Protests erupt amid calls for Virginia Governor Northam to resign

This is a rush transcript from "Your World," February 4, 2019. This copy may not be in its final form and may be updated.

NEIL CAVUTO, FOX NEWS ANCHOR: All right, the big wait for the big speech.

Welcome, everybody. I'm Neil Cavuto, and this is "Your World," getting ready for the president's State of the Union address tomorrow night.

So much going on concurrently, it's hard to fit it into one show. But what we can tell you right now is, the president will be talking a lot about that border fight he's having right now and funding for a wall, but not necessarily try to rush a conference committee that wants to get something done by next Friday.

That could prove easier said than done. Then the president would presumably push an emergency lever that would almost assuredly be challenged in the courts.

There are not a lot of givens on this, though.

Kevin Corke gearing up for that speech now at the White House -- Kevin.

KEVIN CORKE, FOX NEWS WHITE HOUSE CORRESPONDENT: Good afternoon, my friend.

Here's what you need to know. Obviously, this speech will be coming, Neil, on the heels of the longest partial government shutdown in our history, and about 10 days before another possible work stoppage.

Now, that said, the president, we expect, will talk a lot about not just what has happened in the past, but, moving forward, what we can do to come together, that cooperation part of at least an excerpt that we were able to get here at FOX News.

I want to share part of that excerpt with you. This will just sort of give you some idea of what we expect him to sort of hammer home as he addresses congressional lawmakers, and indeed the American people. He's expected to say this.

"Together, we can break decades of political stalemate. We can bridge old divisions, heal old wounds, build new coalitions, forge new solutions and unlock the extraordinary promise of America's future. The decision is ours to make."

But, as you know, Neil, that will mean working with a speaker, Nancy Pelosi, who has said categorically there will be no funding for a wall along our southern border, no matter what's happening down there, about which, well, at least to hear the president tell it, could mean announcing his intention to declare a national emergency tomorrow night.

(BEGIN VIDEO CLIP)

PRESIDENT DONALD TRUMP: There have been plenty of national emergencies called, and this really is an invasion of our country by human traffickers. We're going to have a strong border, and the only way you have a strong border is you need a physical barrier. You need a wall.

And anybody that says you don't, they're just playing games.

(END VIDEO CLIP)

CORKE: Did you hear the last thing he said there? They don't believe that. They're just playing games.

He also tweeted this, Neil. "With caravans marching through Mexico and toward our country, Republicans" -- he's speaking specifically to those lawmakers on Capitol Hill -- "must be prepared to do whatever is necessary for STRONG border security," all caps there on strong.

"Dems do nothing. If there is no wall, there's no security. Human trafficking, drugs and criminals of all dimensions, keep out."

Now, as you can also imagine, Neil, there is plenty of tweaking going on for the president's remarks even at this hour. There's also a rehearsal before the speech is delivered. Our coverage will begin tomorrow night at 8:00 p.m. Eastern time. I'm looking forward to bringing it to you, but, for now, back to you.

CAVUTO: That's so wild. That's when Fox Business' coverage begins.

CORKE: How about that?

CAVUTO: Isn't that -- that -- what a small world.

(LAUGHTER)

CAVUTO: All right, thank you, my friend. All right, Kevin Corke.

In the meantime, the battle going on in Virginia, and the Democratic governor there, will he or won't he? Ralph Northam still not the better of those photos and words, and now a growing chorus call up among some of the state's most prominent Democrats, to say nothing of national ones, from  Kamala Harris, all the way up to Joe Biden, saying the better part of valor would be, Governor, step down.

But there are some wrinkles there and problems there.

Mike Emanuel on Capitol Hill with the latest.

Hey, Mike.

MIKE EMANUEL, FOX NEWS SENIOR POLITICAL CORRESPONDENT: Neil, good afternoon.

The chair of the Congressional Black Caucus says it is clear it is time for Governor Northam to go.

(BEGIN VIDEO CLIP)

REP. KAREN BASS, D-CALIF.: So, he basically has shown that he is not honest, he's disingenuous, he needs to resign. And if he has any -- any way that he wants to regain his integrity, he would resign, and then participate in the discussion.

(END VIDEO CLIP)

EMANUEL: Virginia Governor Ralph Northam's explanations have shifted over time.

Now, as Northam tries to figure out what he will do, other lawmakers say it is critical for him to consider what is best for Virginia.

(BEGIN VIDEO CLIP)

STATE REP. DONALD MCEACHIN, D-VA.: He's lost the authority to lead. He's lost the authority to govern. He has to resign.  It's in the best interest of the commonwealth. It's in the best interest of the party.

(END VIDEO CLIP)

EMANUEL: Virginia Democrat Senators Mark Warner and Tim Kaine, both former governors, and Congressman Bobby Scott issued a statement on Saturday after speaking with Northam, saying -- quote -- "We called Governor Northam to tell him that we no longer believe he can effectively serve as governor of Virginia and that he must resign. He should step down and allow the commonwealth to begin healing."

And they're not alone.

(BEGIN VIDEO CLIP)

REP. DAN KILDEE, D-MICH.: When you have a standard, you have to live by it. And I think Governor Northam is coming to understand that in ways that he perhaps never imagined.

