Rep. DeSantis: Special counsel not necessary, but may be better

This is a rush transcript from "The Story," May 17, 2017. This copy may not be in its final form and may be updated.

MARTHA MACCALLUM, "THE STORY" HOST: Once again, in a string of explosive stories this week, there is breaking news again tonight. The deputy attorney general, Rod Rosenstein, who wrote the letter that outlined the reasons for firing FBI Director James Comey has now pushed the Russia investigation to a Special Prosecutor. That person is former FBI director Robert Mueller.

Now, the president has fought hard to put this story that he sees, essentially, as an emperor who has no close situation behind him. But now, just four months into his presidency, he has a Special Prosecutor on this case. The Deputy Attorney General sent the statement out just a short while ago: "In my capacity as Acting Attorney General, I determined that it is in the public interest for me to exercise my authority and appoint a special counsel to assume responsibility for this matter. My decision is not a finding that crimes have been committed or that any prosecution is warranted."

The person at the helm of this new probe, as I said, former FBI Director Robert Mueller, well known to everyone in this country. He now has the power to impanel a grand jury, issue subpoenas, and to sign a slew of federal agents to this case. Mueller became FBI Director just days before 9/11. He served an extended 12-year term after his nomination by President George W. Bush and now, he is back in the middle of it in charge of an investigation that involves his successor, James Comey. So, in moments, we will be joined by Fox News senior political analyst, Brit Hume. But first, chief White House correspondent, John Roberts. Good evening, John.

JOHN ROBERTS, FOX NEWS CHANNEL CHIEF WHITE HOUSE CORRESPONDENT: Good evening to you, Martha. It's really interesting to see the Special Prosecutor being named now, a couple of days before the president heads out on his first European trip. In the middle, as well, of increasingly shrill calls from Democrats on Capitol Hill for a Special Prosecutor to be appointed. And right at the time that the president was interviewing candidates to replace James Comey as FBI Director, the timing of the notification that came from the Justice Department -- and we're told it was about an hour before the announcement was made public.

It was embargoing about 6:00 p.m. so that they probably put the notification sometime around 5:00 p.m. Would have been right when the president was talking to either the former Oklahoma Governor Frank Keating or Richard McFeely, who is another top official at the FBI about the job to replace James Comey. Now, for the White House, this is kind of a two-edged sword. First of all, it gets Democrats off their back but then, at the same time, as you mentioned at the top of this, just three months into his presidency, a special prosecutor has been named to look into a lot of the dealings surrounding the Trump campaign.

Now, this is different, we should point out than the Special Prosecutor - special counsel statute under with Ken Starr conducted that five-year long investigation into the Clinton administration. That statute was allowed to expire. Special Prosecutors, and now appointed by top officials of the Department of Justice, in this case, Rod Rosenstein. But it is also interesting to see that just a week after Andrew McCabe, who is the acting Director of the FBI said, we have enough resources to carry out this Russian investigation with Rosenstein independently, because he is the one who is in charge to the Russia investigation with Jeff Sessions recusing himself would say, you know what, I think it is best that a special prosecutor be named here.

Now, what the White House is going for is even though Mueller has all the power of a U.S. attorney; can subpoena, can impanel a grand jury, which will issue subpoenas and we assume that that's probably what will happen here. He is a hard-nosed investigator who goes to the facts of the case at hand. And unlike somebody like Ken Starr, who was always seen to be more of a political operative as he was an investigator, may just pursue the Russian investigation and not go off pursuing different tangents as Starr did for five years. Martha.

MACCALLUM: John, thank you very much. Joining us now: Brit Hume, Fox News senior political analyst. Brit, good evening to you. Your thoughts on this big development this evening.

BRIT HUME, FOX NEWS SENIOR POLITICAL ANALYST: I've always thought that these special councils, Special Prosecutors are dubious ideas. But while it's a dubious idea, it's a good appointment. Bob Mueller is universally respected, his reputation as a totally straight shooter is widely recognized. And he is the kind of grown-up who, in that job, may not feel compelled as some previous Special Prosecutors have to find a crime, whether one turns up at first or not.

In other words, I don't know that Robert Mueller is a kind of guy who will turn into Captain Ahab pursuing the great white whale. We remember, of course, the case of the Special Prosecutor Patrick Fitzgerald who was named to investigate the leak about - in the Valerie plane case, remember that? And he found out almost immediately that it came from the Deputy Secretary of State, but he continued to investigate long after that. And he tried to catch Karl Rove, I think, in a perjury trap.

They eventually gave up on that, but the investigation was way too protracted and went way far afield from its original purpose. That is why people worry about Special Prosecutors. And it's also the question of accountability, which it sounds from this announcement as if - that Mueller will still be accountable to the main Justice Department.

MACCALLUM: Yes. You know, it's interesting - this came from Rod Rosenstein, which it would have to, as we have established, but if you look back, you know, just over the last couple of weeks in terms of his involvement in this, there was a moment when the letter came out that he said that Jim Comey was being fired. The White House then said it's just because Rod Rosenstein is new here on the job and he took a look at all of this and decided that he had to go. He pushed back on that. Then, the president said, no, no, I was my idea, I had planned it all along. It may be that Rod Rosenstein wants to remove the politics of this and is pushing back a little bit by doing so.

HUME: Well, my sense is - Rosenstein, by the way, holds the job that when James Comey - excuse me, when Bob Mueller was named to be FBI Director back in 2001, he was holding down the job that Rosenstein now holds. So, that's an interesting bit of history there. But, Martha, I think the key here is that as we look at this, I don't really know how to assess this as regards to Rosenstein's efforts to get his name off, get himself off the hook is the man behind the Comey firing or whatever. It seems to me that he made pretty good and compelling case while Comey was not the right man for the job at this time and only to be later contradicted by the President, in terms of the President's own motivations.

But I would say this about Bob Mueller. He's 72 years old. He has had a very distinguished career as a prosecutor. Deputy Attorney General, and he, of course, was a U.S. Attorney for a time, and of course had a strong career as the FBI Director himself. So, he doesn't have a lot left to prove. He's going to need to mail some big named coon-skinned to the wall in this case in order to prove himself. He's capable I think in the way that a lot of Special Prosecutor seem not to have been, to go into a case, look for it, and if there's no compelling evidence of a crime, to let it go. We'll see.

