The politics of President Trump's border security agenda

This is a rush transcript from "Special Report," February 14, 2019. This copy may not be in its final form and may be updated.

BRET BAIER, HOST: I've got an update, Dana, from the guy doing doughnuts in Tennessee. Thank you.

This is a Fox News alert. I don't, really.

Good evening. I'm Bret Baier.

As Congress votes on a budget bill that would avoid another partial government shutdown, President Trump's press secretary says he will sign that bill and then President Trump will declare a national emergency in order to build a border wall. It's a move that will almost certainly set up a huge legal and legislative uproar.

Chief White House correspondent John Roberts is live tonight on the north lawn with we know at this hour. It's been changing throughout the day. Good evening -- John.

JOHN ROBERTS, CHIEF WHITE HOUSE CORRESPONDENT: As it always seems to in these parts. Bret -- good evening to you.

It has long been expected that President Trump could declare a national emergency in order to build his border wall, but when the news finally dropped this afternoon, it shook the halls of Congress.


ROBERTS: As the White House was taking a microscope to the spending bill, this afternoon a stunning announcement from Senate Majority Leader Mitch McConnell.

SENATOR MITCH MCCONNELL, R-KY., SENATE MAJORITY LEADER: I've just had an opportunity to speak with President Trump. And he -- I would say to all my colleagues -- has indicated he is prepared to sign the bill. He will also be issuing a national emergency declaration at the same time.

ROBERTS: The announcement made good on a threat the President had said he would prefer not to use but was left with little choice after receiving the text of a bill that fell well short of what he wanted.

In a statement, the press secretary saying he was taking the emergency action "to ensure we stop the national security and humanitarian crisis at the border. The President is once again delivering on his promise to build a wall, protect the border, and secure our great country".

In a joint statement, the Speaker of the House and Senator Chuck Schumer said, "Declaring a national emergency would be a lawless act, a gross abuse of the power of the presidency.

REP. NANCY PELOSI, D-CALIF., SPEAKER OF THE HOUSE: The precedent that the President is setting here is something that should met with great unease and dismay by the Republicans. And of course, we will respond accordingly when we review our options. First we have to see what the President actually says.

ROBERTS: The way it all played out was exactly South Carolina Senator Lindsey Graham suggested more than a month ago.

SENATOR LINDSEY GRAHAM, R-S.C.: There are some things in there that are good for border security and let him march towards filling in the gaps by executive action.

ROBERTS: The spending bill gives the President $1.37 billion for pedestrian fencing in the Rio Grande Valley sector. But there are also restrictions that the President is bristling at. The bill stipulates that border wall cannot be built in several areas, including the National Butterfly Center west of McAllen (ph). It also gives local authorities in five Texas border towns veto power over the wall.

And it puts significant handcuffs on the President's discretion to make changes in spending. There are 354 instances in the bill where the phrases, "none of the funds", "none of these funds", and "none of the amounts" are used to place restrictions on how the money can be used or moved around.

Declaring an emergency may allow President Trump to move some money around from other departments to add to wall construction. It will almost certainly land him in the courts, but he will be able to tell his base he did all he could to make good on his central campaign promise.

The House Speaker said it also sends a message to the Democratic base.

PELOSI: -- that the President can declare an emergency on something that he has created as an emergency -- an illusion that he wants to convey. Just think of what a president with much different values can present to the American people.


ROBERTS: White House officials say that their attorneys have been looking at the ins and outs of an emergency declaration for months. And while they do expect that this will end up in the courts and most likely in the jurisdiction of the Ninth Circuit Court of Appeals, the Press Secretary Sarah Sanders said today that the White House is very prepared to meet a legal challenge -- Bret.

BAIER: John Roberts, live on the north lawn. John -- thanks.

Let's bring in our panel a little early tonight with the breaking news. Byron York, chief political correspondent of the "Washington Examiner"; Susan Page, Washington bureau chief at "USA Today"; and Tom Bevan, Real Clear Politics co-founder and president.

Byron -- your thoughts.

BYRON YORK, "WASHINGTON EXAMINER": Well, on the bill itself, the President really has to sign it. He gave in during the last government shutdown because of political pressure, the pain got too great. Now in this case he would have a bill on his desk. The only thing between keeping the government open and shutting it down would be his signature. There is no way he wasn't going to do it.

Now, on the issue of a national emergency, I think what we are going to see here is the Democrats are, of course, going to claim that there is simply no emergency, it just doesn't exit. The court challenges will be filed within seconds after the President does this.

The President's case is going to be, look, there are about 30 current national emergencies declared by presidents. Most of them have to do with sanctioning individuals in countries that are very troubled -- Nicaragua, Venezuela, Burundi, Yemen. But the President will say, look, last year about 400,000 people were apprehended trying to cross illegally into the United States between ports of entry. And who is to say that's not a national emergency? And that's what he'll argue.

BAIER: There actually have been 58 since 1976, if you look at this graphic. There are 30 that are still active. These are all the national emergencies that have been declared. President Obama had 12 of them, including the bird flu emergency and others.