I'm one of those who feels that this is a disqualifying moment for him. I think it makes it very difficult for him to govern a state as diverse as Virginia.

(END VIDEO CLIP)

EMANUEL: It is pretty clear Democrats would prefer to be on offense against Republicans, rather than playing defense defending the Virginia governor -- Neil.

CAVUTO: All right, thank you, Mike, Mike Emanuel in the Capitol.

Just keep in mind, Virginia is a state that has increasingly gone from read to purple, some say even blue right now, with a sweep of the top offices under Democratic control. And its 13 electoral votes are highly prized.  In 2016, Hillary Clinton won them, which is why so many Democrats are putting pressure on the governor to get out now, because they don't want this lingering into the next presidential race.

Fox News contributor Gianno Caldwell here, Democratic strategist Robert Patillo, and The Federalist's Mollie Hemingway.

Mollie, that's what they're thinking about, right? They're thinking about 2020. And they don't want this and the governor to be an issue then, do they?

MOLLIE HEMINGWAY, THE FEDERALIST: Well, yes.

And there is actually another part of this story that's kind of been left out of some of the coverage. All of Governor Northam's problems -- I'm a Virginia and I live there -- began last week when he embraced this very radical late-term abortion bill and seemed to argue even in favor of infanticide or leaving babies to die who had been born if the mother wanted them to.

That is actually why this photo was released, was by apparently a medical school classmate was upset at those remarks that he made. So already he's he's kind of lost the trust of a lot of Virginians by this embrace of this radical thing that even people who are pro-choice don't think is appropriate.

Then he has this photo that's an additional problem, but that's what everyone's kind of focusing on. And now he says he wasn't in the photo or he doesn't believe he was. And so I don't know how easy it is going to be to get rid of him, because he doesn't really have many options other than clinging on for dear life here.

CAVUTO: Robert, I know all the Democrats who have urged him to step down, but short of that, to impeach him over something that is 35 years ago, that's going to be kind of tough, right?

I mean, so he almost, to make the Democrats happy, leave on his own accord, because an impeachment for an act that was well before he assumed office, that's going to be an uphill climb, right?

ROBERT PATILLO, DEMOCRATIC STRATEGIST: Well, two points.

One, I do think it's important for him to step down for the good of the state, for the good of the party, for to good of the nation, that it does not benefit anybody other than Ralph Northam to continue in office.

He's lost the authority to govern the state properly. Secondarily, I don't think it'll be an uphill battle for impeachment, because there's this thing in law. There's this thing when you're passing the bar called character and fitness and called your moral character.

So, if you are appearing in a photo in blackface or in a Klan's outfit, and you submit that to the yearbook, whether it's 25 years ago or 25 minutes ago, you do not have the moral character that is necessary in order to govern.

CAVUTO: Well, maybe so. I know how passionately you feel about it, Robert. That's going to be an uphill climb.

Now, I think, in the end, a lot of people going to look at just say, resign already.

But, Gianno Caldwell, the reality here is that we can question the timing of this yearbook photo release and the fact that no one, in their due diligence -- and this is where the Gillespie campaign might have dropped the ball...

GIANNO CALDWELL, FOX NEWS POLITICAL ANALYST: Yes.

CAVUTO: ... did simple research to get a yearbook and all of that.

But, be that as it may, what -- what's the ramifications of all of this, in your eyes?

CALDWELL: Well, to me, I think this is a major national teaching moment for African-Americans all over this country; 87 percent of African- Americans voted for this governor.

And that's the reason why he sits in office right now today. The fact that we get over 90 percent of African-Americans that have an allegiance to the Democratic Party, one who claim time and time again that they're the purist party, that there's no racism and bigotry in the Democratic Party, and we continue to see instances like this, and any other where that's to the contrary.

So I think for the nation in and of itself -- and Democrats are obviously looking at political ramifications, like any party would -- the real truth is, there needs to be a conversation on race when it comes to the black community and racism and what's real racism, because we know that Democrats often, when they don't like a policy proposal of the Republicans, they will say it's racist.

So now the real meaning of racism has been diluted, and it's because of instances that the Democrats have continued to allege when it didn't exist.  But, however, this is a real act of racism. And now we have a lame-duck racist governor in the state mansion in Virginia.

CAVUTO: Mollie, you touched on this at the outset, but do you think, had he not been pushing this legislation that would have allowed extremely late-term, as in day-of, abortions, that any of this would have come to light?

HEMINGWAY: Well, apparently, The Washington Post is reporting that the reason why this came to light is because people were upset that he was pushing that, and that's how it got released.

This is something that is...

CAVUTO: But it wasn't a Democrat who released it, right? It was...

HEMINGWAY: We don't -- we don't know.

CAVUTO: OK

HEMINGWAY: We just know that someone was upset about those comments.

CAVUTO: Understood.

HEMINGWAY: Which were pretty extreme.

And it is interesting. Many Democrats should be asked whether they also support this extreme bill that is -- that was just passed in New York, it was tried to be passed in Virginia. Vermont is about is -- about to look into passing one that is somehow even more extreme.

And this is going to be a major issue for Democrats. They have done a very good job of denouncing the photo which showed the Ku Klux Klan outfit and the man in blackface.

