Turley: Mueller's appointment was a mistake; Gingrich: Big mistake to move forward without Sessions

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Jonathan Turley: Mueller's appointment was a mistake

President Trump's lawyers are monitoring the special counsel probe; legal expert provides insight on 'The Story'

This is a rush transcript from "The Story," July 24, 2017. This copy may not be in its final form and may be updated.

MARTHA MACCALLUM, HOST: Breaking tonight, let's take you alive to the scene in Glen Jean, West Virginia, where President Trump is addressing the boy scouts' jamboree. Let's listen in. It's been pretty interesting so far.

(BEGIN VIDEOTAPE)

PRESIDENT DONALD TRUMP: We're going to be bringing back, very soon, trillions of dollars from companies that can get their money back into this country, and that money is going to be used to help rebuild America. We are doing things that nobody ever thought was possible, and we've just started. It's just the beginning, believe me.

(CROWD CHEERING)

You know, in the boy scouts, you learn right from wrong, correct? You learn to contribute to your communities, to take pride in your nation, and to seek out opportunities to serve. You pledge to help other people at all times.

(CROWD CHEERING)

In the scout oath, you pledge on your honor to do your best and to do your duty to God and your country.

(CROWD CHEERING)

And by the way, under the Trump administration, you'll be saying: "Merry Christmas," again when you go shopping, believe me. Merry Christmas!

(CROWD CHEERING)

They've been downplaying that little beautiful phrase. You'll be saying Merry Christmas again, folks. But the words: duty, country, and God are beautiful words. In other words, basically what you are doing is you are pledging to be a great American patriot.

(CROWD CHEERING)

For more than a century, that is exactly what our boy scouts have been. Last year, you gave more than 15 million hours of service to helping people in your communities. Incredible! That's an incredible stat.

(CROWD CHEERING)

All of you here tonight will contribute more than 100,000 hours of service by the end of this jamboree, 100,000. When natural disaster strikes, when people face hardship, when the beauty and glory of our outdoor spaces must be restored and taken care of, America turns to the boy scouts because we know that the boy scouts never, ever, ever let us down.

(CROWD CHEERING)

(END VIDEO CLIP)

MACCALLUM: All right. Good evening, everybody. That's the President. As we said, he is in West Virginia tonight at the Boy Scouts' Jamboree which happens every four years. I'm Martha MacCallum, and here is a very interesting story for this Monday night. Watch.

(BEGIN VIDEO CLIP)

TRUMP: A scout is trustworthy, loyal; we could do similar loyalty, I will tell you that.

(END VIDEO CLIP)

MACCALLUM: So, was that yet another message today for one Jeff Sessions? The President started the day with this tweet earlier, asking why the beleaguered A.G., as you see in the text of this, is not digging into Hillary Clinton and her ties to Russia. Then on Air Force One later this evening, Anthony Scaramucci said that Trump and Sessions need to "speak and determine what the future of the relationship is."

So, you're going to hear in a moment from Laura Trump who is head of the Trump reelection effort on Mr. Sessions' fate in a moment as well so stick around for that, but what about the question of Robert Mueller? The President also continues to put periodic doubt into whether or not he believes that the Special Counsel has conflicts of interest that may make a case to remove him. So is the President putting the old band back together at the White House?

Rudy Giuliani was spotted on a flight today to D.C. He has shut down some of those discussions, but there are also reports that Newt Gingrich may take a bigger role. So, he's here in a moment live on THE STORY tonight. But first, Chief National Correspondent, Ed Henry, who has been watching the Boy Scouts' Jamboree with me live in New York tonight. It's never boring in the Trump White House.

ED HENRY, FOX NEWS CHANNEL CHIEF NATIONAL CORRESPONDENT: No, not at all. Good to see you, Martha. What's interesting is that in the last 24 hours, the President has pulled no punches aimed at friend and foe alike. Today, as you mentioned tweeting against the former opponent he still calls "crooked Hillary" and offered a new nickname for one of the many Democrats investigating Russia, "sleazy Adam Schiff," he said. But the Commander-in-Chief, who today, also rallied support for the efforts to repeal and replace by declaring Republicans have not done their job and may end up feeling the wrath of voters.

