western powers to revise the deal, how close are they? Are they making progress on an agreement?

MAY: Probably not. I think there are two possibilities, one is that President Trump will terminate the agreement.

GIGOT: Right.

MAY: French President Emmanuel Macron and German Chancellor Angela Merkel came to Washington and tried to convince him, otherwise. Macron says, "I don't think we actually did," so he could terminate the agreement.

But the other possibility is that he decides not to terminate for now, but to do a couple of things, one is to impose sanctions outside of the nuclear framework, sanctions for terrorism, sanctions on the missile program and these are missiles meant to carry nuclear weapons, by the way, sanctions on a bunch of things, sanction the Central Bank of Iran, sanction ICO (ph), which is the Supreme Leader's big economic fund and increase the pressure with the threat that the pressure will increase a lot more if the agreement is terminated.

But then the Europeans can also go back to the Iranians and say, "Look, you've been saying all along that you have met your commitments and so the Americans should as well and you're not going renegotiate on anything. We now know that you haven't met your commitments. That you've been lying to us. We are disturbed by that, if you want this agreement to stay in place, it's got to be fixed." That means, at least the worst flaws in the agreement have to be fixed, that means the sunset provisions, which means that at a certain point, Iran is welcomed into the nuclear club in about 10 years. That has to be fixed. You can't keep developing these missiles, that's not good. There are a few things - yes, go ahead.

GIGOT: I just want to finish up here with one point. We only have about 30 seconds, but the president is going to North Korea for a summit, what impact do you think a withdrawal from this deal would have on that psychology of that summit?

MAY: Look, I think the deal - the deal that Trump gives to North Koreans and the deal that Trump gives to the Iranians has to be pretty much the same and in both cases, he needs to say, "You cannot have nuclear weapons and the means to deliver them. We will do whatever it takes to stop you. If you understand that, we can do business. If you don't understand that, if you think we are going to let you have nuclear weapons and the means to deliver them to American territory, then we've got a problem and we will deal with this problem."

GIGOT: All right, thank you very much. I appreciate it.

Still ahead, as the Supreme Court wraps up another term, retirement rumors continue to swirl with liberals begging Justice Anthony Kennedy to not call it quits.

With the Supreme Court wrapping up an especially high profile term, all eyes are on Justice Anthony Kennedy, as rumors of his possible retirement swirl once again.

The 81-year-old Kennedy widely seen as the court's swing vote and an exit this summer would give President Trump the chance to fill his second Supreme Court vacancy. Liberals are begging Kennedy not to go with an editorial in the "New York Times" last week and telling the Justice that "America needs you."

We are back with Dan Henninger, Bill Mcgurn and Wall Street Journal editorial board member, Allysia Finley.

So, what about - what is this liberal desire to keep Justice Kennedy in the job? I mean, is it sincere?

ALLYSIA FINLEY, EDITORIAL BOARD MEMBER, WALL STREET JOURNAL: Well, I think they are worried that Donald Trump will replace and be able to replace him with another conservatives and a lot more decisions will be a 5-4 conservative majority.

GIGOT: And lock it in for a number of years.

FINLEY: For a number of years, but you've seen what the court is, John Roberts is very incremental. You haven't seen huge swings and also Neil Gorsuch, Trump's last nominee, he's not been.

GIGOT: Lock-step conservative.

FINLEY: Exactly right, and in fact, in a recent case with the Quill internet sales tax, he was very questioning...

GIGOT: No, he was really taking - he was really disagreeing with some of the fundamental arguments that the Justice Department was taking.

FINLEY: Yes, exactly just as Kennedy wants.

GIGOT: That's right. But if Kennedy resigns this year, then you'd have a Republican Senate confirm and vet a replacement, but if Republicans lose the Senate in November, then what would happen is that the Democrats would probably not confirm any nominee...

FINLEY: No, no. It will be like a Merrick Garland case, right, you're going to get a deadlock court for another - 4-4 until the 2020 election. That'll be the stakes for the next two years.

GIGOT: So, that's something that Justice Kennedy has to think about not just for his own personal legacy, but also for functioning of a court.

FINLEY: Right. I think - exactly.

GIGOT: Okay. So, what do you think in terms of Kennedy's legacy, Bill, would it be better if he was replaced by a Republican and do you think he wants to be? He was appointed by Ronald Reagan.

MCGURN: Right, well, it depends what he values. Look, when people talk about his legacy, when the New York Times was editorializing about this, they have a specific legacy in mind.