(CROSSTALK)

CAVUTO: But not that legislation.

(CROSSTALK)

CALDWELL: Although there's some that we haven't heard from. We haven't heard from Barack Obama.

And we haven't seen these major press conferences when they say they want to impeach President Trump and they want this person or that person to resign. We haven't seen it to the same caliber in which they do when it comes to Republicans.

So, let's be clear about that.

PATILLO: I think Gianno makes a really important point there, which is I think we need to have an across-the-board standard that, whether you're a Republican or a Democrat, that...

CALDWELL: Absolutely.

PATILLO: ... if you are -- if you appear -- if you have this in your path, step down now, before somebody has to out you.

Let's make sure we clean the slate and go forward in America with policies that are against these sorts of issues of racial discrimination or racial bias in our community. It should not be a partisan issue. It should not be a Republican or a Democratic issue.

President Obama, President Trump, Hillary Clinton, everyone else needs to call for Northam to resign, because it does not benefit America to have him in office.

CAVUTO: But, Robert, do you feel that many in your party were getting kind of holier than thou on this whole issue, saying that anyone who wears a MAGA hat is a racist by definition? In a sort of a karma sense, it's coming back to bite them.

PATILLO: Well, what happens is, you have these extremists on both political spectrums.

You have the 5 percent on the far left, 5 percent on the far right who drive the conversation. For regular working-class Americans, you care about what's on the table, if you have good education, if we're not getting invaded by other countries, and the economy is going well.

So let's take those fringe elements out, these Hollywood celebrities who think the MAGA hat is something evil, and get back to a conversation about what really affects Americans. And what affects Americans and Virginians is a governor who has lost the ability to govern one of the largest states in the nation.

CAVUTO: All right, so it looks like, if the lieutenant governor, Justin Fairfax, were to assume office, he's African-American.

A number charges have been raised on him that he says are false. But this could be -- and I'm just curious, Mollie, from your vantage point -- a problem for Democrats going up to 2020, that this state that they had I wouldn't say comfortably slipped into their pocket might be slipping out.

HEMINGWAY: Well, it was a state that seemed pretty firmly in the hands of Democrats.

And it is interesting that Governor Northam ran a campaign where he accused Ed Gillespie, his opponent, of racism, and unfairly did so.

CAVUTO: I remember that. I remember that.

HEMINGWAY: But, yes, Justin Fairfax also is having some problems. And that MeToo problem issue is also a big one for Democrats this -- heading into 2020.

So it'll be unclear whether the push to get him in as governor will be as strong in light of those.

CAVUTO: All right, guys, thank you very much.

There's some breaking news I did want to alert our viewers about here.

CALDWELL: Thank you, Neil.

CAVUTO: Take a look at the corner of Wall and Broad. We were up 175 points on the market.

The market is trying to start its seventh winning week in a row, so it succeeded today, something we have not seen in years, for example, for the Nasdaq. But this torrid pace continues , with very good earnings, including just lately Alphabet of Google fame beating on earnings and sales.

Still, the stock is down little bit here. Some of its costs are being closely scrutinized here as it builds up, but Google Alphabet out with numbers that did beat the Street, the stock nominally down, but stocks in general were up today on confidence that a shutdown will be averted, even if it means the president's going to have to declare an emergency.

You're watching "Your World."

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

KIRK LIPPOLD, FORMER COMMANDER, USS COLE: There is not a division within the Venezuelan people. There are divisions within the levers of power that are being exercised by Maduro.

And, at this point in time. I think that the opposition in fact does have momentum.

(END VIDEO CLIP)

CAVUTO: All right. That was former USS Cole Commander Kirk Lippold telling me on "Cavuto Live" this weekend that he thinks the opposition in Venezuela does in fact have the momentum to ultimately succeed, put Juan Guaido in there as the new president, the official president, and with the military's backing.

Now, a lot of that depends if the military goes along. Precious few have bolted from Nicolas Maduro. That's because they're living high on the hog and loving it, but not so necessarily the rank-and-file military types, who are more inclined, we're told, to support the popularly -- seen as the popularly elected leader, Guaido.

Now, Guaido has not been elected president, but he is the opposition leader, with that currency going for him.

And it is with that we take a read of all of this from Colonel David Hunt.

Colonel, I guess it depends on who the military ultimately aligns itself to. And we're told eventually, especially if they're granted amnesty, it will -- it will be Guaido. Do you buy that?

COL. DAVID HUNT (RET.), FOX NEWS MILITARY ANALYST: No, not yet.

The corruption in Venezuela, you already touched on, with the military and the government. And it's at least down to the NCO corps, the mid-level management. So we don't know.

Hopefully, the intelligence community knows where they would go, because there's -- there's no dealing with taking away the current president without the backing of the military in Venezuela.

As run down and bad as the country is, military support is going to be critical.

CAVUTO: All right.

Maduro has been seen on TV almost around the clock there. There's some old video there where he's dancing in the streets and all this. But he does not enjoy the popular support he once did. He has the military. He has threatened even the president, our president, if he were to even consider bringing soldiers.