Now, seems to be also getting restless with some key members of his own staff and cabinet. Important to note: talk of the demise of top aide like Steve Bannon, and Chief of Staff Reince Priebus has been predicted by the mainstream media, practically, since hour one of the administration, and they are still standing. But various officials, suggesting us, these two one-time rivals now becoming friends by default, trying to figure out how to survive.

Remember, by bringing in Anthony Scaramucci, the President overruled both Bannon and Priebus. Political reporting, that while Bannon used to be in the oval office most the day, he now spends hour after hour, camped out at Priebus' conference table. Axios' reporting that previous, "Reince has very few true allies inside the building; at this point, they don't stretch much further than his personal assistant and then Republican National Committee holdovers on the press team."

In fact, a source close to the President told me: the key here is in recent days, President's son-in-law, Jared Kushner, has increasing become a sharp critic of Priebus in private. So, watch that. Meanwhile, two officials at the State Department insisting to Fox tonight, there is no truth to a CNN report that Secretary of State, Rex Tillerson, is thinking about leaving by the end of the year. Though one of these sources admits, Tillerson has been very frustrated in the Post.

Meanwhile, the speculation all over the map, as you said about Jeff Sessions. After that beleaguered tweet, one rumor claiming Rudy Giuliani was replacing him. The former mayor insisting no, he's not interested in the job, and in fact, he agrees with Session on the decision to recuse himself from the Russian investigation. Then social media going nuts with another rumor, that Sessions was spotted at the White House -- maybe he resigned at lunch.

Our Justice Department Producer, Jake Gibson, reporting actually Sessions met with the White House Counsel, Don McGhan, and the House Secretary, Tom Price, on health care issues. So, the bottom line here, Martha, yes, there are still a lot of speculation about who's in and who's out, but we've been hearing this month after month and the President has still remained firmly in control, and very few of these rumors and all the rest have really panned out.

MACCALLUM: Yes. And we have seen in the past that sometimes it takes them a while. If he's thinking about maybe getting rid of someone, sometimes it's just talks.

HENRY: And he doesn't like to fire them, actually. And in the case of Sean Spicer, he resigned. In the case of Reince Priebus --

MACCALLUM: He's a softy.

HENRY: He lets people, and he pushes, and he pushes until they leave.

MACCALLUM: You know -- I mean, it raises a lot of questions. Jeff Sessions has been one of the people who has overseen some of the most successful efforts of the administration, and yet there are some serious questions about whether or not he should have recused. Did he buckle on that and was that the wrong thing to do?

HENRY: This President, more than anything, values street fighters around him. And so, I'm also told by a source close to the President that one of the reasons why he brought in Anthony Scaramucci is exactly what you said about Robert Mueller: the possibility -- underline the word possibility that Mueller could be fired. He wants the President, I'm told by the source, wants street fighter around him. Ready to make the case on those conflicts of interest, and ready to fight with this President to the death on the idea that he believes he's been treated unfairly.

He may be wrong about that, he may be right about that, I'm a reporter, reporting facts about what the people around him are saying. I'm not taking the position on it, but the fact of the matter is this President is still very angry about Mueller and angry about Sessions, his own Attorney General.

MACCALLUM: Sure, seems to me. Thank you very much. Ed, good to see you tonight.

HENRY: Good to see you.

MACCALLUM: So, President Trump and his lawyers are raising some new questions that Ed and I just discussed a bit, over whether Robert Mueller will remain as the Special Counsel on the investigation into the alleged Trump campaign collusion which we heard about from Jared Kushner today as well. Last week, the President claimed that Mr. Mueller has conflicts of interest. His lawyer added yesterday that this is something that they are watching very closely. Listen to this.

(BEGIN VIDEO CLIP)

JAY SEKULOW, ATTORNEY TO PRESIDENT TRUMP: What the President is talking about, in due time, if there is, in fact, a conflict that the legal team deems is significant enough that it needs to be raised, as any lawyer would do, we would raise the conflict with the special counsel.