GIGOT: They have two things...

MCGURN: Two things...

GIGOT: Gay marriage and abortion, but that's what they...

MCGURN: But there is a larger legacy on federalism and state rights. Look, he liked being the fifth vote, right, and in a lot of cases you could say - it make a perfectly good case that Kennedy would be on one side and you could make a perfectly good case that he would be on the other side and that's, I think, the same thing with his retirement. It depends, there's incentives for him to leave and preserve some of the other legacy and there are incentive for him to stay if he wants to have the last say on some of these important cases coming up.

GIGOT:` Dan, another part of that legacy I think is, Kennedy's legacy on the First Amendment. He's got a very strong jurisprudence there, not only on campaign finance for example, and on free speech and as we know, liberals and including liberal jurists are moving sharply towards restricting some kinds of speech.

HENNINGER: Yes, there's no question. The First Amendment is a big issue now as anyone who pays attention to the campuses understands. If I could, Paul, I am going to try to step inside of Anthony Kennedy's head, which also is an interesting place to be.

But consider, yes, he is the swing vote. I don't think Anthony Kennedy regards his swing vote as an idiosyncratic form of jurisprudence. I suspect he wouldn't at all mind forcing the system in the Senate or even President Trump to pick a nominee who more reflects what I would call his swing vote jurisprudence as opposed to the ideological commitments on the left and right which he would see as producing the polarization producing gridlock in Congress and the inevitable 4-4 votes in the Supreme Court.

He'd like a more pragmatic force of jurisprudence. Now, that might not as rigorous as you get like some of the justices like Scalia and Gorsuch, but I wouldn't be surprised at all if that's the direction in which Anthony Kennedy is trying to push the question of his successor.

GIGOT: Allysia, briefly, we only have about 30 seconds, but the big cases, some big cases coming in next six or seven weeks.

FINLEY: Right, you have two political gerrymandering cases, we decided the Janus case on public union dues.

GIGOT: Huge.

FINLEY: That's going to be a big one, the master piece cake case on freedom conscious...

GIGOT: Religious liberty.

FINLEY: And the Trump travel ban. You have a few other small ones, but, yes, it's a blockbuster term.

GIGOT: All I can say, Finley, is you better get your pens ready.

FINLEY: I can't go back to California in June.

GIGOT: You're going to be writing about it. We have to take one more break. When we come back, hits and misses of the week.

Time now for our hits and misses of the week. Kim, start us off.

STRASSEL: Paul, a miss to the motion picture academy for taking 40 years to expel Director Roman Polanski and only then because it was doing the same to Bill Cosby. Polanski was convicted of raping a 13-year-old girl in 1977.

He fled the country. He's lived as a fugitive ever since. Yet, the Academy has continued to shower him with nominations, even gave him an award in 2003 with a standing ovation from the crowd. So, this should have come with an apology attached.

GIGOT: Kate?

BACHELDER ODELL: Paul, this is a hit this week for a young woman in Utah, who was indicted by the online mob for the high ten of wearing a Cheongsam prom dress. So you know, the social justice wars keep reaching new lows, but the reason this is a hit for her is because she refused to back down and said, it is a beautiful dress and it was modest and that's why I wore it and I'd do it again. So, it's good news that we have a young lady who is not caving to the mob.

GIGOT: All right, Allysia?

FINLEY: So, this is a miss to California Governor Jerry Brown, who this week denounced EPA Administrator Scott Pruitt for proposing to rollback fuel economy standards. He said that this is evil and we will fight evil wherever it rears its ugly head. He kind of takes a religious view, I guess, you would say, to climate change...

GIGOT: He is Jesuit trained.

FINLEY: Yes, but maybe, there should be some separation between church and state here.

GIGOT: Okay, Dan.

HENNINGER: Paul, I giving a hit to the city of Detroit, Michigan which had to file for bankruptcy after being left for dead by its public unions several years ago. Well, this week it was released from the financial oversight and the state of Michigan, which have controlled its budgets and contracts. Detroit in fact has produced surpluses for the last three years. It is good to see a once great American city on the way back.

GIGOT: And Michigan is a real success story in the last eight years. It's really had a comeback.

HENNINGER: Rick Snyder has been great.

GIGOT: And remember, if you have your own hit or miss, be sure to tweet it to us @JERonFNC. That's that is it for this week's show. Thanks to my panel. Thanks to all of you for watching. I am Paul Gigot. I hope to see all of you right here, next week.


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