MACCALLUM: So, if that's the case, should the White House welcome this as a way to deal with it? And does it to free up a little bit of, you know, memory on their hard drive to move forward with some other things? The usual effect of the appointment of a Special Prosecutor is to quiet matters for a period of time, because everybody can now say, look, these matters are under investigation, we've got a new prosecutor leading the case. Let's let him have a chance to do his work. It may even slow down for a time - the Congressional investigations.

So, the White House will get some breathing room here. It would be exceedingly wise, it seems to me, for the White House to embrace this, to speak well of the appointment, and offer full cooperation. Whether the president will be willing to do that, he's been feeling rather put upon in recent days and is saying so, said so again the day at the Coast Guard Academy. It remains to be seen. It would be the wise thing to do under these circumstances.

MACCALLUM: Yes. So far, he has not tweeted about this. And he has sort of gotten burned on that, as you say, over, you know, some of these recent news stories. I mean, they had been hammered, Brit, all week long. And you know, what they once thought - the appointment of a special prosecutor that would have just been, you know, a horrific development, made this thing drag on and on. May now be some form of relief which is, you know, kind of - I guess, you hit your head against the wall long enough, it feels good when you stop, right?

HUME: Well, that's right. But the history of these things is that the relief when you're dealing with a Special Prosecutor may be temporary.

MACCALLUM: Yes, it can go on for years, and years, and years.

HUME: But if you get a straight shooter as a special prosecutor, might help the case. The investigator will say so. I think Mueller is a kind of man who would.

MACCALLUM: Yes. Looking at the Trump presidency, as we have pointed out, you know, it feels like a lifetime already. So, most of us have been covering it, and no doubt, those who've been working in the administration probably feel that way to some extent as well. But you know, less than four months in, a story that he wanted very much to go away early on, he called it a hoax, he said, you know, this is just cooked up by Democrats, who, you know, need a reason for having lost. There's absolutely nothing here, and there is nothing there that we know of yet in terms of evidence. It is striking that it has had the traction to hang on given those realities.

HUME: Well, there are two pieces of this, remember, Martha. There is the major piece of this, which is to determine what influence the Russians had in their attempts to - attempts to have an impact on the presidential campaign, on our political system, that was always job one. A secondary piece of that came into being when there were accusations, accusations - it must be added without any real evidence of collusion between the Russians and the Trump campaign. For the way, everyone acts in Washington these days, the first part of that investigation - the main part of the investigation has been any clips. But that's the main piece of what, of what Director Mueller will be asked to do. Whether he will find the so far unknown evidence of collusion between the Trump campaign and - or Trump himself and the Russians, obviously, remains to be seen. The president seems fairly confident that there is none, so we'll find out.

But I mean, he's going to - in the end, he's going to have to come forward with something. It may be - look, the FBI investigation, as we know, Martha, has been a counterintelligence investigation. That is to say, the FBI acting as an Intelligence Agency to find out what the Russians did and how they did it. Now, those investigations sometimes become criminal investigations if crimes are found. But you're not going to have Russia indicted. And if you do, it would be kind of ridiculous. So, so we'll see what happens. But we got a long way to go here and it will - it's likely to be quiet for a while, and the White House may appreciate that. But that - you know, in the history of these things, it serves as a warning that it'll all may not last forever.

MACCALLUM: No. They may get a chance to inhale and exhale for a few hours, but you know it's worth remembering that the most recent part of the story is the conversation that happened between Donald Trump, the president, and Jim Comey about whether or not he was going to, you know, ask him bump up this investigation and move on. And that part of the story is with us as most of it, as I guess.

HUME: Martha, we'll find out all about that because you just know that at some point Comey will be testifying about it on Capitol Hill.

MACCALLUM: No doubt. He's got plenty of invitations to do just that. Brit, thank you very much.

HUME: Thank you, Martha.

MACCALLUM: So, here now with more: Fox News Judicial Analyst, Judge Andrew Napolitano, joins me here on the set in New York. Judge, what do you make of this tonight?

ANDREW NAPOLITANO, FOX NEWS JUDICIAL ANALYST: Well, I agree with everything that Brit said. And this is really a two-edged sword. It relieves Republicans of the angst - or in Congress, of the angst over what to do about the steady drumbeat of bad information, potentially, volatile of the law coming out about the White House, which has come out now for a couple of days in a row. It gives the White House, as Brit said, a little bit of breathing room. But this is a very, very serious prosecutor and investigator, universally respected, or nearly universally respected. Certainly, both sides of the aisle, who will not stop at anything or anyone.

He will convene a grand jury which will meet in secret. The subpoenas will be served in secret. If the subpoenas are not adequately complied with, they will have a federal judge assigned to them to issue search warrants, which will be served by FBI agents. He has almost an unlimited budget. He has as many resources as he needs from the FBI and he has the total and complete independence of the White House and of the Justice Department itself.

MACCALLUM: I mean, the Justice Department should have had that all along though. I mean, you can - you know, start to ask yourself why would you need that when all the things that you listed, the Justice Department should have had it at the disposal, to begin with.

NAPOLITANO: Well, we don't know the nature and the extent of the investigation that went on under Director Comey and has continued since his departure. Because criminal investigations, as well as intelligence investigations, are supposed to be kept below the radar screen. The only time we got progress reports was the investigation of Hillary Clinton. The progress reports were part of the reason, I think, that Comey is no longer on the job. So, we don't know how far the FBI has gotten. But we do know that everything that accumulated, both intelligence and criminal, is now put in an office with Bob Mueller and his team. And it may be the very same investigators that worked under Andrew McCabe in the past week and a half-

MACCALLUM: But they will never again answer to Andrew McCabe or who ends up running the FBI?


MACCALLUM: They will be directed to Mueller?

NAPOLITANO: Correct, and they won't answer. We know that Jeff Sessions and they won't answer to Rod Rosenstein, and they certainly won't answer to the White House. Now, do you remember the instance in the Bush administration when Jim Comey threatened to quit? He was the number three person in the Justice Department, over an effort to get John Ashcroft who was sedated after a surgery to sign an authorization.


NAPOLITANO: Guess who threatened to quit with him: Bob Mueller. So, you have that type of scrupulous, intellectually honest person, respectful of the constitution, but dedicated to the task at hand.

MACCALLUM: Thank you.

NAPOLITANO: You're welcome.