(END VIDEO CLIP)

MACCALLUM: Jonathan Turley, renowned Constitutional Law Attorney, and Professor at George Washington Law School. Jonathan, good evening, good to see you tonight.

JONATHAN TURLEY, CONSTITUTIONAL LAW ATTORNEY AND PROFESSOR AT GEORGE WASHINGTON LAW SCHOOL: Hi, Martha.

MACCALLUM: It's interesting when you follow the Trump administration, you see the sort of these little markers being put down in certain areas. And the argument is being, perhaps, touched on, constructed at some level that there's a conflict of interest with Robert Mueller. How difficult is that ground and should they be going in that direction do you think?

TURLEY: It's very difficult. One of the people that actually have raised the issue of the conflicts with Mueller, I think his appointment was a mistake by Rod Rosenstein because of his history with Comey. But more importantly, he interviewed for Comey's job, and that probably should've taken him off the list. But these conflicts in terms of appointing people that made contributions are not going to be successful at the Department of Justice. They're not the grounds for that type of radical change. They're allowed to make those political contributions.

I'm astonished that he picked people that made large political contributions. You can throw a stick on any corner in D.C. and hit 20 lawyers. It seems to me that Mueller could've picked people that were not so politically involved. But having said that, you're not going to see a change, I think, through the Department of Justice. Now, when you're talking about firing Mueller, he could probably do that. It would put them in the biggest jam since Taft got stuck in the White House bathtub. I mean, it is a really bad idea.

Because think about how this would work, Martha. He couldn't talk to Sessions because he recused himself. He would go to Rosenstein who appointed Mueller and says fire him. Rosenstein presumably would say no, and he would either be fired himself or resign. Then, the President would have to find a sort of Bob Fork, who's willing to do what Rosenstein wouldn't do. You could go through that leadership having resignation after resignation. In the meantime, people would cite that as a basis for impeachment. They would move to try to pass the Independent Counsel Act. It wouldn't end this. It would prolong it.

MACCALLUM: So, I just want to put up on the screen a quote from President Trump, and this was in the New York Times interview that he did a Friday ago. He said, "We were interviewing replacements at the FBI. Did you know, Mueller, was one of the people that were being interviewed? The next day he's appointed Special Counsel. Talk about conflicts?" The President said. "There were many other conflicts that I haven't said, but I will at some point." That's a loaded statement.

TURLEY: Well, frankly, Mr. President, you should just tell us. But I happen to agree with him that Mueller's selection was highly problematic. Mueller, on some level, is a witness. I can't believe that he was interviewed for Comey's job and the President didn't talk about his firing of Comey or what he wanted in Comey's replacement. That means that he's holding material information to his own investigation. That's a very odd person to select as special counsel. So, the President could very well be right about that. But in terms of firing Mueller, they would bring a great deal of hurt down that mountain and it would not be to the advantage of his administration.

MACCALLUM: All right. That's going to be a question that they're going to have to weigh if they keep going down this road, how much hurt they are willing to take on. He's also made it very clear that he doesn't want this investigation to start going into areas where he feels are not the purview of the Russian investigation. And that's something I know his lawyers are watching very closely as well.

Jonathan Turley, thank you very much. Always good to see you, Jonathan. So, President Trump's son-in-law and Senior Adviser, Jared Kushner, met Senate Aides today, in a closed-door hearing. Tomorrow, he will do the same with members on the House side. This was earlier, Jared Kushner, the advisor to the President, outside the White House. Watch.

(BEGIN VIDEO CLIP)

JARED KUSHNER, SON-IN-LAW AND ADVISOR TO PRESIDENT TRUMP: Let me be very clear, I did not collude with Russia, nor do I know of anyone else in the campaign who did so. I had no improper contacts. I have not relied on Russian funds for my businesses. And I have been fully transparent in providing all requested information.

