DOJ backs Trump's appointment of Whitaker as acting AG

This is a rush transcript from "Special Report with Bret Baier," November 14, 2018. This copy may not be in its final form and may be updated.

(BEGIN VIDEO CLIPS)

SENATE MINORITY LEADER CHUCK SCHUMER: We want to make sure that the acting attorney general does not interfere with the Mueller investigation, and we believe our Republican colleagues will join us.

SENATE MAJORITY LEADER MITCH MCCONNELL: No indication that the Mueller investigation will not be allowed to finish, and it should be allowed to finish. We know how the president feels about the Mueller investigation, but he's never said he wants to shut it down. I've never heard anybody down there say they want to shut it down. I think it's in no danger, and so I don't think any legislation is necessary.

(END VIDEO CLIP)

BRET BAIER, ANCHOR: A lot of talk on Capitol Hill today about Matt Whitaker, the acting attorney general. The DOJ putting out legal counsel opinion on the appointment, saying that they advised the president's designation of Mr. Whitaker on a temporary basis did not transform his position into a principle office requiring Senate confirmation, and they advised that he could go forward with that and be lawful. Others say that's not true. For example, John Yoo, a well-respected lawyer from the Bush administration, said Whitaker's appointment violates the appointment's clause clear text because he serves has attorney general even if in an acting capacity but never underwent Senate advice and consent. He goes on to question, if they challenge this, whether any action as acting attorney general will then come into question.

Let's bring in our panel, start there, a lot to talk about tonight: Tom Bevan, Real Clear Politics co-founder and president; Mollie Hemingway, senior editor at The Federalist, and Charles Lane, opinion writer for The Washington Post. Chuck, the DOJ seems confident in their precedent and their advice, but there's a lot of talk about whether that's accurate.

CHARLES LANE, THE WASHINGTON POST: I've done my best as a layman to sort through these various arguments, and I guess the way it looks to me is there was kind of choice of legal authority here the president had. He could have gone by one statute and one norm that says you go with the deputy in this situation. Another statute that the OLC, and this Office of Legal Counsel is relying on, that says no, you don't necessarily have to. You've got this temporary option of seven months. So people can argue about that endlessly, but I think what seems pretty clear about the politics of it is that Matt Whitaker is a more synthetic person to Donald Trump's position. Rod Rosenstein is somebody he has had a lot of quarrels with. That would've been the alternative position. So that tipped the balance and that's why he chose Matt Whitaker.

He is taking a risk that anything Whitaker does, quite apart from firing Mueller or anything like that, anything that Matt Whitaker does is or could be challenged in court later on, including things that President Trump is not going to want to have struck down in court.

BAIER: For example, the investigation into what the FBI did in the early part of the Trump campaign.

MOLLIE HEMINGWAY, THE FEDERALIST: Yes, there is a long precedent of putting people in positions like this so long as they are temporary, going all the way back to Thomas Jefferson presidents have done this. And generally speaking, all three branches of government have recognized this ability to do this so long as it's temporary. If it weren't temporary, then you really would have some problems.

But if you want to talk about people who aren't Senate confirmed, Bob Mueller is a great example of someone who never went through Senate confirmation process and has a limitless, financially limitless and otherwise limitless probe, counterintelligence investigation that's going on. People seem to think Rod Rosenstein would be better to be in charge of that instead of Matt Whitaker. Rod Rosenstein had a plethora of conflicts of interest from being involved in these investigations, from having signed one of the warrants to spy on a member of the Trump campaign to obstructing justice as Congress tried to investigate what's going on, to writing that memo about Comey getting fired that President Trump used. So if you're actually worried about conflicts of interest, Rod Rosenstein wouldn't be a good choice either.

BAIER: Obviously the biggest thing here is what happens with the Mueller investigation. You heard Senate Majority Leader Mitch McConnell say there is no indication that it's going to be shut down from the president and the administration. But there are Senate members like Jeff Flake and others who say we are not going forward with lots of things unless you protect Mueller. Take a listen.

