Sen. Toomey on move to curb Trump's trade authority

close

Video

Sen. Toomey on move to curb Trump's trade authority

New proposal would require Congress to sign off on any plans to impose tariffs and other trade restrictions based on national security concerns.

This is a rush transcript from "Journal: Editorial Report," June 9, 2018. This copy may not be in its final form and may be updated.

PAUL GIGOT, FOX HOST: Welcome to the "Journal: Editorial Report." I'm Paul Gigot.

A highly-anticipated report from the Justice Department's internal watchdog is reportedly expected to fault former FBI director, James Comey, for his role in the Hillary Clinton e-mail probe, citing multiple missteps by Comey and other officials at the Justice Department, including former Attorney General Loretta Lynch. That report, by Justice Department Inspector General Michael Horowitz, was delayed again this week and is now set to be released next Thursday with Horowitz to testify Congress on June 18th. So what's behind the delay and what should we be looking for in the final report next week?

Let's ask Wall Street Journal columnist and deputy editor, Dan Henninger, and columnists, Kim Strassel and Bill McGurn.

So, Kim, what do you expect? What are you looking for from the I.G. report next week?

KIM STRASSEL, WASHINGTON COLUMNIST: Well, from some of the reporting that's been out already, it would appear that the report is going to go very directly at Comey and other senior leadership for violating protocol, meaning their handling of some things and defying authority, and with relations, for instance, to Comey's press conference that he held clearing Hillary Clinton, which he didn't run past other senior Department of Justice attorneys, their handling of this late find of Anthony Weiner laptop, and the decision to notify publicly that they were reopening the Hillary Clinton probe. But I think these are important because they will get to the question of whether or not -- the basis of this entire FBI investigation, whether it was handled properly, is now what the special counsel is using to base his on and whether or not there are fundamental flaws from the start.

GIGOT: Bill, this is not -- this probe is not looking into the whole Trump campaign/Russia question. That's a separate issue. What about -- Kim focused on the parts close to the election, but really this is going to go back, we hope, to before the exoneration, that public exoneration that Comey offered, to get to some of the inconsistencies we already know about because, for example, the Peter Strzok e-mail.

BILL MCGURN, COLUMNIST: Right.

GIGOT: Tell us about that.

MCGURN: I don't think we need a report to know that James Comey should have been fired long before Donald Trump did it. It was just his timing. We recommended that --

(CROSSTALK)

GIGOT: We opposed his confirmation when, Bill, when Obama nominated him.

MCGURN: Right. Part of it was the actions that Rod Rosenstein laid out in the memo for President Trump, too, about the interventions, not just at the end of the campaign but at the beginning. Look, it seems at every level of the investigation -- let's remember, this is an investigation that the Democrats demanded --

GIGOT: That's right.

MCGURN: -- because they believed Director Comey threw the election to Trump by undermining Mrs. Clinton at the last moment. There's probably case that he may have cost her votes. But that was because of his original sin, which was the July press conference, usurping power. So you say it doesn't have anything to do with Russian investigation. That's true. But it's the same characters, Peter Strzok, Lisa Page, Mr. McCabe, whose wife accepted money for her campaign in Virginia from Hillary-related people. It's going to give us a lot more detail. Let's remember, when it comes out, it's just the first step. Then Congress is going to want interview some of these FBI officials and we are told some other agents that have their own tale to tell.

GIGOT: You think Peter Strzok and Page and the rest of these people are going to testify?

MCGURN: I think they are. And I think we are going to learn their emails-- I mean, look, Peter Strzok and Lisa Page, the FBI, they're the biggest blabber mouths, you know, in history. They provide a timeline because, anything they knew about, they blabbed to each other. It's a good timeline alongside the other developments.

GIGOT: Dan, what about the report this week that Andrew McCabe, the former deputy director of the FBI, who has been telling different sides of the story than James Comey, that he has asked for immunity in order to testify? What do you make of that?

DAN HENNINGER, COLUMNIST & DEPUTY EDITOR: I make of that that Andrew McCabe feels he has significant legal liability related to the inspector general's report, and we are talking about criminal liability as well. And, you know, the thing that I am trying to focus on with this report is that Mr. Horowitz, the inspector general, said that he would try to look at whether any of these decisions were made for what he calls improper considerations, improper considerations, in other words, politics. Bill was mentioning Peter Strzok and Lisa Page who, among emails, clearly suggested that they were in a panic over the possibility of Donald Trump becoming president. So the question is, did the FBI handling the Hillary e-mail servers and going forward at the highest level go off the rails and become politicized. And that is what I'm really going to be looking for in the inspector general's report.