(END VIDEO CLIP)

MACCALLUM: Joining me now an exclusive interview with Congressman Trey Gowdy, who sits on the House Committee where that will happen tomorrow; those discussions behind closed doors with Jared Kushner. So, good to see you, Congressman, as always, thanks for coming back on the show.

REP. TREY GOWDY, R-S.C.: Yes, ma'am.

MACCALLUM: So, were you surprised that he made a public comment today?

GOWDY: I wasn't. He's not a public person. I think this would be among his first public comments, but you can only be accused of something for so long. Human nature sights that you want to defend yourself.

MACCALLUM: So, in terms of the statement he put out, you'll be questioning him about the contents of that and likely other things tomorrow. What stood out to you? What you want to achieve tomorrow in that back and forth?

GOWDY: Well, first of all, Martha, this is exactly the way serious investigations are supposed to be conducted. You examine a witness, you cross-examine the witness, you look for corroboration or contradiction. You don't use anonymous sources and selective leaks and prejudge the outcome. So, what's happening tomorrow, us interviewing a witness, is exactly what we should be doing. His statement is helpful, it provides a road map. I have additional questions both based on what he said and things that were not said in his 11-page statement. But for those who are not used to seeing the way investigations are supposed to be run, this is how they're supposed to be done.

[19:15:00] MACCALLUM: So, in terms of what's in that 11-page statement, which has been out there, you know, throughout the course of the day today, and everyone has had a chance to read it. He talks about the meeting with Don Jr., and he really says, you know, I didn't read the e-mail chain with regard to that meeting. And all it set on my calendar was, you know, that I had a meeting at that time with Don Jr. So, he basically says he walked into the room, and kind of got sucked into a meeting he that he didn't really want to be at. And then he texted his assistant and said, you know, looking for a sort of polite way to get out of it, because he thought that it was a waste of time in his words. Do you find that credible?

GOWDY: I do. And that's exactly why it is important to conduct investigations. There is corroboration for what he said. What he said was, I didn't know what the meeting was about, and soon as I got into it I realized I'm in the wrong place. So, he said two separate e-mails saying can you please call me, so I can have an excuse to get out of this meeting. So, that's what I mean by corroboration. The fact that he didn't remember the name of the Russian Ambassador until November the ninth, that is corroboration. That's what you are looking for in an investigation, a statement that is either corroborated or contradicted. In this case, it's corroborated.

MACCALLUM: Yes. The moment that you just talked about is he called the Russian embassy and said what is the name of the Russian ambassador because he was trying to put together his notes and all these forms. He also pointed out that he had a couple of, you know, sort of, he describes them as sort of chance meetings along the way. But he said I was invited to have lunch at this Ambassador and not just talking about his interactions with Russians, he's talking about all the foreign people who reached out to him when his father-in-law was elected. You know, does that whole argument hold water? He says I didn't put any of those in the forms that got pulled too early, so I went back and corrected them all.

GOWDY: Well, we're going to ask him about that tomorrow. He said, it was inadvertently sent and he corrected it the next day. If you look at the other -- we have his call list, if you look calls he was going to make, it was to representatives of lots of different countries. So, that's why you need the documents. That's why you have to have the back and forth with the witness. That's why you don't let California Congressmen prejudge the outcome of investigations. That's why we're talking to him tomorrow. So, if there is a benign explanation, or if the Democrats want to assert a less than benign explanation, tomorrow is the day to do it.

MACCALLUM: What do you say about those who say, why does this have to happen behind closed doors? Why not let him have his moment in front of everybody and speak his piece?

GOWDY: Because Members of Congress cannot behave themselves in public settings. And every serious investigation, you can't think of one that's not done behind closed doors. You don't have a clue who Bob Mueller is talking to. I don't know who he's talking to. You're not supposed to know. You don't know who that sheriff in your home county is talking to about the latest arm robbery. Serious investigations are done without time limits, and frequently without the political posturing that you see in this town.

I mean, stop and think, Martha. We have anonymous sources. We have selective leaks. And then, we have Members of Congress prejudging the outcome of the investigation. That's why this is not serious. So, praise the Lord that we're actually doing one thing tomorrow that very vaguely resembles a serious investigation. No time limits behind closed doors.