Now, we are going on that hastily sketched note that John Bolton had that showed 5,000 troops to Colombia next door to Venezuela. Do you buy that, that we would do something like that? Or is that just a message we're trying to send?

HUNT: I hope it's the latter.

I don't see U.S. tanks in Caracas as beneficial to anybody. This has got to be taken in the context of what's happening in Afghanistan, Iraq, what happened in Vietnam. We -- once -- taking Venezuela is not an issue for the U.S. military. It's what we do with afterwards.

And that's where we have failed miserably over the last 50 years, in nation-building. So it seems to me that this is a State Department, intelligence -- and intelligence work, and you have got to figure out what the countries around it like Colombia want to do, and how we can assist that and influence it.

But it can't be direct military use on that peninsula in Venezuela at all, as we got too many other places where that didn't work. Not a good idea.

CAVUTO: So even if this turns to complete anarchy and violence -- and, of course, you wonder and fear that, as more supplies and food and medicines make their way into the country, and the military, let's say, all of a sudden doesn't allow it. It can easily get bloody.

HUNT: And it probably will.

My issue is whether the U.S. should be directly involved in that blood.  And I'm saying no. You want to help the Colombians, which we are very, very close, and the countries around Venezuela? You want to help, yes, with logistics, intelligence money.

But we shouldn't be putting steps in the -- footsteps inside Venezuela, unless they're clandestine operations run by the intelligence community.  But military -- direct military support in here is just a bad idea for a whole bunch of reasons, one of which, we have got -- we have got our hands full with Syria, Afghanistan and Iraq.

And we're considering how or when we should pull out of those. Those are 19-year wars, Neil, and they haven't gone well.

CAVUTO: Colonel, always great talking to you, my friend. And thank you for your incredible service to this country as well.

HUNT: You're welcome. Thanks.

CAVUTO: Colonel Hunt.

All right, the president is going to be stressing unity and common ground between the parties, but given the possibility of another shutdown over the wall or an emergency declaration to avoid a shutdown over the wall, then what?

After this.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

CAVUTO: The president certainly seems to be signaling, Congressman, that he's going to declare an emergency.

How would you feel if he does?

REP. TOM GRAVES, R-GA.: The president is right to begin looking at all the different steps he can take and should take.

I mean, there's a lot of tools at his disposal. So, he's looking for alternatives to make sure that he is carrying out his duty as president, and that's to make sure our country is secure.

(END VIDEO CLIP)

CAVUTO: All right. He's an important fellow to follow.

Georgia Republican Congressman Tom Graves was telling me this past weekend that he's part of that bipartisan negotiating conference committee group made up of Republicans and Democrats who are trying to hammer out an accord that would avoid a government shutdown.

But they're still miles apart on this, Democrats saying no money for a wall, the president and Republicans insisting on some money for a wall, but they're far, far apart.

That might prompt the president to take matters into his own hands, if, by next Friday -- not this Friday, but next Friday, when the deadline comes, and they're still far apart, just to declare an emergency and get cracking on the wall.

Let's get the read on that from Florida Republican Congressman Matt Gaetz.

Congressman, good to have you.

If the president did that, how would you feel?

REP. MATT GAETZ, R-FLA.: It sounds like I would feel a lot like the markets are feeling today. They seem to prefer an executive order or an executive declaration over a shutdown.

And so I think, if the president has to get to that conclusion, it's largely a consequence, Neil, of the Democrats not negotiating in good faith.

I think it was on the first day of the conference committee coming together that Nancy Pelosi said there would be zero dollars for any physical barrier at the border. And I think it's that lack of good faith that is leading the president closer and closer to a decision to use his executive authority.

CAVUTO: But it wouldn't be wise, I take it, Congressman, if the president were to telegraph that in his address tomorrow, right, that, in other words, he would give this conference committee time to sort this out, hopefully come up with a deal that would avoid that?

GAETZ: I don't know, Neil.

If you look at the president's recent comments, he doesn't seem to have a lot of confidence in the conference committee.

(CROSSTALK)

CAVUTO: No, you're right. No, you're right. He certainly has telegraphed it, yes.

GAETZ: And if there's anything that's a Trumpian moment, 50 million people watching, all of the members of Congress together, it would seem to be a moment where he could make the case for the legitimacy of executive action.

If he doesn't, in fact, take it during the State of the Union, I think you will see him largely make the case.

CAVUTO: It's interesting, Congressman.

And then you have heard what your colleagues on both sides of the aisle have been saying, but I think it's down to semantics. I think Nancy Pelosi has talked about something about a barrier, if the president wants to reinforce something, et cetera.

Now, she's quite clear that she doesn't like the word wall. The president quite clear that he is open for alternatives to a wall, per se, but still a wall, a structure of some sort.

So it's almost in just the wording of it. Do you know whether there is an effort right now among Republicans and Democrats to come up with another word for wall?

(LAUGHTER)

GAETZ: Yes, it may be the right reach for a thesaurus that saves us from a government shutdown or an emergency declaration.

But, ultimately, Neil, if we were a business in America or a nonprofit or a family, we'd be looking for a win-win out of this type of a conflict.  Unfortunately, in Washington, both sides are so hell-bent to see the other side lose, that they don't necessarily help to find the win.