GIGOT: Kim, let's turn the subject to the Russia side of this. What do you make of House Speaker Paul Ryan joining Trey Gowdy in saying that what he seems to suggest that the FBI was not out of line in asking an informant to -- to insinuate himself with the Trump -- some Trump campaign officials. What's going on?

STRASSEL: Well, I think what was important about that Paul Ryan statement was the fact that he added that they still needed to see the documents, that they still had a lot of digging to do. I think what we take from that is that Paul Ryan was essentially saying that Trey Gowdy has taken Rod Rosenstein and Christopher Wray at their word when they say that they didn't do anything improper. And the argument being they're Trump appointees and so they should have the benefit of the doubt. But the fact that even Paul Ryan said we need to continue looking into this means that they know that they still haven't seen what they were asking for and that that might tell a different story.

GIGOT: All right, so more to come on all of these stories.

When we come back, President Trump claiming the absolute right to pardon himself. It's just the latest question of executive power raised by the Mueller probe. We'll examine the constitutional issues at stake when we come back.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: I'm not above the law. I do have an absolute right to pardon myself. But I will never have to do it because I didn't do anything wrong and everybody knows it.

(END VIDEO CLIP)

GIGOT: That was President Trump Friday saying that he has the absolute right to pardon himself, the latest constitutional question to come from the Mueller probe. In a letter to the special counsel in January, the president's legal team went even further with claims of executive power, saying, quote, "It remains our position that the president's actions here, by virtue of his position as the chief law enforcement officer, could neither constitutionally or legally constitute obstruction, because that would amount to him obstructing himself. And that he could, if he wished, terminate the inquiry or even exercise his power to pardon if he so desired."

David Rivkin is a constitutional attorney who served in White House counsel's office and Justice Department in the Reagan and George H.W. Bush administrations. I should add David is also a frequent contributor to the "Wall Street Journal."

Welcome.

DAVID RIVKIN, CONTRIBUTOR: Good to be with you.

GIGOT: Does the president have the power to pardon himself, just as a constitutional matter?

RIVKIN: Absolutely. Leaving aside the political wisdom of this. This is actually an easy question. The text of the constitution puts only two limitations. It has to be an offense against the United States and it cannot be used in cases of impeachment. Then Charles Pinckney introduced the proposal of the language involved, he indicates at the time it was analogous to a royal prerogative, which included at that time power to pardon any offenses against, except for impeachment. And there was a debate at the time which involved whether or not treason should be removed from the list of offenses and its most serious offense for which he can be pardoned. That debate was resolved in favor of the original text. This is one of the few constitutional issues that there's no serious doubt. The president can pardon absolutely anybody, including himself.

GIGOT: So what about the response, then, that this means, in essence, the president is above the law because he could presumably pardon himself even if he were accused of corruption?

RIVKIN: I understand. But this is a classical rhetorical argument. To say the president is above the law begs the question of what the law is. The pardon power is plenary, which is to say absolute. And the check on the exercise of his power, as many other instances in the constitutional architecture, is another political response and abusive power, and that power is impeachment.

But to be honest, I sort of chuckle when I hear analogies to the king, which, by the way, in this case, is appropriate. The pardon power is analogous to the royal prerogative. And by the way, the notion that nobody can be judging his own case ignores the proposition that the Supreme Court has articulated in several cases dealing with pardon. It's not a judicial power, OK?

GIGOT: Right.

RIVKIN: He's not judging anybody. He's deciding that a given pardon is in public interest.

GIGOT: Well --

RIVKIN: And if he's wrong, he will be punished for it, impeachment-wise.

GIGOT: Well, that the -- so what you're saying is, under the Constitution, the check on his authority is political. It is that the Congress of the United States -- well, the public can obviously vote him out after one term. But also the Congress of the United States has the power to impeach him. And, of course, they define, Congress define what is are high crimes and misdemeanors.

RIVKIN: Absolutely. Again, let me emphasize, this very issue was debated in the context of excluding treason involving a number of framers and the answer was put forward by Pinckney, is that if a president -- the scenario was, if a president engages in treasonous acts, pardons his associates --

GIGOT: Right.

RIVKIN: -- so they cannot testify against him, and the answer was he will get impeached.