MACCALLUM: Congressman Trey Gowdy, thank you very much. Good to see you.

GOWDY: Yes, ma'am, you too.

MACCALLUM: So, as you heard earlier, Senior Advisor and Son-in-Law to President Trump, Jared Kushner, we were just discussing it, fired back today after two hours of questioning from Senate investigators. Mr. Kushner and Donald Trump Jr. are two members of the President's family at the center of this -- part of this whole investigation on the Russia issue, both are speaking to Congress this week. So, earlier today, I sat down with Lara Trump about the family's state of mind with all of this. Watch.

(BEGIN VIDEOTAPE)

MACCALLUM: It's good to see you, Lara, welcome.

LARA TRUMP, WIFE OF ERIC TRUMP AND DAUGHTER-IN-LAW OF PRESIDENT TRUMP: Thank you.

MACCALLUM: So, Jared Kushner, I think a lot of people had never heard him speak before he went out there today. He's very private. He's very behind the scenes. Why has the family made the decision that he should go public at this point?

L.TRUMP: Well, I think that was up to Jared. Listen, you're right, Jared has never sought out of the limelight. He's a very humble individual, but he played a big role in the campaign. He obviously, played a huge role in the administration. And I think for the entire family, this whole notion that there was any collusion with Russia is so ridiculous. Jared, wanted to clarify and be as transparent as possible, which is exactly what you saw happen today. And I think he did a great job of that.

You know, he has told the committee everything he knows. He's handed over all the documents he has. And you saw the same thing happen with my brother-in-law Don Jr. You know, he put out on Twitter the entire e-mail back and forth, because transparency is very important to us. And so, I really commend both of them for the fact that nobody used bleached it. Nobody deleted emails. Nobody destroyed, you know, cell phones with hammers. We are being very upfront with this because we want the world to know that there was no collusion.

MACCALLUM: There was a lot of discussion about the intrigue in the White House, and that everybody has their own lawyers and their own team, and that they are sort of like islands existing in the middle of this storm. What's your reaction to that?

L. TRUMP: Well, I would disagree with that. I think we're very cohesive as a family unit. And I think, you know, listen, it does feel like the world is against us right now, but we're all standing strong. And sure, people may have different lawyers, but we are all the same family. We worked incredibly hard, Martha, on this campaign, and you actually heard it right there from Jared. You know, the idea that there was anything other than the President's message than the fact that he ran a better campaign, that he was a better candidate, that won this election for him is quite frankly insulting to the American voters. Because what they saw in him is what we see today in him as President that he's leading this country, and you know, we are finally going the right direction.

MACCALLUM: Let me ask you this because we're seeing some shuffle. We saw Sean Spicer leave last week. You've got a new Director of Communications in Anthony Scaramucci. Is there feeling among the family that the people who were loyalists during the campaign deserve a more front row seat to the President? That they deserve to be on the team and that some of these more establishment folks, for lack of a better description, may be or not serving him that well?

L. TRUMP: I just think Donald Trump is being Donald Trump. He's a businessman. He's run a business his whole life. And when something isn't working, he changes it. And Sean Spicer is an incredible guy, and he did a great job, but he felt like maybe someone else could carry that message better. And so, you know, whether it's a person who is incredibly loyal to the campaign or just a different individual, Donald Trump wants what works for him for this country.

MACCALLUM: He called the Attorney General his beleaguered A.G. today. Does he want him to leave, Jeff Sessions?

L. TRUMP: Well, listen, I think that he's made his stance on Jeff Sessions very clear. I think he could've done things differently himself, but I think, you know, that remains to be seen what happens with him. But what I will tell you is -- my father-in-law is a very loyal individual, and he is very loyal to people who are loyal to him. And when he feels like somebody isn't doing a good job or is not being loyal, he's going to correct that. And I think that's what we've seen in the White House so far.

MACCALLUM: Lara Trump, good to see you. Thank you very much.

