Democrats file suit over Trump's new acting attorney general

This is a rush transcript from "Special Report with Bret Baier," November 19, 2018. This copy may not be in its final form and may be updated.

(BEGIN VIDEO CLIP)

CHRIS WALLACE, ANCHOR: If Whitaker decides in any way to limit or curtail the Mueller investigation, are you OK with that?

PRESIDENT DONALD TRUMP: Look, it's going to be up to him. I think he's very well aware politically. I think he is astute politically. He is a very smart person, a very respected person. He is going to do what's right.

I would not get involved. And all these people that say I'm going to end the investigation, they have been saying that now for, how long has this witch-hunt gone on?

(END VIDEO CLIP)

BRET BAIER, ANCHOR: The president talking about Matt Whitaker, his acting attorney general. In conversations with Senator Lindsey Graham and others, Whitaker has said he doesn't have any plans to do anything with the Mueller investigation. He is also not planning to recuse himself.

But that has not stopped the worry, especially among Democrats, and action. Democrats filing a lawsuit, saying "Because the Senate has not consented to Mr. Whitaker serving as an officer of the United States, his designation by the president to perform the function and duties of the attorney general violates the Appointments Clause. Indeed, if allowed to stand, Mr. Whitaker's appointment would create a road map for the evasion of the constitutionally prescribed Senate advise and consent role."

With that let's bring in our panel and start there: Jonathan Swan, national political reporter for Axios, Mara Liasson, national political correspondent for National Public Radio, and Mollie Hemingway, senior editor at The Federalist.

OK, Jonathan, how concerned are they at the White House about the Whitaker, this effort on a constitutional grounds legally, and where he stands?

JONATHAN SWAN, AXIOS: I don't get the sense they are concerned at all. What they are concerned about is there is a body of opinion inside the White House that he is going to be very difficult, if not impossible to confirm. There are people that argue that.

But the president is very happy with Matt Whitaker, privately has been basically gushing about him. He has used the word "courage" to describe him, thinks he has been very strong. And what Trump likes is that he hasn't recused himself. He hasn't stepped down, and that he is holding the line. So, Trump is very, very happy with Matt Whitaker. Whether that means he will end up being a permanent appointment, I wouldn't go that far. I think it's much more likely he is not. But Trump is very happy.

BAIER: Mara?

MARA LIASSON, NATIONAL PUBLIC RADIO: Yes, at least for now he is overseeing the Mueller investigation. That means he can pass on, he can weigh in on indictments, on subpoenas. He can, if he wants to, share information about the investigation with the White House. So there is a lot that he can do for the president even if he is only the acting attorney general.

BAIER: Mollie, any pitfalls here?

MOLLIE HEMINGWAY, THE FEDERALIST: I think what you are actually seeing here is just a lot of frustration that finally someone is in charge of this Mueller probe who is someone who the president has put in charge.

As far as the argument that this is something that presidents can't do, presidents have been temporarily filling appointments like this going back to Thomas Jefferson. So the idea that Donald Trump is doing something wildly different than other presidents is ludicrous.

But I think what's really happening is people had such hope that this special counsel would be used to unseat a democratically elected president and they thought that maybe the Russia thing would go somewhere or obstruction. And despite all the baiting, Trump is not even removing anyone or stopping this probe at all. So I think people are just frustrated that that big plan is not coming to fruition.

BAIER: OK. Also, on the Mueller investigation, the president is saying that he may or may not step down -- I mean, he may or may not answer questions beyond what is he writing. And he was talking about that with Chris Wallace, an interview really was chockfull of news this weekend. Take a listen.

(BEGIN VIDEOTAPE)

WALLACE: There's going to be no sit down interview nothing written or in person on obstruction?

TRUMP: I would say probably, probably. I can change my mind, but probably.

WALLACE: What are the odds, one in 100?

TRUMP: I don't do odds. I gave very --

WALLACE: You ran a casino, sir.

TRUMP: You're right, and very successfully, actually. We gave very, very complete answers to a lot of questions that I shouldn't have even been asked, and I think that should solve the problem.

(END VIDEO CLIP)

BAIER: So do we think this is coming to a head now, Jonathan?

SWAN: I think it's been very clear for some time that the president was not going to do an in-person interview. This is the first time, though, with Chris Wallace that he has actually acknowledged as much publicly. Trump has always dangle out the carrot, I want to do it if only they would be fair to me, I may do it, et cetera, et cetera.

His legal team has been unanimously of the view it's a terrible idea. It doesn't matter whether you are talking about the early team of Ty Cobb and John Dowd, or the current legal team. Nobody thinks this is a good idea. It now is the first time the president has acknowledged as much publicly.

It should be said, though, that his legal team, it's an important -- I wouldn't call it a victory, but at least a small victory, maybe, that they managed to not answer anything, according to them, on obstruction by limiting their answers to what happened before he joined the White House. That's a sort of concession from the Mueller team.

BAIER: Mollie?

HEMINGWAY: It's also -- we should be reminded that the special counsel was set up to investigate treasonous collusion with Russia to steal an election. And so, of course, as soon as that didn't pan out, people tried to change it to obstruction or change it to other things. But no lawyer worth his salt would have the president speaking on a limitless probe.

But I am concerned that people who seem to care about rule of law don't care that we still don't actually know what the scope of the special counsel is. This is a limitless probe. This is a person who has all the powers of the FBI and the CIA and an endless budget and we don't even know what the scope is. And to act like this is OK or this is proper procedure, I'm hoping we have people who care about rule of law enough to know that special counsels shouldn't be set up as political vindictiveness or revenge because people you don't like win elections.

BAIER: Mara, the drama that was the hard pass up in the air with Jim Acosta at CNN is over. Sarah Sanders putting out a statement, "We would have greatly preferred to continue hosting White House press conferences in reliance on a set of understood professional norms. We believe the overwhelming majority of journalists covering the White House share that preference. But given the position taken by CNN we now feel obligated to replace previously shared practices with explicit rules," say they are not going to take away his hard pass, they're not going to suspend it, but they are going to have rules of decorum and list those. And if you don't follow the rules, they have the option to say hit the road.

LIASSON: That's right. A couple things. When the judge said that they had to temporarily reinstate Acosta's pass, at that time the administration said they were going to yank it again at the end of that interim period. They have changed their mind. They've come up with these pretty limited rules. They only regard press conferences, basically you get one question, no follow-ups, unless the president or the administration official who is giving the preference allows to you give one. And I think that will put a lot of onus on other journalists if somebody doesn't get an answer, then the person's colleagues presumably would ask the same question.

BAIER: The rules are there, the bullet points. What were you going to say, Jonathan?

SWAN: I was just going to say, I think what's also being missed in this is it wasn't a First Amendment ruling. It was about due process. So this sets a predicate for the future that they've now set up these rules and they have a set of rules that they can then make further. I wouldn't be surprised if we haven't heard the last of this is my way of -- my very clumsy way of saying this. I wouldn't be surprised if they do actually down the pass revoke somebody's hard pass and use this set of rules as at criteria.

BAIER: Mollie, real quick.

HEMINGWAY: It just seems the White House figured out a really good way out of its problem. These are very reasonable rules. I'm actually surprised that the White House Correspondents Association didn't have them in force prior to this. Jim Acosta being the mascot for the White House press corps is not good for the White House press corps. So it seems like a win all around for everybody.

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