GIGOT: OK, you raised -- you imply that you think it would be a bad idea politically to pardon himself. Explain that.

RIVKIN: At this point in time, it would be a bad idea. There was an argument to be made, which actually made, as you know, Paul, a number of months ago, when the investigation was still going, I suggested that in lieu of firing Mueller, which I thought was a bad idea and still is, you can deprive him of his jurisdiction by pardoning everybody. But that was before all of the indictments that came out. At this point in time, it just would not be judicious.

GIGOT: Because it would look like her was attempting to cover up, even if he has nothing to cover up?

RIVKIN: That would be the perception.

GIGOT: OK. So when you suggested pardoning, you were saying everybody, that included Hillary Clinton, anybody involved in Clinton e-mail case.

RIVKIN: Yes.

GIGOT: Just basically sweep everything clean of this issue and --

(CROSSTALK)

GIGOT: -- then put it all behind us?

RIVKIN: No, no, not entirely behind. But one caveat. We were suggesting at the time letting Congress, a forlorn hope, have Congress seriously investigate with nobody being able to take the Fifth. The whole idea was to treat it as a public policy political exercise and not an investigatory judicial exercise.

GIGOT: Right, get to the bottom of it for the American people and tell us what happened.

What about the claims in the president's lawyer's memos that came out last week about the obstruction issue and whether or not, in firing James Comey as FBI director, that could be determined to be an act of obstruction of justice. I gather you agree with the president's lawyers. Why?

RIVKIN: I agree with the president's lawyers. Made the same case to you back last December. It's simple. It's not that the president can never obstruct justice. There are circumstances in which he can, like bribing a witness. But while the president is exercising core constitutional powers of his office, like firing people, hiring people, pardoning people, telling people what to do, he cannot possibly be engaged in obstruction because, to allow Congress to pass statutes that hold him accountable criminally here, in fact, would impede ability to function as a robust chief executive. It's a very simple argument.

GIGOT: What if, for example, the president would fire an assistant U.S. attorney or an FBI director because he knows that those people are investigating friends of his who are corrupt and might testify against him. In that case, can he still have the right to fire them and not be obstructing?

RIVKIN: He's right. Again, the important thing, just like with pardons, if he's doing things in a way that amounts, in fact, politically serious and damaging exercise, he can be -- he can be impeached.

But let me tell you, the problem with holding the opposite argument is, you can literally hobble the president and his exercise of his core functions. And remember this, the president is in a unique position. The president's personal interest, the president's interest as the chief. How is Article III courts supposed to discern whether or not he pardons Sheriff Arpaio for a good reason or a bad reason, or he fired Comey for a good reason or bad reason.

GIGOT: Thank you, David. Fascinating constitutional debate. Good to see you.

RIVKIN: Pleasure.

GIGOT: Still ahead, voters in eight states went to the polls on Tuesday setting the stage for some of the most important races of the November midterms. We will have the takeaways from the biggest primary night of 2018 when we come back.

(COMMERCIAL BREAK)

GIGOT: Both Republicans and Democrats getting some good news this week as primary voters headed to the polls Tuesday in eight states. We begin in California where GOP businessman, John Cox, parlayed an endorsement by President Trump into a spot on the November ballot for governor where he will face off against Democratic Lieutenant Governor Gavin Newsom. And Democrats avoided shutout in some key congressional races in the Golden State's jungle primary, keeping open their path to taking back the House this November.

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

Allysia, did Democrats get what they wanted out of this primary?

ALLYSIA FINLEY, EDITORIAL BOARD MEMBER: I think for the most part they did. They got a slot in top two in November in the seven big competitive districts that Hillary Clinton won in 2016. Gavin Newsom is at the top of the ticket and he has a clean path to victory in November. Cox is going to be a long shot.

GIGOT: The Republican candidate.

FINLEY: The Republican candidate will be a long shot. And for the most part, aside from state Senate race where there was -- a Democrat was recalled, denying Democrats a majority, it was a pretty good night for Democrats.

GIGOT: What about the argument from one of our former colleagues, John Frome (ph), that, in fact, six of those seven competitive seats the Republican share of the two-party vote was actually higher than it was for the Democrats and, therefore, the Democratic candidate and, therefore, that that has tended in the past to be a good indicator of what might happen in November.