MACCALLUM: Good to see you, Judge. Let's bring in Catherine Herridge, who has been covering this, of course, throughout. Our Chief Intelligence correspondent live in Washington tonight. Catherine, what's the very latest here?

CATHERINE HERRIDGE, FOX NEWS CHIEF INTELLIGENCE CORRESPONDENT: Well, Martha, I just got off the phone with the former Senior FBI executive and he said to me that Mueller is very independent, he is directed, and he is tough as nails. That's a reference to how he handled this transition with the FBI after 9/11 from sort of a crime-fighting organization, and that traditional the bank robbing since to a counterterrorism, and counterintelligence organization. He said that Mueller is a very different personality from James Comey, the former FBI Director. He said that Mueller is someone who will have total control in this investigation and if he requires additional assets "it will not be the club at the Department of Justice with Bob Mueller." He will get what he ask for and he will not take no.

In addition, this former FBI executive noted that this, in some ways, is a real win for Rod Rosenstein, the Deputy Attorney General. He said that it helps restore some of his credibility because his memo made him, and the words of this official, complicit in the firing of James Comey. And finally, he feels that there's some significance to the semantics, the language that's being used tonight. They believe that the use of Special Counsel versus Special Prosecutor is really kind of a win for the White House because it doesn't have that language that implies that a crime has taken place here, Martha. I can say to you on a personal note, having covered Robert Mueller for the 12 years that he's served as FBI Director that he's, he's someone who has really been through the fire and has been tested, especially in the post-9/11 period and something that is often lost on people.

You know, aside from the fact that he is a career prosecutor, is that he's also a decorated marine, so he has that kind of military toughness as well. Really, a no-nonsense individual. And somebody, who, when we celebrated one of the key anniversaries for the FBI during that 12-year period, we interviewed him at length. He's not a guy who does a lot of interviews and he talked about why the scene of the FBI fidelity, you know, bravery, and integrity, are really mean something to this day. So, he's a guy who likes, feels it in his gut. And this is what we can expect in his role as special counsel.

MACCALLUM: Yes. I remember those interviews that you did with him, and he is very reserved, very serious. And it was a unique opportunity to sort of get inside his brain a little bit, on how he thinks. You touched on something that I brought up with Brit, which was the Rod Rosenstein element to this. You know, it was reported that there were tensions when it was presented as if it was his idea to fire Jim Comey. The initial reporting that he threatened to resign. He rebutted that and said that's not the case and he didn't threaten to resign. However, this sent a very strong signal. And the word we're getting, Catherine, is that the DOJ let the White House know after these orders were signed, and gave them a little bit of a heads up about an hour before this announcement came out. Your thoughts on that?

HERRIDGE: Well, this is a decision, based on our reporting this evening, that the Department of Justice really took ownership of and specifically, the deputy Attorney General, Rod Rosenstein. He disputed that reporting on the record that he had threatened to quit but nonetheless, he was somewhat tarnished by the whole episode with the firing of James Comey. So, this allows him, I think, to turn the page, if you will, in terms of the Russia investigation. I think it may also, in the short term, have the effect of allowing people to kind of exhale a little bit and take a pause because this just been hysteria around this issue. And it looks like we may be on track for the identification of the administration's nominee for FBI director as well.

And if this is a person who both parties can really get behind, that may sort of draw a line temporarily under the episode. But I would say, just if I could, just have one more second here, you know, we're heading into next week, and right before the Memorial Day break, and based on what we've seen in the congressional letters from the Senate and House Committees with oversight. I mean, they're looking to get the former FBI Director James Comey in a public setting testifying about the events leading up to his termination and his conversations with President Trump. And that seems to be on a very accelerated track. So, if we are having a pause right now, it looks like it's only temporary.

MACCALLUM: Catherine, take a very deep breath. Because you may need to use some of that oxygen as we move forward. Before I do let you go, Catherine, I heard you speaking on "Special Report" a little while ago, about the four remaining choices, as you see it, of people who were in the White House, perhaps, when the president got this information about the Special Counsel. Are you picking up any sense of where he might be leaning?

HERRIDGE: I don't - you know, I don't want to get people bad information, you know, on that particular score. What I know for my reporting is that they are very keen to have someone who can hit the ground running, someone who won't have a steep learning curve with the FBI. So, that tells you, based on the experience of some very well-qualified candidates that they want someone who has career FBI service or they want someone with a Justice Department background who has worked extensively with the FBI agents. And the big benefit to tapping Robert Mueller to be the special counsel is this guy drew the map of the FBI, right? He doesn't need a road map to understand how things are going to get done. And Senator Susan Collins said in her statement tonight that she's optimistic that he will be able to move along that investigation very quickly, and there will not be a lot of sort of jamming of the breaks, if you will, with the work they're doing in the Senate.

MACCALLUM: And that's what the White House said they want for this to move along. So, perhaps, they'll get their wish. Catherine, thank you very much.

HERRIDGE: You're welcome.

MACCALLUM: So, joining me now: Congressman Adam Kinzinger, who just this morning made an announcement that he had changed his mind and that he was now in favor of the appointment for a Special Prosecutor. So, I don't know if you knew what was coming, Congressman, or if your timing was fortuitous, but you get what you wanted.

REP. ADAM KINZINGER, R-ILLINOIS: Yes. Look, I think this is the right thing. And I actually changed my mind yesterday. I had been saying, let the housework it's will, and let the structures that exist, exist. Yesterday, with the information that came out, and I saw this partisan hysteria. I mean, frankly, people on the left were yelling "impeachment." Some on the other side, the right, were saying none of this is true, it never happened, and we don't know anything.

And I came to the realization that an independent counsel, a Special Counsel, can take the heat off of this, can detox the partisanship of it, because this isn't just about what it means for 2018, what it means for President Trump, or for what it means for 2020. This is about what this means for the institution of democracy and people's faith in it, which is essential. And I think this can help, hopefully, to restore some of that faith.

MACCALLUM: Yes. You bring up such a great point, because we've talked so much about the undermining of institutions in this country, and how much faith people have lost in them. And you know, over the course of the last eight years, for better or worse, there was a lot of suggestion and reporting that backed it up in cases that there was a too-cozy relationship between the Justice Department and the Obama administration on a number of fronts. You know, perhaps, this is a move that, you know, that the White House might end up welcoming when they see the reaction to it.