Take a listen to law makers on national emergencies.


REP. STENY HOYER, D-MD., HOUSE MAJORITY LEADER: I think declaring a national emergency when there is no national emergency is not good for the President to do.

SEN. JOHN KENNEDY, R-LA: It's not my preferred choice, but I don't think the world's going to spin off its axis.

SEN. CHUCK SCHUMER, D-N.Y., SENATE MINORITY LEADER: Declaring a national emergency would be a lawless act.

GRAHAM: I think he has all the legal authority in the world to do this.

SENATOR CHRIS COONS, D-DEL.: I think all of us will come to regret this. It is not the right way for the President to try and end-run Congress.


BAIER: Lindsey Graham, the most vocal, Susan saying I stand firmly behind President Trump's decision. He obviously hasn't done it yet. Word is that Senator McConnell is trying to still -- trying to prevent him from doing it.

SUSAN PAGE, "USA TODAY": Although Senator McConnell said on the floor of the Senate he would support the President if he declared a national emergency. You know, it's true that there are other national emergencies, that's not so rare.

This is a somewhat different utilization of that presidential power than most of the others in history. And you know, interestingly, President George W. Bush once threatened to declare a national emergency and it was blocked in effect when George Miller from California used kind of an obscure parliamentary provision that meant that you could oppose it if you got a majority of the Congress to oppose to vote against the declaration of national emergency. It was repealed. It was pushed back.

And that is another course that Democrats could pursue -- certainly that would pass in the house. It is possible a proposal like that might pass in the Senate because there are several Republicans who've expressed concerns.

BAIER: Tom -- our latest possible we asked the question about bypassing Congress, declaring an emergency to build the wall. It is upside down -- this 56-38. But if you look at others, like number two -- I'm sorry number one, the budget deal that includes money for barrier, security and humanitarian aid, there is support for that. It's how you asked the question, obviously, where the support comes down.

TOM BEVAN, "REAL CLEAR POLITICS": Yes. I mean this is a risky move on Trump's part in the sense that it does certainly shore up his base and it keeps the issue top of the mind.

And I think the contrast that Trump likes is the idea that it's a matter of opinion. He says this is a national emergency and Democrats are rushing to barricade to say this is a complete fiction, it's an invention. That's a contrast that he wants.

The downside is it does. It puts the focus back on a split in the Republican caucus. And the media will certainly cover all the Republicans that are going to come out and say, this isn't the proper way to go.

So, you know, after Trump got a pretty significant bump in his job approval rating after the State of the Union speech in part because of the bipartisan message, I think, he's back to brawling. And so we'll see how this works out for him. But it's definitely a risky move on his part.

BAIER: You know, I talked to a couple of people who said that part of it was the way the bill is written -- that it had all these handcuffs and that the funds cannot be used for x, y, and z and that they were trying to move different pots of money around to make at least some part of the wall work through moving this money. And he was pretty handcuffed by 354 phrases.

YORK: Well John mentioned that and there are several geographical restrictions. There are parts that you can't put up any barrier parts right on the border.

But you know, from a policy standpoint, this may not be a popular view, Trump actually did make some progress here. The administration has already been replacing about 125 miles of dilapidated, inadequate fence with new, strong barrier. This bill allows him to do 55 miles of currently unfenced area with a new, strong barrier.

And that really arguably is an improvement in border security. Now, it's not nearly what the President wants. It's more like the glass quarter full. But on the other hand he actually made some progress from a time not too long ago where the Speaker of the House was declaring any such barrier immoral.

BAIER: And not too long ago, Mr. Trump tweeted about President Obama. "Republicans must not allow President Obama to subvert the constitution of the U.S. for his own benefit and because he is unable to negotiate with Congress.

As you can imagine, Democrats are pouring out in their response. Tulsi Gabbard, running for president, "Every time a president declares a national emergency in order to get his way on a particular issue, the closer we are to a dictatorship. Who needs Congress or the people if the President can make the decision on issues by himself? Very dangerous precedent."

That's a little overheated, don't you think -- Susan?

PAGE: That may be a little hot, but here's what Nancy Pelosi said this afternoon. She said, you know what, Republicans are opening a door that a Democratic president will be able to walk through in the future. So when a Democratic president looks at the state of the nation, they might say a climate change is a national emergency. Congress won't act? I will. Or gun violence in schools -- that's a national emergency, Congress won't act, I will.

Now that is the -- President Trump may not care about that, he won't be President anymore. But that is a long term risk for the Republican Party.

BAIER: Do you agree with that?

BEVAN: Well sure, it's going to set a precedent, but a Democratic President has already walked through it. Obama used his pen and his phone for an executive order that he himself said was not constitutional and did it anyway. And so this is sort of a logical progression.

I do think it will set a precedent and certainly Democrats will exploit it when they can. But we are already down that road.

BAIER: And does the base say a hat tip to national emergency solves the pushback on the bill?