FINLEY: Right. I think the problem with that is if you look at the Republican votes here compared to 2014 and 2016, it's about five to 10 points lower then. And if you just take the difference between the primary, primary vote and the general vote, you're probably -- you're probably looking at losing 4 or 5 of those seats this year.

GIGOT: It could be that many if -- unless the Republican --

(CROSSTALK)

FINLEY: Really turnout increased in November, that's right.

GIGOT: OK.

So, Dan, Allysia talked about the gas tax, the state Senate repeal. It's interesting because gasoline already almost four bucks a gallon in California. Obviously, drivers in that state don't like it. Could this be an argument that John Cox, the Republican, could use to maybe do better than people think out there in the governor's race?

HENNINGER: Oh, yes, absolutely. At the margins out there in California people are upset about the cost of living. And, you know, I think House majority leader, Kevin McCarthy, was correct that it was important to get John Cox on the ticket, may not win, probably won't win, but you're going need Republican turnout in California. And in six of those seven districts that we were just talking about, the voters, although they went for Hillary the last time, they're predominantly Republican. And they -- Democrats have nominated progressives in the districts, and it's not clear at all that voters in those six-swing districts are progressive. And so if you can drive Republican turnout, it's possible the Republicans are going to hold on to a majority of those seats.

GIGOT: Kim, let's talk about another race in November now setting up. Robert Menendez, the two-term Senator from New Jersey, only got 62 percent of the vote against a Democratic challenger, who basically had no campaign, reported spending essentially no money. What does this suggest about whether or not a Republican could beat, Bob Hugin, the Republican, can beat Menendez in November?

STRASSEL: Democrats should be worried about that. It was one of the surprises of Tuesday night. This Democratic competitor to Menendez spent almost nothing. Hugin, however, running in the Republican primary spent a lot of time, or at least some, publicizing the fact that Senator Menendez had been admonished by the Senate for essentially doing the work of donors. He lobbied the Health and Human Services Department on behalf of a donor, helped get that donor's girlfriend's visa to come into the country. That does not result in a conviction. Even though he was charged, the charges were dropped, but the Senate did admonish him. And it shows that New Jersey voters are concerned about corruption. And if Republicans were to put a little bit of money into this, it could be surprise pick-up.

GIGOT: That's the key, putting money in, isn't it?

FINLEY: Right.

GIGOT: He's already spent $7 million of his own money just in the primary.

FINLEY; I think that's right. The national Republican senatorial campaign is going to put money into this. We saw, in 2014, Ed Gillespie, in Virginia, polls tightening in fall, they did not go into the race. Maybe if they had, maybe Republicans would have one more seat.

GIGOT: Oh, they would have. I think he would have beaten him.

All right, Dan, just to finish up -- we don't have a lot of time -- Martha Roby, Republican congresswoman from Alabama, forced to a runoff with a challenge from a former member of Congress, Bobby Bright, and people are saying because she had been critical of Donald Trump during the 2016 campaign. Is that now potentially fatal in a Republican primary?

HENNINGER: Well, we will find out. Martha Roby, when the "Access Hollywood" tape came out, Martha Roby was extremely critical of Donald Trump. Now she's a conservative voter right down the line in the House. She only got 39 percent of the vote and she's been forced into a runoff. And we will find out in Alabama just how much political purity is required to serve in the House in Alabama.

GIGOT: Thank you, Dan.

Thank you, everybody.

Still ahead, with final preparations underway for Tuesday's historic Singapore summit, our panel weighs in on what would make the Trump-Kim sit- down a success.

(BEGIN VIDEO CLIP)

TRUMP: We're going to have a great success. I don't think it will be in one meeting. I think it will take longer than that.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

TRUMP: This will not be just a photo-op. This will be, at a minimum, we will start with perhaps a good relationship. And that's something that's very important toward the ultimate making of the deal. I'd love to say it would happen in one deal, may it can. They have to denuke. If they don't denuclearize, that will not be acceptable.

(END VIDEO CLIP)

GIGOT: President Trump this week vowing that Tuesday's sit-down with North Korean leader, Kim Jong-Un, will be more than a photo-op. Final preparations are being made for the historic summit as President Trump arrives in Singapore this weekend following a contentious G-7 summit in Quebec. So what does Trump want? And what should we expect from the meeting?

We are back with Dan Henninger and Bill McGurn, and "Wall Street Journal" editorial board member, Mary Kissel.

Mary, president says maybe a great success, maybe a moderate success. How would you define success?