KINZINGER: Yes, I hope so.

MACCALLUM: And the American people.

KINZINGER: Yes, absolutely. When this is done, you know, there's going to be an adjudication of all the stuff that is happening. And we're going to get an answer either way. And I think people can then look at it and say, OK, I believe that. Maybe we have disagreements but I believe that; versus anything, I think that now, because of this hyper-partisanship that would come out of the house and the senate, would be looked at through the lens if you are you Democrat or Republican. This is entirely too important for what it means for politics and an election in 2018.

MACCALLUM: I just want to bring in one more question. I understand we do have a statement that has come out from the White House which I want to get to very quickly, but you have a house briefing on Monday. Tell us about that. Who's going to be there?

KINZINGER: Yes. It looks like it's going to be Deputy Attorney General

MACCALLUM: On Friday. Excuse me, Friday morning.

KINZINGER: Yes. And from what I understand, I was just alerted to this too, it's going to be kind of bringing us up-to-date on where this is. The special counsel will probably be discussed.

MACCALLUM: Behind closed doors.

KINZINGER: Yes. And so, we can talk about maybe some classified information if that comes up. You never know what to expect in these things until they've come out, but it's good and it's good to put us all on the same page, and you know, let's take a deep breath and move on with the work of the American people.

MACCALLUM: Well, Rod Rosenstein - Rosenstein, excuse me. I keep saying that incorrectly.

KINZINGER: I do, too.

MACCALLUM: He has established his independence with this move in a pretty strong way tonight. Thank you very much, Adam Kinzinger.


MACCALLUM: Congressman, always good to see you. We want to go back to John Roberts, who's standing by at the White House. We understand that there has been a statement released, John. What can you tell us?

ROBERTS: Good evening to you, Martha. And this is interesting because it's a statement directly from the President, this is not from a Spokesman, this is not from the Press Secretary. And the president would seem, in this statement, to indicate that he is completely comfortable with this, that he shows no worry about the fact that this has gone now into the hands of the Special Prosecutor as opposed to the deputy attorney general at the Department of Justice. The president saying, "As I have stated many times, a thorough investigation will confirm what we already know. There was no collusion between my campaign and any foreign entity. I look forward to this matter concluding quickly. In the meantime, I will never stop fighting for the people and the issues that matter most to the future of our country."

The statement before, at least the sentence before that last sentence, "I look forward to this matter concluding quickly," really kind of fits in with the message that's been coming off of the podium at the White House during Sean Spicer's briefings in recent days. That the president would just like this thing to move forward, that he wants it to be concluded swiftly. He wants a thorough investigation, but that he would prefer that it conclude quickly as opposed to dragging on and on and on. Now, with the appointment of a Special Prosecutor, because these things happen in the past and Brit Hume mention Fitzgerald, I mentioned Ken Starr, but the statute is different now. Sometimes, have a potential to go off in a million different directions. And then, you get somebody like Fitzgerald, who was merely looking for a scalp a lot of people believe, as opposed to getting to the bottom of the investigation. Eventually ended up with scooter Libby on the end of the stick.

So, the President, at the surface, at least, seems to be unconcerned with the fact that this could go on a number of different directions. I think there is great trust among some people here at the White House and at the Department of Justice. That Robert Mueller will conduct a fair and thorough investigation into the heart of the matter. And some other people have been pointing out, you know, in terms of this going down some different roads, but may be one of the roads that this could go down is that Mueller will start to look into these leaks in information, classified information, that have been coming out of the White House and the various agencies. So, I think that is something that people here at the White House, in particular, the President, would like to have looked into. Martha.

MACCALLUM: Yes. He has made that pretty clear, and to the extent that they can. I would imagine that they will push for that, but we'll see how that goes. John, thank you very much with the president's statement for us just out of the White House. Chris Stirewalt joins us now, Fox News politics editor; Mo Eleithee is a Fox News contributor and former DNC spokesman. Gentlemen, welcome to you. So, I guess we start there with this statement.

And Chris, I want to get your thoughts on it because, you know, we have seen the tweet about there being tapes of this Comey conversation, we've seen tweets about the Russia hoax. And now, at least for the moment, the tone of this statement from the president where he says, "as I've stated many times, a thorough investigation will confirm what we already know. There was no collusion between my campaign and any foreign entity. I look forward to this matter concluding quickly. In the meantime, I will never stop fighting for the people and the issues that matter most to the future of our country." From President Donald Trump. Your thoughts, Chris?

CHRIS STIREWALT, FOX NEWS POLITICS EDITOR: Well, isn't that a grown-up thing to say. In fact, the White House should base on the president's prior statements and the statements of his staff, welcome this moment. They could not have a better person in this job than Bob Mueller, who, from his bronze star in Vietnam as a marine, to his years under the Presidents of both parties, as FBI Director demonstrated that he is the man for moments like these, and he's willing to do it and he'll get to the bottom of it. As I told you the other night, there is no one in the United States of America who needs this investigation to come to a clear and conclusive conclusion more than Donald J. Trump.

MACCALLUM: No doubt about that. I mean, I doubted very much that he ever imagine that four months, less than four months into his presidency, he would have a special prosecutor on this Russia case that has snowballed to such a great extent, but that's where we are. Mo, your thoughts, and this appointment tonight?

MO ELEITHEE, FOX NEWS CONTRIBUTOR: Look, I think it's the right thing to do. I think this is going to quiet some of the tension down for about half a minute. I think the President, this is the most measured we've ever heard him. And you know, you got to wonder: one, who wrote the statement; and two, if the tweets that come out in the morning after he watches the next 12 hours of cable coverage are going to back that up, or if he's going to ratchet up the heat again.

You got to wonder if this had been his tone from the beginning, would we be exactly where we are now? But everything from the tweet about the tapes, to the allegations that he tried to nudge Comey or shove Comey in a different direction, and then fire him when he didn't do that, a lot of people can make the argument that Donald Trump's words and actions have led us to this moment. So, you know, this is a good decision, this is a good move, I couldn't agree with Chris more, that there's no one in this country who can do a better job than Bob Mueller at this. And you know, he will take us where the facts lead him and not a step further.