CAVUTO: But the wall was an issue, right?

GAETZ: Yes.

CAVUTO: Now, you're right, quite right. It didn't used to be an issue.  Democrats were all for funding wall construction under Barack Obama, twice, one time under this president.

Now, I know things veered a little off course with that, and they say that their vote wasn't for what was ultimately bragged about by the president.

Still, the president has shown great flexibility on negotiating down and talking down the price of that. Is it your sense that the two sides are closer than you think, and an emergency measure might not be necessary at all?

GAETZ: No, I don't get that sense, because I don't believe the Democrats have defined yet what a win looks like for them.

For us, a win looks like $5.7 billion for a wall. Obviously, nobody gets everything they want in a negotiation, but...

CAVUTO: But you wouldn't say -- if it was $3.7 billion, you wouldn't walk away from that?

GAETZ: No, look, a crooked number in wall funding, something that doesn't start with a one, but maybe a two or three, that could be a pretty good spot.

CAVUTO: OK. All right.

GAETZ: But, look, Democrats haven't put a border security bill on the floor.

You will remember, Neil, Nancy Pelosi challenged the president, pass what you believe in while Republicans are in control, so that we can better negotiate.

We, in fact, did that. What Democrats haven't done is put what they believe in for border security on the -- on the floor. And I think that the inability to do that shows that there may be no bill that Nancy Pelosi can pass with Democrat votes on the border, because you got a part of her caucus that would support wall funding. You got a part of her caucus that thinks that borders and walls are racist and immoral.

And I think that's a very difficult challenge for her to be able to deal with, independent of the president and the Republicans.

CAVUTO: All right, Congressman, thank you very, very much.

I know you will have a busy day tomorrow and night watching the president's speech.

Matt Gaetz, from the beautiful state of Florida, in Washington, all right.

Now everyone is waiting to hear what Virginia's Governor Ralph Northam is going to do. Now, we're told that he has met with his cabinet and doesn't want to go out like this or to be branded a racist essentially for the rest of his life.

So, what is the fallout? What can be done to avoid that?

After this.

(COMMERCIAL BREAK)

CAVUTO: Let's say Governor Northam doesn't want to resign. You think he can be impeached? You might want to think again.

Remember, these are acts and pictures that go back 30-plus years, way before he was governor.

(COMMERCIAL BREAK)

CAVUTO: All right, so, hell no, he won't go, for now.

Virginia Governor Ralph Northam indicating right now that he has no intention of stepping down. He did meet with his cabinet, we're told, and he did discuss this.

And apparently what sticking in his craw, the notion, if he were to step down now, he would be labeled for life, doesn't like that. We don't know what the palace intrigue is.

We do know that, unless he resigns, it's a lot easier said than done to impeach the guy.

Let's get the read from Garrett Tenney in Richmond, Virginia -- Garrett.

GARRETT TENNEY, FOX NEWS CORRESPONDENT: Well, Neil, it appears Governor Northam may now be at least exploring the possibility of stepping down.

Sources familiar with the situation tell us that in the last 24 hours he has been meeting with senior members of his team to discuss his current situation, what his options are, and if he is able to continue to serve effectively as governor.

Now, on Saturday, he said if it became clear that he could no longer do that, he would be willing to explore the idea of stepping down. And over the last few days, nearly every member of his party has called on him to resign after that racist yearbook photo surfaced.

Today, the Republican speaker the House of Delegates added his voice to that, while also conceding that, if Northam doesn't step down, there is not a whole lot that lawmakers can do about it.

(BEGIN VIDEO CLIP)

KIRK COX, VIRGINIA STATEHOUSE SPEAKER: It's become clear to us by then that, regardless of the veracity of the photograph, the governor has lost the confidence of the people you and can't effectively govern.

I think there's a rightful hesitation about removal from office, because, obviously, you have to consider that, to some degree, you overturn an election.

(END VIDEO CLIP)

TENNEY: Lieutenant Governor Justin Fairfax, who would replace Northam if he steps down, is now responding to a report of a woman claiming she was sexually assaulted by him 15 years ago.

This afternoon, Fairfax said the allegation was absolutely false. He described the relationship as completely consensual. And he questioned the timing of this allegation becoming public.

(BEGIN VIDEO CLIP)

LT. GOV. JUSTIN FAIRFAX, D-VA.: There's also a reason that, at the moment, when people see what's going on in the Commonwealth of Virginia, they see our politics in a little bit of a flux, in a very serious situation that's going on, and they think that there's a possibility that I might be elevated to the governorship.

It's at that point that they come out with the attacks and the smears. And it's unfortunate. It really is, but it's sadly a part of our politics now.

(END VIDEO CLIP)

TENNEY: And Fairfax's office says it plans to take legal action against those involved in this accusation.

And we should note that we have reached out to the woman involved in this accusation several times today. So far, Neil, we have not heard back -- back to you.

CAVUTO: Thank you, Garrett, very, very much.

So it's a legal issue here.

When I can't understand a legal issue, which is pretty much all legal issues, I go to Judge Napolitano.

Judge, it just sounds like it's a lot easier said than done to force him from office.