MARY KISSEL, EDITORIAL BOARD MEMBER: One thing that we don't want, Paul, the opposite of success would be for President Trump to get sucked into talks that last for months if not years, which is what George W. Bush did. Of course, that gives Kim and the Kim regime more time to develop weapons of mass destruction. So a success in Singapore would be to get the regime to commit to complete irreversible and verifiable denuclearization. That's what Secretary of State Mike Pompeo said this week that he wanted. I think that's a long shot, and especially so since you hear President Trump starting to walk back and say, well, we might not get it now, it might take a couple of meetings --

(CROSSTALK)

GIGOT: Yes, that's -- I mean, I think that this is a victory for Kim just for showing up in the sense that he gets to appear on the same stage with the American president, Mary, but if you are talking about an outcome here, you said complete, verifiable, denuclearization, I mean, does he have to -- does Trump have to come out with some kind of a promise on that and maybe even a timetable or a process?

KISSEL: Yes, I think he does. I think it would be a real setback for the American president to leave without getting anything, although he says that he will walk away from a bad deal. He has at least made that statement. Pompeo was also very careful, too, to say that if there was no deal done or no good deal on the table, the U.S. pressure in terms of sanctions would increase. I do hope that's the case.

My worry here, Paul, is that Kim will say, come on, Mr. President, let's have peace in our time, and we can have China come in to oversee denuclearization, we can do it in stages, and, hey, you can have a whole new market of exports, we can do deals here. I think there's a real risk that Trump backs away from the red lines the administration has set. Let's hope he doesn't do that.

GIGOT: Well, Dan, twice before, American presidents have agreed to terms, deals with North Korean leaders, both times, they involve promises of denuclearization, and even including, in one case, taking down a reactor, the Pyongyang reactor, only to renege on that later after the U.S. had offered concessions at the start.

DAN HENNINGER, COLUMNIST & DEPUTY EDITOR: Yes, but I think the difference here, Paul, is those presidents thought there was time to negotiate. The difference with Kim Jong-Un now is that we believe, most specialists believe that they are within perhaps 24 months of being able to produce a deliverable nuclear weapon, a missile. And that is something that's time frame that Kim can use to benefit by stretching out negotiations. And I really, Paul, I would try to lower expectations for the meeting in Singapore. This is not like negotiating with the old Soviet Union, where you had a foreign policy structure. This is one individual, Kim Jong-Un, who is virtually like a character out of James Bond movie. But he is running a huge armed camp. And I think the president, our president, Trump, has to sit down and take the measure of whether this is someone that we think we can do business with.

GIGOT: Well, let's put the issue from the American side on the table, Bill. The president is a guy who shoots by instinct.

BILL MCGURN, COLUMNIST: Right.

GIGOT: He operates on instinct. He's not somebody who dives in briefing books, who understands the nuances of exactly the uranium enrichment program and the plutonium program and what it takes --

MCGURN: Of course, that's the Jimmy Carter strength.

(LAUGHTER)

GIGOT: No. And I'm not saying he can't, therefore, achieve an outcome.

MCGURN: Right.

GIGOT: All I'm saying is that this is somebody who is going to go in there and he's going to do it a lot on his own instincts.

MCGURN: Yes. I'm not so worried about that in the sense that he has Mike Pompeo at state and John Bolton at national security. I couldn't think of two better people to be advising him. But my test is whether he achieves his goal, actually, denukes the peninsula. And if doesn't, he might get some fanfare now but we're going to know, probably before he's re-elected, that is was a failure.

(CROSSTALK)

GIGOT: -- yes.

MCGURN: And failure, in this case, would mean a capacity by Pyongyang to hit the U.S. So I think -- I think it's perfectly reasonable to be skeptical. I remember in the 90's, when Bill Clinton stared across and said, if you develop a nuclear weapon, it'll be the end of your country, and now we are negotiating with the grandson about a nuclear weapon.

GIGOT: Mary, what do you think Kim Jong-Un wants out of this?

KISSEL: Well, he wants U.S. troops off the peninsula. He wants a peace treaty. And he wants to cooperate with China so that they can achieve joint goal of pushing the United States not just out of peninsula but out of north Asia. Ultimately, the stated North Korean goal is to conquer the south under a North Korean regime. That's the whole point of the regime itself. So that's what makes me skeptical that he's going to give up nuclear weapons, which helps him achieve that goal. You basically have to undermine the whole existence of the regime.