MACCALLUM: Yes. You know, I'm wondering, we just heard about coming testimony, and they want James Comey to testify as well about this and to clarify exactly what was in his nose, which we haven't actually seen the memos and the notes, Chris. I wonder at this point, and you know, once he's questioned in these different environments, could he say, you know what, there is a Special Prosecutor on this now, there will be subpoenas, we will testify, but I can't really address any of that here?

STIREWALT: Nobody is a cage-year survivor and player of the media game than James Comey. He didn't get where he was just because he's tall. And he's very good at doing this stuff. And I suspect very strongly that as he continues to slice away at President Trump, and goes through in these memos come out, and these harmful things come out. And his associates put these things forward, he's going to be a K.G. player when it comes to what kind of testimony he gives because Trump made an enormous mistake in humiliating Comey as he did on the way out the door instead of just letting him leave gracefully. He had to rub his nose in it. Comey is paying him back. But I think to your point, when it comes to what do you do because now there is a special counsel for this matter, Comey is going to be very respectful of his colleague and friend, Bob Mueller. I'm sure about that.

MARTHA MACCALLUM, THE STORY HOST: Yeah. I mean, I was saying he poked the bear. I mean, President Trump kept poking the bear over and over. As you pointed out, the bear is extremely tall.


MACCALLUM: I don't know, 6'6", 6'7"? Something like that. He's like a standing on his hind legs grizzly bear that he was poking him over and over with all of these tweets. And he -- you know, people are human, so if you do that and you're going to get some backlash for it. And, you know, there was not a, sort of, presidential -- let's just deal with this and I decided that I would like to move you out of your spot, and thank you so much for your services as we've discussed. Mo, I want to put on the screen, actually, the length of prior independent counsel investigations because we've talked about this. I mean, Iran contra, seven years, Whitewater, four years. The Valerie Plame investigations went on for two years, which is a lot longer than most people thought it needed to go. Where do you think -- how long do you think this one will go, Mo? Look into the crystal ball for us.

MO ELLEITHEE, GEORGETOWN UNIVERSITY INSTITUTE OF POLITICS: Who knows, and that's the thing. There have been so many layers to this rancid onion that keep coming off that, you know, we don't know where this is going to go. And that's why I think Mueller is the right choice because he'll take it where it leads him. He's not going to go down -- he's not going to start chasing shiny new objects. He'll stay focused. But the mandate is wide enough that as more layers come off of this onion, he's got the mandate to see where it takes them. So, you know, this could go on for a while. This could be wrapped up very quickly. We just don't know if there's a lot of smoke out there around a lot of people and Mueller is going to have to check it all out.

MACCALLUM: Yeah. And we haven't seen fire yet. But that's Mueller's job to do just that. Before I let you guys go, the politics of this moment. So if you're working in the White House, and we know that's been a tricky place to be over the last couple of weeks, what do you propose, Chris? Do you say, look, here's what we've got, we've got the special prosecutor tonight. We've got a couple days between here and the foreign trip, how do you try to reset?

STIREWALT: If you look at the way that Donald Trump acted during the campaign, which would be, things would have to be pretty bad before he would listen to the staffers who said, get it together, tighten up, quiet down, stop with the tweets, behave, and he did it after the Khan family incident, he did it after the Access Hollywood incident, as these things would happen, he would become ready to listen. And with the staff in the White House has to hope is that the president chase him after a very -- the worst two week span of his public life so far, that he basically is willing to listen, willing to be discipline. They've got to have a good message not for the public. They've got to have a good message for the boss about how to dial it in, dial it down, and control his way through this next difficult patch.

MACCALLUM: he spoke at the (INAUDIBLE) graduation, Mo. And he talked about fighting and never giving up. He talked about himself quite a bit in the course of that speech, which maybe wasn't the best way to go, but when he talked about getting back to the business of the forgotten men and women in this country that may be a good place to start.

ELLEINTHEE: The problem with what Chris said, and I totally agree with what he said, was that every time that happened to Donald Trump, he wasn't able to stay there. He would get disciplined and behave like a good boy for a couple of minutes and then within 24-48 -- 3 days, doing the same thing.


ELLEINTHEE: They could basically repeat this statement over and over for the next few days maybe that gets him back into a group of some sorts. But again, the slightest provocation sets him off on twitter, or in a news interview, when he goes out on those foreign trips who knows what happens. That could send us into an even worse spiral.

MACCALLUM: One last question for you, Chris. In terms of the GOP, what's their response because there has been a lot of fissures in the glue that holds that group together over all this.

STIREWALT: I think the consensus statement would be, thank God almighty that this has happened because these guys -- they've spent so much time hiding under their desks, you think that there was a nuclear fallout raid.


MACCALLUM: That may be. Thank you, guys. Thank you very much.

STIREWALT: Thank you.

MACCALLUM: Good to see both of you. So shock waves throughout Washington tonight, as the DOJ just announced the appointment of a special counsel to oversee the investigation into Russian meddling into the presidential election. So what exactly does that mean? Trace Gallagher has the details from our west coast newsroom tonight. Hey, Trace.

TRACE GALLAGHER, FOX NEWS: Hey, Martha. You know some of this has been touched on before but it's very important to give a step-by-step. After President Nixon fired Watergate special prosecutor Archibald Cox in the so-called Saturday Night Massacre, the appointing of a special counsel went through some changing. And in 1978, came the ethics in government act which led to special counsel being appointed by a three-judge panel. That resulted an appointment like Lawrence Walsh for the Iran-Contra affair, and Ken Starr for the Bill Clinton-Monica Lewinsky case. In 1999, the ethics in government act lapsed, and the power to appoint a special prosecutor mostly fell back to the department of justice. The first time that regulation was used was a 1999 by then attorney general Janet Reno, who appointed former Missouri Senator Jack Danforth to investigate the botched federal rate on the branch (INAUDIBLE) compound in Waco, Texas.

In this case, attorney general Jeff Sessions has recused himself from the Russian investigation, so the power to appoint falls to acting attorney general Rod Rosenstein. It is also Rosenstein who decides the initial scope of the special prosecutor, meaning whether or not former FBI director Robert Mueller's investigation would focus solely on Russian meddling in the election or if it would also include the firing of James Comey or the accusation that President Trump asked then Director Comey to back off the investigation of former national security advisor Michael Flynn.