ANDREW NAPOLITANO, FOX NEWS JUDICIAL ANALYST: The Virginia state constitution, which sets forth the grounds for impeachment, is almost the same as the federal, except it's very clear that it only applies to behavior that occurs during office.

So, quite frankly, the speaker of the General Assembly who was just quoted earlier in Gary Tenney's piece is correct. It would be impossible to impeach him. If he doesn't leave voluntarily, they are saddled with a governor who has the moral -- who has the legal ability to govern, but probably lacks the moral ability to do so.

CAVUTO: We had a guest earlier, though, Judge, saying about, well, he's lost the trust of the people, he hoodwinked the people -- I'm paraphrasing here -- so that would be grounds, that the office to which you arrived, you arrived disingenuously.

NAPOLITANO: I don't think so, not under Virginia law.

In fact, there's a piece of this weekend. And I got to give credit to this person, to Professor Dick Howard at University of Virginia Law School, who's the guru on Virginia law and the Virginia constitution.

And it's he who has opined -- and those of us who know him and respect hi mare following his guidance -- that the constitution doesn't permit that.  The check on people's character is made by the voters.

Now, look, there's another side to this. One of the most virulent racists in the modern era -- and if you looked at the language that he used, it would curl your straight hair -- was President Lyndon Baines Johnson.

And it was he who single-handedly gave the country the Civil Rights Act of 1964. So, sometimes, these -- these vicious white supremacists change 180 degrees.

CAVUTO: Look at Robert Byrd.

NAPOLITANO: Correct.

CAVUTO: Who was a former Klansman.

(CROSSTALK)

NAPOLITANO: Who led the charge with LBJ. And he was, of course, a former Klansman.

CAVUTO: But it doesn't dismiss the past, right?

NAPOLITANO: No.

CAVUTO: In this day and age, it's the past that's resonating right now, even though this is a case of something 30-some-odd years ago.

NAPOLITANO: And it is the past that has caused real hurt and real division and diminished the governor's moral authority to govern.

But, legally, he's on safe ground.

CAVUTO: Now, the premise that is also out there is, if you have then troubles and questions with the lieutenant governor -- and, obviously, they go on. I don't know whether it's secretary of state in Virginia. I don't know how their system works.

But this is like open season that goes back to comments or pictures, now, not like Justice Kavanaugh and high school, but yearbook photos in med school or whatever. But it's open season on stuff that goes back decades.  And in this social media age, what will it be in the future?

NAPOLITANO: I don't know the answer to that.

But, again, for the lieutenant governor, this event that he's been accused of, which he's denied, was 15 years ago. It didn't occur while he's in office, so this shouldn't impair his ability to succeed Governor Northam and to govern.

CAVUTO: Well, what if you don't have the support of the people you have to work with in the state legislature?

NAPOLITANO: When Barry Goldwater and Howard Baker famously visited Richard Nixon in August of 1974, and they said to him, you just don't have the base, you really can't govern anymore, no one will take you seriously.

It seems to me -- and we're in New York. They're in Richmond. But that the tipping point in Virginia. And I think..

(CROSSTALK)

CAVUTO: But they also were kind of telegraphing Richard Nixon. High crimes and misdemeanors, you will almost certainly be impeached.

NAPOLITANO: In Nixon's case, it was for events that occurred while in office. So there was that sword of Damocles hanging over Nixon, which is not hanging over Governor Northam.

(CROSSTALK)

NAPOLITANO: I don't know where it's going to go.

CAVUTO: So, short of resigning, he's not going anywhere?

NAPOLITANO: Short of resigning, he doesn't -- there's no legal way to make him go anywhere.

CAVUTO: Understood. Understand.

All right, Judge, thank you very, very much, the host of -- FOX Nation -- "Liberty File" on FOX Nation.

How is that going? That's a very long day.

NAPOLITANO: Pretty well. We had Roger Stone on again today.

CAVUTO: Oh, wow.

NAPOLITANO: Who made to me the argument he would make if Judge Jackson lets him speak to her before she imposes the gag order, which we all think she's going to do on Friday. She's probably not going to let him speak.

CAVUTO: But he's free to gag until then.

NAPOLITANO: He is free to gaggle until then.

CAVUTO: Right. Right. Right. Right.

NAPOLITANO: And gaggle, he is.

CAVUTO: And I have a feeling you won't gag him. All right.

(LAUGHTER)

NAPOLITANO: Not at all.

CAVUTO: All right, Judge, thank you very, very much.

We have a lot more coming up, including what the judge and I were chatting about, going way back in time, your yearbook, whether it's high school or college or med school. Expand it to social media postings, pictures of you on other people's sites, now going way, way, way back in time. How far, for how long?

After this.

(COMMERCIAL BREAK)

CAVUTO: All right, it's all about comments, pictures that go back in a yearbook more than 30 years ago. Fair game?

Of course, this comes not that many months after taking a look at Judge Kavanaugh's yearbook, a lot more innocent and a lot more curious than that.  It was a high school yearbook, but, again, this fixation on the past and, for that matter, sometimes the very, very distant past.

Is it fair game? Others say maybe it is if it's objectionable material that comes to light.

USA Today congressional reporter Eliza Collins, former White House Press Secretary Ari Fleischer.