By the way, too, Paul, we have to mention, there have been a lot of concessions on the U.S. side. North Korea didn't want John Bolton involved. They're criticizing him. He's taking a backseat. Trump pulls away from the table and they send nice, big letter, and Trump says, OK, we will go back. The president will sit at a table legitimizing the regime. You know, that's a lot of good will given here on the U.S. side. Let's see what's really reciprocated here.

GIGOT: All right. Thank you all.

Still ahead, worried about a trade war with U.S. allies, a bipartisan group of Senators is pushing a plan to give Congress the final say over some of President Trump's trade action. We will talk to Pennsylvania Senator Pat Toomey about the proposal, next.

(COMMERCIAL BREAK)

GIGOT: A bipartisan group of Senators moving forward this week with legislation that would curb President Trump's trade authority. Tennessee Senator Bob Corker unveiled a proposal Wednesday that would require Congress to sign off on any plans to impose tariffs and other trade restrictions based on national security concerns. The measure would curtail the president's authority under Section 232 of the Trade Expansion Act, a provision most recently used to impose steel and aluminum tariffs on Canada, Mexico and the European Union.

Pennsylvania Republican Pat Toomey is a cosponsor of the measure. I spoke with him earlier.

(BEGIN VIDEOTAPE)

GIGOT: Senator Toomey, welcome.

The president is justifying his steel and aluminum tariffs on national security grounds. What do you think of the argument?

REP. PAT TOOMEY, R-PENNSYLVANIA: I don't think you can make the case, Paul. As you know, a good three-quarters of all the steel we consume in America we produce ourselves. And importing the balance is not a threat to national security. By the way, our defensive needs are about 3 percent of our total consumption. So to suggest -- and furthermore, our number-one and number-two sources are Canada and Mexico. And with Canada, we have a trade surplus, even in steel, so there's just no way that I can grasp how this is a national security threat.

GIGOT: He's using the authority Congress has granted him under the Trade Expansion Act of 1962.

TOOMEY: Right.

GIGOT: So he's not acting illegally.

TOOMEY: Correct.

GIGOT: He has this authority. So what can Congress do about it? Can you stop it?

TOOMEY: What Congress needs to do is take this authority back. I don't think it was ever a good idea to hand it over to the administration. Of course, we have been doing that are for decades with all kinds of authorities in and out of trade space. But the fact is the president is, in my view, misusing the national security provisions as a way to promote a protectionist trade policy. I think virtually every Republican Senator disagrees with this approach. It's time that we took this authority back. And so there's an amendment to the National Defense Authorization Bill that Senator Corker and I are pursuing that would do exactly that. It would make a presidential decision to impose tariffs and use the 232 provision as the justification, such a decision would require the consent of Congress if this amendment were to pass. And I think it's a good step.

GIGOT: All right, now, your majority leader, Mitch McConnell, I hear, is lukewarm on the idea of the amendment because he says it's futile. That is, if the Senate passes it, if you can do that, and then the House passes it, and that's not a guarantee. Then the president can always veto it, and then you have taken a vote and divided Republicans for no purpose. What do you think of that?

TOOMEY: Yes. What I think is that is we are not potted plants here. It's OK to disagree with the president at times, even a president of one own's party. And for me, it's such a time, and my responsibility to do what I think is right for Pennsylvania. And I think trade barriers and tariffs are a bad idea. So I think we should pursue this. I don't know where it ends. There's bipartisan support for this amendment. I don't know how many votes it gets. Maybe it gets more than two-thirds. We just don't know until we have the vote and let it play out. So that's what I think we should do.

GIGOT: Is this also about, from your point of view, sending a message to the president that says, look, don't blow up NAFTA, for example, and be careful about where your trade policy is heading because you could do damage to the economy?

TOOMEY: Well, I think actually - honestly, I think the president is already doing some damage. Now, let me caveat that, which I think the economy is doing fabulously well. I think it's terrific and prospects are great. But one thing that could be a self-inflicting wound that could really hamper the growth that we would otherwise have would be a trade war. And, you know, up until now, the president has threatened and suggested lots of policies, but only last week, did he actually go ahead and impose these tariffs on Canada and Mexico and the E.U., our allies, our friends. One of the many ironies is we buy almost no steel from China. China is a real problem for a variety of unrelated reasons. That's what we ought to be focusing on in my view. And, yes, I think we, as Republican Senator who support trade, we ought to send the message to the president that we are going to stand up for what we believe in.