But experts point out that once Robert Mueller began his investigation, he can pretty much take it wherever it leads. Mueller has the power to impanel a grand jury and the power to subpoena witnesses, including interviewing the president. In other words, he becomes the great decider. And while he's not subject to the, quote, day-to-day supervision of the Department of Justice, the regulations say the attorney general does have authority to overrule the decisions of a special prosecutor. Not only if special counsel given wide latitude over how the investigation proceed, the timeline for the probe is also fairly open-ended, and as you noted, open funded. Lawrence Walsh's investigation lasted almost eight years, cost $47 million. Ken Starr's investigation, four years, cost about $39 million.

MACCALLUM: Would you love to see that itemized bill for that. How that money got spent. Trace, thank you very much. So here now with more, Professor Jonathan Turley, who is a George Washington University law professor. Good to see you this evening, Professor Turley. What do you think about this news tonight?

JONATHAN TURLEY, GEORGE WASHINTON UNIVERSITY PROFESSOR: Well, there is a curiosity here that this actually could be good news for the Trump administration. I said a week ago, that they should be asking for a special counsel. The only way that President Trump could possibly clear his name, after his own comments and this controversy, would be for someone who was beyond reproach, beyond question to render the decision. Had the justice department resolve this question, many on the hill would not be satisfied because of everything that has happened. So this may be the price of Hubris. You know this was almost inevitable when the Comey memo hit. But effectively, what happened is the deputy attorney general gave the country a healthy dose of Tylenol to bring this fever down. But that also tends to prolong the sickness. As you note, these investigations are measured not in weeks or months but years. They tend not to be the most efficient way to go about something. But they are the way to do it if you want to make sure that the results are accepted.

MACCALLUM: But you know this has been called a hybrid sort of appointment. Because he is the former FBI director, he is outside but not that far outside. He understands the scope -- the approach to these kinds of investigations. So it's not like you're bringing in Ken Starr from the outside of the process, the people who've been working at the FBI on this will now report to Mueller, and he will have the independence that he requires and that everyone seems to believe is the only way he would operate or take this on in the first place. But you, interestingly, professor, have been sort of shouting into the wind that there is no they're there so far. So now you've got a special prosecutor looking into something where we're not even sure if there is any evidence that points toward any crime at all. So where would you tell him to start?

TURLEY: Well, that's right. And actually, for many weeks, I questioned the need to have a special counsel because I didn't see the crime. I changed my mind when Comey was fired. Once the president did that, I believe that regardless of the evidence of the crime, we needed something like an independent counsel or special counsel to render this decision, to take over this investigation. That's why I think this is the correct way to go, not just for the justice department but for the White House. They did pick someone unique. He's a company man. FBI agent and justice officials feel very comfortable with him. He has history with Comey. You know, they're obviously friends. They had a historic moment together at the bedside of attorney general Ashcroft, and that was a defining moment for both of them, when they basically stood in contradiction to the White House. So, I think what you're going to find is that he's not someone who is going to take lightly the damage that has been done to the image of the FBI or the justice department. That's the coin of the realm for the justice department is its integrity. And I think he'll be really working very hard to restore it.

MACCALLUM: You know, I think that in end of itself is very welcome and probably will be to most Americans because people have lost so much faith in institutions. They've seen so many aspects of all of this so politicized that they don't really have much trust in anything anymore. They think of it as a Republican administration, then, they're going to influence this sort of things. If it's a Democrat who is in charge, then, they will also be able to curry favor with whoever happens to be under them at the justice department, which is a very sad situation.

One of the things that are Rod Rosenstein will determine if the scope of this. What is in, what's out, right, in this investigation. Does it include the conversation between Donald Trump and Jim Comey about maybe being nudged to sort of -- you know take a pass on this thing that involves Mike Flynn. What do you think should be in the scope of it? Because originally, this was about are the Russians meddling in our election, and then it became something very different.

TURLEY: You know, once again, I think that the White House should invite the broader scope. I don't see the basis for suggesting that what allegedly happened between Comey and Trump was an act of criminal obstruction. I think if that were investigated, it would likely favor of the White House in terms of the outcome, unless some other evidence comes forward, which it might. As to the scope, that's in the hands now of the special counsel, given the mandate, the language of his appointment. He can easily include that and many other things. The other thing I would notice, when you're investigating the Russians, people ought to be a little cautious. You know, a special counsel is like a live torpedo on the water. It can hit everything. And this city is awash with Russian money. There's a lot of Democrats as well as Republicans that have been hired by Russian outfits and extensions of Moscow. This is sort of a cottage industry in this town. People should be very careful when they asked for a broad scope because you wouldn't be able to say for certain who would fall under it.

MACCALLUM: I think that would be an aspect of that investigation that the president and the White House would probably welcome, based on some of the things that they brought up about John Podesta and the rest of it. So we will see. Thank you very much, always good to have you with us, Professor Turley, Jonathan Turley. All right, so here now is representative Ron DeSantis, member of the House oversight committee, the chairman of that committee has demanded that the FBI turn over all the documents it has about communications between President Trump and the former FBI director. Congressman DeSantis, welcome, good to have you with us tonight.


MACCALLUM: What do you think about the news?

DESANTIS: Well, you know, Martha, I was thinking about how the Hillary Clinton email investigation happened. You have the president Obama saying nothing to see, move along publicly. You have Bill Clinton meeting with the attorney general Loretta Lynch. We know that it was a slip-shot investigation, no grand jury even used to get documents. And yet, there is no special counsel appointed there, even though I thought there should have been. And so, it's my judgment that if you read the actual regulation, it requires a criminal investigation. And this had been basically a counterintelligence investigation according to former Director Comey. So I didn't think the regulation had necessarily been triggered. However, I agree with Professor Turley. I think that from the Trump administration's perspective, having this done, and whatever time it takes, and be done with, it will probably be better than continuing to do this through the media, and with the Democrats always engaging in hysteria. So even though I don't think the regulation was necessarily triggered, I think it's probably going to end up working out better for the president this way.

MACCALLUM: Doesn't disband or end the investigation that are going on in the hill? I mean, those are still going to go on. So you still have the potential for the politics and the day-in and day-out observation of all of this to keep very much in the bloodstream, don't you?

DESANTIS: You do, but I think what happened up until this point, that there has been nonstop innuendo. There's been all these smoke but really no evidence of any fire. When you talk about collusion with Russia, first of all, collusion is not a crime. What they're basically alleging is a criminal conspiracy between Trump's campaign and the Russian government. In my view, why would you do that, to hack John Podesta's emails? So I don't think that we've seen any evidence of that. But it just strikes me as being something unlikely to actually have occurred. But we're going to end up seeing that now. So I think you're going to see less leaking. And I think people -- the average American will probably care more what Robert Mueller says then what was some Democratic congressman says.