Eliza, I'm looking at this and saying, well, this is just the new reality.  Anything and everything is fair game. And I think anyone running for office, for example, had better review their year books and a host of other things, right?

ELIZA COLLINS, USA TODAY: Yes.

Anyone running for office should be looking back at their past and looking at what they have done. It is certainly easier to get ahold of things like that now.

I mean, last week, this yearbook photo was published on a small conservative Web site, and it sort of went viral very quickly. That didn't used to happen in the past. Social media, the Internet has made it that way.

CAVUTO: Right.

COLLINS: But people looking into their political opponents' past is nothing new. Opposition research is a very real thing. And people running for office for a long time have had their teams sort of opposition research, check themselves.

And if you know something like this is in your past, it's in your interest to disclose it, to figure out how to move forward.

CAVUTO: Yes. That's what surprised me there.

And, Ari, obviously, it's amazing how this only now came to light. I think some of the opposition research team behind the Gillespie camp might want to sue the people who were pulling all that together.

But the fact of the matter is that this was hidden in plain daylight. So now what happens? What's the lesson learned here from this?

ARI FLEISCHER, FOX NEWS CONTRIBUTOR: And, Neil, let me just confess that my college yearbook has a picture of me for my graduation picture standing next to a poster of a New York Yankees cheerleader. I'm very proud of that picture.

(LAUGHTER)

CAVUTO: Well, at least you weren't voted most likely to put people to sleep.

So, anyway, but I digress.

(LAUGHTER)

FLEISCHER: That's correct.

CAVUTO: I digress. But go ahead.

FLEISCHER: But here's the deal. And there is a difference.

I think a high school yearbook, a college yearbook, you are a very different age and a much more tender age. You're not in the working world, as you are if you're graduating from medical school and what your yearbook is from medical school.

Look, people are already working two, three, four years in their career at that point because they're out of college. So it is appropriate to look at these things, but not for the high school or even the college level. I give people a tremendous pass at what they have done then.

They should evolve, they should change. Now, Northam's biggest problem, though, Neil, is that he originally said the pictures were of him, one of the two was of him. And now he says...

(CROSSTALK)

CAVUTO: Yes, he's been all over the map on this. No, you're right about that.

FLEISCHER: Yes. That's right.

If he had said from the start, neither one is me, neither is me, we would have been having a very different conversation. I just don't see how he can survive. He's lost the support of everybody important in the state of Virginia.

CAVUTO: You know, Eliza, I'm just wondering what the fallout of this is, as we're looking at this growing crowd of presidential candidates forming on the Democratic side.

And I'm sure, to a man or woman, they're going through yearbooks, they're going through social media postings. I noticed even in Kamala Harris' case, they're going back to a relationship with Willie Brown when she was in her 20s. So anything and everything is fair game.

But where does it end?

COLLINS: I don't know the answer to that.

And I do think we will have to see. I mean, this is a giant primary field.  Their teams are trying to basically make it so that their candidate makes it through. And they believe that uncovering something negative about another candidate will help their candidate. So we will have to see.

We will have to see what sticks, what doesn't. I think there's a real difference between someone's past relationship or even something they have said, a stance they had that they can explain sort of their evolution on, and a photo, a racist photo, when they were in medical school that they can't quite come up with the reasoning for.

So it really just depends what comes out and how people say -- how they defend themselves.

CAVUTO: But, Ari, I can remember with your old boss President Bush and when he was a young man, and there was getting pulled over, drunk driving.  And it was going back I think many, many decades.

FLEISCHER: Right.

CAVUTO: And I -- maybe that was a preview to coming attractions here, but that lingered for a while.

FLEISCHER: And what these things really measure is what the political marketplace will bear.

And what we're learning is, when it comes to racial behavior, it won't bear very much at all. We have become a much more willing to criticize society when people cross a racial line.

There are other lines, when it comes to maybe drinking and driving -- Beto O'Rourke can attest to this -- where society is a little more tolerant because they can understand you made a youthful mistake, don't do it again.

CAVUTO: Right.

FLEISCHER: This is the political marketplace, and every candidate will find their own way in it also based on their own leadership.

If somebody can convince somebody that that was part of my past, it is no longer who I am, that's how you deal with these things. If it leaves lingering doubts and question marks about you, then the marketplace will take you down, because it's a measure of who you are.

CAVUTO: All right, final word on the subject.

Ari, want to thank you. Eliza, always fun. Thank you very, very much.

All right, by now, you know the New England Patriots have done it again, a six-time Super Bowl champ.

Tom Brady is getting a great deal of attention, not only because he did it again, but he did it at 41. And he made it look like he was a 21-year-old.  There is a reason for that, that a lot of doctors are pointing to now, including one coming up next.

(COMMERCIAL BREAK)

CAVUTO: All right. I hate the Patriots. I'm sorry, New England. I just do.

(LAUGHTER)

CAVUTO: And I got to get over it, I know, but I'm jealous of you. I'm really jealous of this guy. He's, like, immortal. But he's a remarkable guy.

And he's an unusual physical specimen, because, at 41, he's doing things that a lot of 21-year-olds can't do. I don't understand how that's possible. I know that I hate him for it. But Tom Brady shouldn't be blamed for being a perfect physical specimen that defies his age.