YORK: Well, Trump's base has thought this was a national emergency for quite a while, before the 2016 election. So they're not going to take any convincing. But I think the President has to make the case to the larger public that with all of these crossings and with U.S. law basically preventing the United States from immediately returning border crossers to Mexico, it creates a national security issue plus a humanitarian crisis on the border where there are a lot of people, growing by 30,000 a month, that the United States either has to take care of or release into the United States.

BAIER: We'll have a House vote tonight and then we assume the President will make his decision and announcement sometime before opening of business Tuesday morning, 9:00 a.m.

Panel -- thank you. We'll see you later in the show.



ANDREW MCCABE, FORMER DEPUTY FBI DIRECTOR: I was very concerned that I was able to put their Russia based on absolutely solid ground in an indelible fashion that were I removed quickly or reassigned or fired, that the case could not be closed or vanish in the night without a trace. I wanted to make sure that our case was on solid ground, and if somebody came behind me and closed it and tried to walk away from it, they would not be able to do that without creating a record of why they made that decision.


BAIER: Well, the former deputy FBI director, who was fired, and who is facing actually a possible criminal prosecution, talking to CBS. Lindsey Graham up on Capitol Hill wants him to have him talk to senators about what he's saying.

The DOJ issuing a statement, "The Deputy Attorney General," Rosenstein, "again rejects Mr. McCabe's recitation of events as inaccurate and factually incorrect. The deputy attorney general never authorized any recording that Mr. McCabe references. As the deputy attorney general previously has stated based on his personal dealings with the president, there is no basis to invoke the 25th Amendment nor was the DAG in a position to consider invoking the 25th Amendment." Obviously, this is about wearing a wire possibly against President Trump.

Quickly about this and what the fallout is.

BEVAN: That's clearly the shocking revelation here is you've got members of the FBI and the Department of Justice sitting around counting cabinet heads, talking about plotting to invoke the 25th Amendment here against the president of the United States, the newly elected president of the United States. There's a word for that. It's called a coup.

BAIER: So Susan, DOJ is essentially saying that he was out of the loop once Mueller goes in. He's no longer in the Russian investigation. And this is about may be retribution about Rosenstein.

PAGE: It could be. Remember when we had to wait years and years to find out what was happening in secret meetings in the White House and the Justice Department, historians would go through archives, discover them. Look at the wealth of information we get from people who are foes of the president, like Mr. McCabe, but from friends and allies and members of the administration. We had this incredible store of information that provides -- their details are different, but a reasonably consistent picture of chaos and conflict and deep concern on the part of career people at the FBI about this new president.

BAIER: The question is what happened? He didn't wear wire. They didn't go forward with the 25th Amendment. And now we are waiting for the Mueller investigation to complete?

YORK: There were several things that they actually did do. We knew the FBI began immediately authorized a counterintelligence investigation targeting the president specifically as well as, of course, the Mueller investigation came a few days later than that.

This is really quite stunning and maybe one of the last things you have to think about. As when we speak now, we've had a new Senate confirmed attorney general for a few hours, and the question is why does Rod Rosenstein still have a job? A lot of Republicans on Capitol Hill have wondered that. And now that Bill Barr is in office, they are going to wonder that even more loudly.

BAIER: We will see. Quickly, down the row here, thoughts about the Pompeo interview. What struck you?

BEVAN: What struck me is I think the administration has done a pretty good job reorienting our policy toward Iran. That's been one of their focuses since they took office. We're they're struggling, and I think Pompeo admitted this, is getting Europe to come along. And they are working at it but not having as much success as they'd like.

PAGE: He's sounded very critical of the allies, of Great Britain and Germany and France, who have devised this kind of scheme to help Iran get around the U.S. sanctions and keep the nuclear deal alive. It's clearly a big breach within our traditional alliance.

YORK: I liked your question about Iran's astounding failure rate with their missile test.

BAIER: He wasn't going down that raod.

YORK: In the last decade or so about 65 percent of their orbital launches have failed. They have really bad luck. And maybe somebody is helping them have bad luck.

BAIER: Yes. Panel, thank you. I think there are big challenges ahead with Venezuela after that breaking news that Maduro says he's not stepping down at all. We'll continue to follow that as well.

When we come back, Washington says a final goodbye.


BAIER: Finally tonight, Washington leaders today honored the life and legacy of the longest serving member of Congress, John Dingell.


BILL CLINTON, FORMER PRESIDENT: John Dingell was a stand-up guy. He got up, he suited up, he played the game straight ahead.

UNIDENTIFIED MALE: I flew in that old Detroit airport and, who was waiting for me at gate G57? It was John Dingell, bad hip and all. Now he's waiting for us at another gate to visit again.


BAIER: Our condolences to Congresswoman Debbie Dingell, a frequent guest on this channel. And all the best of the family as Washington says goodbye to a lion in the House, John Dingell. He died last week at 92.

Thanks for inviting us into your home tonight. That's it for this “Special Report,” fair, balanced, and unafraid. "The Story" hosted by Martha MacCallum starts right now. And Martha, it's not like we have any news today.

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