MACCALLUM: And I would venture to guess that the average American cares a lot more about tax reform, a lot more about health care. They're looking at people in your position and saying, you know, the GOP has control of the house, the senate, and the White House, this is not what we expected. We didn't expect month of, you know, sort of spending over this Russia situation. Why don't you all just get back to work and let this sort of take its own, now that the special prosecutor has been put in place, can they expect that would happen?

DESANTIS: I hope so. You're exactly right. We have the senate needs to produce a health care bill. I think they can do it. And then, we move onto tax reform. Then we do ethics reform to drain the swamp, we do things to build the wall. If you do that, that's what the average American cares about.

MACCALLUM: You have a lot of Republicans who have sort of been voicing some pretty serious concerns about President Trump and about how much security he has right now in his position. What do you think about that? Is this a moment for that? Or do you want them to sort of get on the same page and focus on the work?

DESANTIS: Yeah. Look, I think that that's totally not even in the cards at this point. And I think that people that are saying that are not doing a service. I think we got to focus on our work. We do have the ability to do oversight. We will get Comey's memos. And by the way, I want all of Comey's memos. I want his memos about Loretta Lynch and Hillary Clinton and all of that so that we can get true oversight over that whole ordeal. And so, we have a role there. You now have Bob Mueller in place. And then, we have an agenda that we have to do. So I think, you know, engaging in some of these kind of visions to me is not productive for Republicans to be doing right now.

MACCALLUM: Are you going to subpoena documents with regards to the Hillary Clinton situation?

DESANTIS: So senate judiciary committee has done that. We've not yet in the house, I would like to do that and make sure we get all of the memos. Because I think they're very relevant to how that investigation was conducted. And don't forget, there is an active I.G. investigation into not only Director Comey's conduct, but also former attorney general Loretta Lynch's conduct vis-a-vis the Hillary Clinton case.

MACCALLUM: Yeah. That question was raised last night with Congressman Trey Gowdy when he was here. He suggested to us that there was quite a bit more to the decision by Director Comey to have to take ownership of that situation, that he was very much aware of more entanglement, perhaps, between the Clintons and the department of justice, than anybody really knows about. Can you add anything to that?

DESANTIS: I can tell you that I agree with Trey. We've always suspected that. Getting Comey's memo may be able to flush some of that out, which I think would be very productive. So I do want to do it. I mean, the bottom line is, you can't explain how that case was handled as being just a normal course of business. It was a radical departure for how these cases are handled. And really the American people still not been given a proper accounting of why it was handled that way.

MACCALLUM: Well, Trey Gowdy claims that if everybody knew the whole story there, and he says he does, that they would cut James Comey quite a bit more latitude in terms of the way he took over that investigation. So we stand by for more information on that as it comes out. Thank you very much, Congressman DeSantis. Good to have you with us today.

DESANTIS: Thank you.

MACCALLUM: So here now with more, Marc Thiessen, former chief speechwriter for President George W. Bush. He's also a Fox News contributor. Zac Petkanas is former senior DNC advisor. And Charlie Hurt, Washington Times political columnist and a Fox News contributor. Gentlemen, welcome to all of you. Good to have you here. We just heard from Congressman DeSantis. And I want to start with Zac Petkanas on this. Your thoughts about this appointment of the special prosecutor, do you think this was a wise move, and do you feel like it's going to get some resolutions?

ZAC PETKANAS, FORMER SENIOR DNC ADVISOR: Look, I think it was a very wise move. I think it was a long overdue move. I think it was a move that took basic evidence of interference by this White House into the investigation, to light a fire under this department of justice, to have a special prosecutor -- sorry, special counsel, something we've been calling for, for a very long time. I do think it's only a first step, though. We have to really remain vigilant. A special counsel is different than a special prosecutor. It is still within the chain of command of the Trump department of justice. We have to make sure that there is not any further interference. We've got to make sure they don't choke off resources to it. And I think we have to continue pushing for an independent commission, which looks at different things in this investigation, which is looking for criminality.

MACCALLUM: Do you agree with Congressman DeSantis that they should open this up to Russian entanglements wherever they may lie in Washington? On the Democrat side, on the Republicans side, you're supportive of that?

PETKANAS: Absolutely.

MACCALLUM: The Clinton campaign, John Podesta's brother, all of that. You want that to be.

PETKANAS: They should definitely look into that because it has been debunked about a thousand times.

MACCALLUM: Well, Donald Trump would say the same thing, the president about the one.

PETKANAS: Yeah, but he would be wrong and we have.

MACCALLUM: And you would be right, of course. OK. Marc, weigh in.

MARC THIESSEN, FOX NEWS CONTRIBUTOR: Yeah. So Zac's answer there, which was very good, is exactly the reason why Rosenstein's move is so good for Donald Trump. Because, basically, Democrats have nothing left to say now. Because now there is a -- he basically.

MACCALLUM: Yes, they do. He wants an independent, outside person.


THIESSEN: I mean, look, the reality is the Trump administration set a dumpster fire here and Rosenstein just put it out, which is great news for the Trump administration. The fact is, Bob Mueller is a completely professional guy, character and integrity, nobody is going to question how he's doing this job. He's going to go about the job quietly and professionally, which means he's not going to be having press conferences, which means that there's no room in the news environment for questioning it or raising issues about this. He's just going to do his job. And if Trump is right that there is nothing there, he's got nothing to worry about. He can go back to his day job which is president. And do that job instead of spending every day talking about Mueller and Comey and what's happening with the FBI and Russia. Go back to do your job, go on your foreign trip, and let Bob Mueller take care of this. And will do with integrity and there's no more -- the politics can be sucked out of this.


CHARLIE HURT, FOX NEWS CONTRIBUTOR: The fact, Martha, that so many people on both sides of the aisle think this is such good idea, and I'm one of them, to the point that Donald Trump thinks this is a good idea, to appoint a special counsel to this, I think reveals just how rain and treacherous this whole thing has become here in Washington. The whole thing has become so politicized. Nobody has any -- none of the politicians have any credibility here on this. It has just become a partisan witch hunt. And I think the whole Russia thing, from the beginning, is a political canard without any foundation whatsoever.