GIGOT: All right, now, where do you think the Democrats are on this? Because I think I hear them playing both sides on this. Claire McCaskill, Heidi Heitkamp, two Democrats up for re-election, are opposing the president's metals tariffs. But then you have Chuck Schumer and Sherrod Brown and others, of Ohio, saying, well, wait a minute, he's not protectionist enough.

TOOMEY: Yes.

GIGOT: Where are the Democrats on this? Can you get them on your side for that amendment?

TOOMEY: I suspect that they will be divided. The hard-core protectionists will vote against the amendment because they see it as pushing back on tariffs and they love tariffs. The more moderate, centrist, and the rare free-trading Democrats, if you will, might very well support it. So I think they'll be divided. And you know, we will see. Republicans might be divided as well. That's why, you know, you have to have the vote and find out where it lies.

GIGOT: A lot of Republicans who support the president say, don't worry, this is all part of a grand negotiating strategy to get better deals and, don't worry, he's not going to follow up -- follow through on all of these.
Do you detect some grand strategy here that is going to turn out well in the end?

TOOMEY: So here is my problem with that. The goals that they have with respect to Canada and Mexico are pretty well articulated in the NAFTA negotiations, and the administration's goals are terrible. I mean, they want to have the deal expire. They want NAFTA to go away. They want to --

(CROSSTALK)

TOOMEY: Yes. They want to eliminate the investor dispute mechanism, which is really, really important. They've got these countries' specific component requirements, which defeats the purpose of NAFTA. If I thought that there were a really good constructive goal, and this was just kind of an unfortunate tactic to get to that goal, that would be -- you know, that would be a legitimate conversation to have. I don't see that with respect to Canada and Mexico.

GIGOT: And do you see some damage already among Pennsylvania users, consumers of steel and aluminum?

TOOMEY: Oh, Paul, I've got a list that's very, very long of requests that have been made by the -- gosh, there's probably hundreds of companies in Pennsylvania that use steel and aluminum and they have all kinds of problems, supply problems, pricing problems. These tariffs, they are so many more people that are using steel than there are that produce it. It's definitely having counterproductive effects in Pennsylvania.

GIGOT: Senator Toomey, thanks for being here.

TOOMEY: Thanks for having me, Paul.

(END VIDEOTAPE)

GIGOT: When we come back, the Supreme Court rules in favor of a Colorado baker who refused to custom bake a cake for a same-sex wedding. So was the 7-2 decision a victory for religious victory or a setback?

(COMMERCIAL BREAK)

GIGOT: The Supreme Court this week ruled in favor of a Colorado baker who refused to make a custom wedding cake for a same-sex couple in one of the mostly closely watched cases of the term. The 7-2 ruling, though, not a clear victory for religious freedom with majority opinion that suggests the win could be short-lived.

We are back with Dan Henninger, Bill McGurn and Allysia Finley.

Dan, how do you read the ruling, victory or setback?

HENNINGER: Well, I read it as a victory, a small victory for religious freedom. I mean, it defended the baker's free exercise of his religious beliefs. But, you know, there's a strong view out there that say, if the commission, which it insulted his beliefs, if they remained neutral, then he may not be able or future people may not be able to defend themselves. Because there's a strong belief among liberal justices that there should be no religious exemptions for antidiscrimination laws. In other words, say the Little Sisters of the Poor and contraception, the Affordable Care Act, that sort of thing. And I think that issue is still very much in play out there among the judiciary. This is a temporary victory.

GIGOT: Allysia, Elena Kagan was explicit in her concurrence. She was of the seven. But she said explicitly, if they had not shown, been -- if they had been neutral in applying the principles, in other words, if they had just kept their antireligious bias quiet, the commission could have punished Phillips.

ALLYSIA FINLEY, EDITORIAL BOARD MEMBER: I think that's right. I think they are laying up the decision for a court to go press further in the opposite direction. As long as the commission applies it neutrally across the board, does not -- no bias towards a baker or a photographer, then they can punish him for expressing or practicing his religious beliefs.

GIGOT: Is that why you think Breyer and Kagan went along, they were kind of setting this -- sort of trying to say, let's interpret this majority decision by Kennedy that it would allow us to do that down the road?

FINLEY: I think that's right. I think there's also some questions, well, maybe they are trying to be consistent to where they came out on the travel ban where they are taking the position that Trump's statements are -- made bias the whole process.