Physician and surgeon Dr. Kelly Powers joins us.

It's the genetic lottery there, but there's got to be more, right?

DR. KELLY POWERS, WESTMED MEDICAL GROUP: Yes, I was going to say there's no question genetics plays a role here with Tom Brady, I mean, physically and, yes, he's kind of good-looking too, some people might say. I don't know.

CAVUTO: Oh, whatever.

POWERS: You know, you know.

So is age just a number? Well, if we look at him, and we look at Drew Brees, and Peyton Manning, and Ben Roethlisberger, these guys are defying the odds here, which is great.

CAVUTO: How do they do it? What are they doing?

POWERS: Well, I know for Tom Brady, Tom Brady is really into no-weight strength training.

So what does that mean? Resistant bands, tension bands, he's really into it. He says that he hasn't lifted a weight in almost a decade. So you know those tension bands, the ones that you have seen people at the gym doing.

CAVUTO: Right.

POWERS: It's elongating the muscle, instead of making it bulky, so not bulky, lengthening.

That's what he's saying is the key to his abilities.

CAVUTO: But he hasn't lost his strength, it appears.

POWERS: No.

CAVUTO: The only thing I saw similar, Doctor, was George Foreman, when he was coming back and boxing.

I'm told, because he was such a strong puncher, the boxing skills were never his to begin with. He was never very flashy or speedy, but he was strong. And strength like that doesn't deteriorate as rapidly.

POWERS: Right.

And look at Tom Brady. He's not one of the big, bulky linebacker guys that you see. So he calls it rotational athletes, meaning that quarterbacks, pitchers and even golfers are rotational athletes.

And those rotational athletes need to focus on, according to him, kind of that elongation of the muscle, again, that strength training, what he calls pliability. That's the buzzword.

CAVUTO: But he does other stuff. We all know he is meticulously slavish to his diet, but even when he eats the food he eats, and sleep patterns and all that. What do you know about that?

(CROSSTALK)

POWERS: I wish I can learn from him, my goodness.

I know. He goes -- he claims he goes to sleep every night at 8:00, 8:30, wakes up every morning at 5:00, 5:30. I'm already exhausted saying that statement.

(LAUGHTER)

CAVUTO: And it's consistent. He never veers from it, right?

POWERS: Consistent, consistent, exactly.

And his diet. He stands by an anti-inflammatory diet, which I do believe in.

CAVUTO: What does that mean?

POWERS: Yes, so that's your turmeric, your gingers, your organic veggies.  Tries to stay away from most meats.

He wrote the book "TB12." I'm actually reading it right now, because I can't really do cardio myself. So I'm learning from him and what inspiration he is.

(CROSSTALK)

CAVUTO: You're dealing with heart issues, right?

POWERS: Yes, for dealing with my own heart issues, right. And so I can't do cardio.

And I'm kind of trying to emulate him as best I can. But he's really into this...

(CROSSTALK)

CAVUTO: He doesn't eat any meat or very little meat.

POWERS: Very little meat.

(CROSSTALK)

CAVUTO: Which already sounds very hellish.

POWERS: I don't know when he has time for fun, but you know what? Winning a Super Bowl, that sounds pretty fun to me. So, hey.

CAVUTO: And he doesn't treat himself a lot, or what might be our definition of treating himself, and very disciplined about everything in his life, right?.

POWERS: Yes, mental -- let's talk about his mental health too. I feel like he's such an inspiration for mental health.

He has literally -- when he was in college, he went to see a sports psychologist. So, that's great. He's not afraid to ask for help and positive attitude. He's got this great positive attitude. We know stress increases cortisol, which is that hormone that increases weight gain, lowers our immune system.

And that's just a big hodgepodge of mess. So if you can keep yourself in that positive attitude, as he has done -- and, plus, look at all the critics.

CAVUTO: And he cheats a lot. Right? He deflates balls and all that. So that comes with that.

POWERS: I think my family will be happy you said that, and probably not happy I'm doing this segment.

CAVUTO: Right. Right. Right. I'm just jealous.

I always get razzing from my brothers in New England and all that.

But your sense of what he's doing is not impossible. He's not -- this is something we could all do, not necessarily to the degree he does, but there's not a time limit or an age limit on what you can do.

POWERS: Yes, I think these guys are defying the odds, but, again, personal chef, personal trainer, that stuff helps a little bit.

(CROSSTALK)

CAVUTO: Absolutely. They have access to things a lot of folks don't, right?

POWERS: Right, right.

CAVUTO: But amazing.

All right, Doctor, thank you very much. Feel well.

POWERS: Thank you. Thanks for having me on.

CAVUTO: Stay well.

Dr. Kelly Powers.

A lot more on this and the dieting and everything else that goes into living a good life, I guess, after this.

(COMMERCIAL BREAK)

CAVUTO: Fox Business, we're all over the president's speech tomorrow.

We have got Texas Congressman Kevin Brady, the former Ambassador to the U.N. Bill Richardson, Democratic fund-raiser Don Peebles, former Minnesota Governor Tim Pawlenty, and real-time market reaction across the world.  FBN.

Here's "The Five."
 
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