But you know, Fine. Let's do this. Let's get to the bottom of this. I don't think it will shut people off, but I do think that we can have a couple of good things that come of it. It could slow down at least some of the leaks, which have been so incredibly damaging. In my mind, just prove that the president has no real ability to control the leviathan on what has become our federal government. I think that it also -- you know, the most important point is, the fact that it -- if it were to happen, Donald Trump could not have drawn a better card than to get somebody like Bob Mueller, who I think is very much above partisanship. It's a serious guy, and certainly at the end of the day, has infinitely more credibility than Maxine Waters, Nancy Pelosi, or Chuck Schumer, or any of these people who have been politicizing every step of all of this.

MACCALLUM: Yeah. So, Zac, we don't know exactly what the scope of the investigation is going to be, but we would assume that it will look into the Michael Flynn matter. We would assume that it will look at both sides of the Michael Flynn matter, whether or not there was any collusion on his part, whether or not he was involved in anything nefarious. Also, the unmasking of Michael Flynn's name, which is one of the few actual crimes that we know exists so far in this story.

PETKANAS: Well, I mean, one, I'm hopeful that the scope of this includes the possible obstruction of justice in terms of trying to shut down on the investigation by talking to Comey. I hope that is true. That has not been specifically specified yet. But I do hope that that is true. But I do also want to go back to something that was just said. I think it is pretty ridiculous to say that there is no indication that there is any collusion, or that this investigation hasn't showed bleeding anywhere. We know now, the grand jury has been in panels in Virginia, a grand jury has been in paneled and has issued subpoenas.

MACCALLUM: But that doesn't mean there is an underlying crime. That means that they're committed in finding out if there is one.

PETKANAS: A hundred percent it doesn't say that there is absolutely a crime. But it also suggest.

MACCALLUM: It means there's a ham sandwich so far.

PETKANAS: They thought there was enough in order to issue subpoenas, not once but twice, that we know about. We also know about -- I know I shared the desire for all of the Comey memos to come forward because it's been reported that it's not just that conversation that was concerning to Comey about that. That he documented several other conversations that were concerning between him and Donald Trump. So I sincerely hope that those come out.

MACCALLUM: I would imagine they would want to see all of that. As you rightly point out, the word that we are getting is that there were many memos and that there was a period of time, or they were different instances where James Comey felt like he was having an uncomfortable conversation, something along those lines, that we imagine we're going to see in these documents. Thank you very much, gentlemen. Good to see all of you tonight. Thank you for being here. So we want to go back and circle up with Fox News senior judicial analyst Judge Andrew Napolitano, who was shaking his head at various times in recent conversations that we're having. So what's on your mind on all of this.

ANDREW NAPOLITANO, FOX NEWS SENIOR JUDICIAL ANALYST: Here's what's on my mind, everybody who wants to see those Comey memos, you're not going to see them because they are now going to be subject to the special counsel, and he operates under the federal rules of criminal procedure, which prohibit them from being displayed to the public. The first thing he's going to do is un-panel that grand jury. Everybody gets a letter to preserve everything, written and digital. You don't surrender anything to everybody because I get to look at it first. That includes the material that have been subpoenaed by the senate and the materials that have been subpoenaed by the house. So this will really ratchet down things waiting for an end result. The Republicans want the end results soon. The Democrats want the end result closer to the 2018 election. That's going to be determined by Bob Mueller and the facts as he sees them. But this is going to be a below the radar screen, Bob Mueller in charge investigation.

MACCALLUM: So if James Comey had a desire to sort of tell his side of the story, and his name was really trashed in many ways by the president after his firing, which I know you took some issue with, he will not get that opportunity now.


MACCALLUM: He's going to have to wait for that.

NAPOLITANO: He now knows that he will be a witness in a criminal investigation, and he knows that he should not say anything until he testifies before a grand jury or he testifies -- not testifies, but gives evidence to Bob Mueller's investigators, who used to work for him.

MACCALLUM: So after they compile all of this, is they're going to have to sort of take these things in pieces, right? Did the Russians impact the 2016 election? You know, were they hacking -- did Michael Flynn have a role on that, was there collusion in that? Paul Manafort is going to get brought into this as well. I mean they're going to have -- they have to deal with.

NAPOLITANO: Remember the order that deputy attorney general Rosenstein sign and all related matters.

MACCALLUM: John Roberts is standing by with some brand new information.
Hey, John.

JOHN ROBERTS, FOX NEWS: Hey, Martha. I was just talking to some senior administration officials about how this all went down. Apparently, when they got word that this was coming out from the DOJ, his entire senior staff team went into the oval office with the president, that included the vice president, the chief of staff, of course, Kellyanne Conway, all of the senior staff, Donald McGahn, who's the White House counsel, and presented to him saying the decision has been made that Rosenstein is going to appoint a special prosecutor. The president I'm told was very measured in his reaction to it. He said, OK, that's the card that we've been dealt. Let's move on. Now, in terms of analysis on all of this, the White House staff is looking at this as an opportunity to kind of clear the decks of a lot of the criticism that has been coming down from Capitol Hill in recent days, weeks, in fact, to able to kind of pull the team back together again instead of being splintered in so many different directions and really focus on the president's agenda. So while there is the danger always when you appoint a special prosecutor, this could go down a lot of different roads, the team here at the White House at the moment, including the president, feels this is giving them an opportunity to focus on the future as opposed to trying to re-litigate everything that has happened over the last few months, Martha.

MACCALLUM: All right. John, thank you very much. John Roberts reporting tonight from the White House, as all of this has transpired. Once again, three nights in a row, a lot of breaking news for that White House to deal with, and if indeed it becomes a moment, as we talked about here tonight, for them to exhale a little bit, try to get focused on their agenda, knowing that Robert Mueller, who at this moment, has a lot of wide bipartisan support to take this under his wing, is now going to do just that. He said that he will take this -- accept this responsibility in his statement, and that's exactly what he will have to do. So thank you very much for being with us tonight, as we have covered all of this breaking news. It has been a busy evening and there is a lot more to come tonight because Tucker Carlson is going to speak with Jason Chaffetz of the oversight committee, and Kellyanne Conway who will have the first live statement from the White House as Tucker get started moments away. Have a good night.


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