(BEGIN VIDEO CLIP)

SEN. JEFF FLAKE, R-ARIZ.: Senator Coons and I are prepared to make it again and again until there is a vote on this vital bipartisan legislation on the Senate floor. And I have informed the majority leader that I will not vote to advance any of the 21 judicial nominees pending on the Judicial Committee or vote to confirm the 32 judges awaiting confirmation on the Senate floor until S-2644 is brought to the full Senate for a vote.

(END VIDEO CLIP)

BAIER: And Tom, that is the bill protecting Mueller. Remember, in this lame duck session, it's 51-49, giving Flake and others a lot more power.

TOM BEVAN, REAL CLEAR POLITICS: Right. That's valid for about another six weeks. And then Jeff Flake is gone and the Republican Senate caucus is going to be a little bit more conservative and a little bit more expanded. And I think that's an important feature, because Trump is going to have to at some point nominate new cabinet members, perhaps put Whitaker up for confirmation in the Senate, but also if he goes through a cabinet shuffle, he will have other cabinet officials that will need confirmation. And the fact that Republicans will have two more votes in the Senate gives them a little bit of running room for his nominations.

HEMINGWAY: We are years into a widespread investigation into this collusion theory, this theory that Donald Trump colluded with Russia as a traitor to steal the 2016 election, and we have no evidence supporting that. At the same time we have all sorts of evidence of wrongdoing at the FBI, that they surveilled their political opponents, that they were leaking against their political opponents, that they have obstructed justice, and we have no special counsel looking at those things. It is astounding that Jeff Flake would be concerned at this late date, having so little that there would be more of a desire --

BAIER: Sure, but you are not advocating shutting Mueller down before it's down, right?

HEMINGWAY: I don't actually even know what the scope of the Mueller probe is. I think that's something that Americans have a right to know. What is the scope? What are the limits? Is this something that can be used to just go after political enemies, or is it actually looking into what we were promised, which is treasonous collusion with Russia to steal the 2016 election?

BAIER: We shall see. Who knows, in a matter of weeks, maybe.

Here is the president on criminal justice reform.

(BEGIN VIDEO CLIP)

PRESIDENT DONALD TRUMP: Working together with my administration over the last two years, these members have reached a bipartisan agreement. Did I hear the word "bipartisan"?

(LAUGHTER)

TRUMP: The bill includes reasonable sentencing reforms while keeping dangerous and violent criminals off our streets. I urge lawmakers in both House and Senate to work hard and to act quickly and send a final bill to my desk. And I look very much forward to signing it.

(END VIDEO CLIP)

BAIER: Chuck, this is a big deal for supporters of this legislation, bipartisan legislation. Jared Kushner, the president's son-in-law, really pushing this effort up on Capitol Hill, not just prison reform but also sentencing reform when it comes to drug offenders and others.

LANE: It reminds me a little bit like the opioid legislation that they also passed before the election on a bipartisan basis in that, yes, it's great to see the two parties can work together on something, but this was the lowest common denominator in terms of sentencing reform.

BAIER: And we should put out, it's not through yet. They still have to get the votes.

LANE: They have to get the votes. The critics of criminal justice, federal sentencing and so on wanted a lot more in terms of reducing mandatory minimums and so forth and so on. This was about the least that they would settle for. Jeff Sessions, incidentally, was not enthusiastic about some of the provisions, although he supported some of the others. So, yes, I think actually on balance you'd have to say it's likely to go through.

And also I think the president wanted to strike a different note today. He's been reported to be kind of angry and ornery and saying untoward things to Theresa May on the phone, and he got to show a gentler, more results oriented face.

BAIER: And with the Democratic House coming in, signaling that you are ready to sign bipartisan legislation is probably at least an interesting hat tip.

BEVAN: I watched this today and wondered why they didn't do this before the election. This was Trump at his best, actually, standing there talking about -- we are still going to be tough on crime, we support law enforcement. This legislation is supported by law enforcement and it's also bipartisan. This might've been an asset to have 10 days ago, and Republicans 10 days ago, especially for folks in the suburbs.

BAIER: Yes, suburban voters, that's right. Panel, thanks.

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.