GIGOT: I see an expression of bias.

FINLEY: That would taint the rule-making.

GIGOT: Interesting, Bill, three justices agreed, conservative justices, but they filed concurrences.

MCGURN: Right.

GIGOT: Gorsuch on free expression and Justice Thomas on free speech and Samuel Alito associated himself, of course. It is -- why would they do that --

MCGURN: Well --

(CROSSTALK)

GIGOT: -- if they didn't fear that Dan and Allysia's interpretation was right?

MCGURN: I would say just go back to the original question. It was a victory in the sense that a defeat would have been catastrophic. These people, these other justices I think see that this decision could open the way for other defeats down the line, if we are going get into motives and so forth, rather than different rights.

Look, I think one of the things very personal to me is we've already had some adoption agencies that no longer can do adoptions because they are not good with same-sex marriage.

(CROSSTALK)

GIGOT: Catholic Social Services in Philadelphia has now been ruled out of being able to --

(CROSSTALK)

MCGURN: The next step is moms and dads. Can they adopt if they don't support this? That'll be the kind of cases coming up I think right around the corner.

FINLEY: I think there are already cases. The only thing Kennedy really rules out is the Catholic priest cannot be forced to marry a same-sex couple. Otherwise, he generally seems to suggest that public accommodations would triumph over religious freedom.

GIGOT: That's the one explicit case he references.

MCGURN: Right, right.

GIGOT: Not these other ones.

MCGURN: You have Justice Kennedy, who told us we have the right to define own existence, but he can't give a ruling, any guidance on liberty wider than this baker. It's a lot like it's -- it's so narrow, it's almost like it doesn't apply to anyone else.

GIGOT: All right. We have to take one more break. When we come back, "Hits & Misses" of the week.

(COMMERCIAL BREAK)

GIGOT: Time now for our "Hits & Misses" of the week.

Kim, start us off.

KIM STRASSEL, WASHINGTON COLUMNIST: Paul, former President Bill Clinton dug himself quite a hole this week over the question of whether he really adequately ever apologized to Monica Lewinsky. I think all that analysis misses the point. What came out very clearly in his interviews is that he doesn't feel sorry at all because the Clintons still do not believe any of the normal rules apply to them. Whether it is land deals, cattle futures, servers or interns, the Clintons believe they get to live apart. This is a mess to the former president for, again, exhibiting that attitude.

GIGOT: All right.

Bill?

MCGURN: Paul, a hit to Howard Schultz, the Starbucks chairman, who may run for president. In an interview with CNBC, he complained that the Democrats are moving too far to the left. We have a $21 trillion debt and he wonders how we will pay it. He says he cannot imagine us paying it without four percent growth sustained. I do not think he will sell that message in the Democratic Party, but he deserves a lot more than a Wall Street Journal hit if he can make the case of four percent growth on a Democratic debate ticket.

GIGOT: I would like to hear that.

(LAUGHTER)

All right, Mary?

KISSEL: I have a hit that really is more of a celebration of a life of Kate Spade, who tragically took her life this week at the age of 55. She is the classic American rags-to-riches, entrepreneurial success story, Paul. She grew up in the Midwest, went to the Big Apple, New York City. Worked her way up "Mademoiselle" magazine, and then with her own money and that of her partner, then-husband, started Kate Spade, which brought classic good taste and style to really millions of American women. I have personal feelings for Kate Spade.

(LAUGHTER)

My father bought me a business card holder when I went off to work to make me feel professional. And I still have it. We will miss her, but we will enjoy her contribution to society as a fashion --

(CROSSTALK)

GIGOT: All right, Dan?

HENNINGER: My hit to the Philadelphia Eagles football team, not for refusing to come to the White House, but for killing the ridiculous practice of having a professional team show up at the White House. They should stay home with the fans who rooted for them.

GIGOT: All right, thank you all.

Thanks for watching. Thanks to my panel. I'm Paul Gigot. Hope to see you right here next week.

END

Content and Programming Copyright 2018 Fox News Network, LLC. ALL RIGHTS RESERVED. Copyright 2018 CQ-Roll Call, Inc. All materials herein are protected by United States copyright law and may not be reproduced, distributed, transmitted, displayed, published or broadcast without the prior written permission of CQ-Roll Call. You may not alter or remove any trademark, copyright or other notice from copies of the content.