L. TRUMP: Thank you.

(END VIDEOTAPE)

MACCALLUM: Interesting to speak with her earlier today. So, here now to weigh in on all of this tonight: former Speaker of the House, Newt Gingrich, author of the number one best-selling book -- the New York Times' best seller list, also a Fox News Contributor. Newt, good evening, good to see you tonight.

NEWT GINGRICH, FOX NEWS CONTRIBUTOR AND FORMER SPEAKER OF THE HOUSE: Good to see you.

MACCALLUM: So, tell me a little bit about -- you know, we've been through a lot of discussion about Jeff Sessions, first of all, and the President has made sort of a couple, you know, not-so-subtle digs at him over the course of today. So, let's start there. Do you think that his days are numbered?

GINGRICH: No, I'd be very surprised. Look, Sessions was the first Senator to endorse Trump. I remember the very first meeting that I went to, which he had Don McGahn hosted but Jeff Sessions chaired it when almost no one was for Trump in Washington. Sessions stayed with Trump when he was ten points behind during the whole taping of the conversation, you know, about sex and all that stuff. Jeff Sessions has been loyal all the way through. Probably, you can make a good case he, shouldn't have recused himself, the President suddenly feels that way. But when you look at Jeff's overall contribution and you look at the work they're doing cooperating with Homeland Security on rolling up MS-13 gangs all over America, you look at what Jeff is doing taking on sanctuary cities and the liberal mayors who refused to protect their citizens from criminals. There's a lot of good in Jeff Sessions. And I think it would be a big mistake for the President to, in any way, do anything except move forward with him.

MACCALLUM: Well, you wrote a book called "Understanding Trump," and you know, when you look at him saying things like "our beleaguered A.G." And then, talking to the boy scouts about how important loyalty is, and you know, his daughter-in-law spoke to us, and basically said, you know, look, loyalty is the main factor here and he clearly feels that Jeff Sessions threw him under the bus when he recused.

GINGRICH: Right. I think he thinks Jeff Sessions made a huge mistake. And I think he believes as a result of that, he's in this enormous fight with Mueller that would not probably have existed. So, he's got a strong case here. On the other hand, I would point out that loyalty is a two-way street. There's a point here where people have to say, the guy was with you from the very beginning, and he makes one big mistake, do you really dump them? And if you do, what signal do you send to everybody else on the team?

MACCALLUM: So, talk to me about the sort of changing the vibe, for a lack of better word, at the White House. You've got Sean Spicer out; Anthony Scaramucci in. There are discussions about maybe Rudy Giuliani, although he shut those down a bit today. And perhaps, you, coming into a more -- sort of outside role/inside role, are you going to take a bigger role in this administration in any way?

[19:25:04] GINGRICH: Look, I'm going to try to be helpful in ways that the President finds useful. I'm focused very much now on getting a tax cut bill passed and signed into law by Thanksgiving. I think that's the most important project for Republicans in the next few months, and key to the 2018 election. But let me just say, I think Scaramucci is a good choice for a reason that may surprise you. Scaramucci is a New Yorker. He's a businessman. He's a millionaire. He actually is a natural fighter. He will take some of the pressure off Trump.

I think Trump has felt -- the President has felt, very beleaguered. He talked about the beleaguered secretary -- I mean, attorney general. I think the President's felt beleaguered because frankly this thing is so totally screwed up, it is so one-sided, and it is such a witch hunt. That I'm also -- I'm totally sympathetic to the Trump position. I think it's absurd that the Republicans in Congress have not investigated the Clinton Foundation, the Clinton 33,000 e-mails, all of those things.

You want to talk about Russian involvement, then, let's start with the Clinton Foundation. I think it's absurd that they haven't -- frankly, gone right at the deputy attorney general and said tell us what it is Mueller is investigating? He's supposed to have a law. There's supposed to be a crime that Mueller's investigating. Tell us what it is. I think that this thing is a witch hunt. I think the people that Mueller's hired are bad people. And I take that the President has every right to be very angry.

MACCALLUM: All right. I got to go. But will you have an official role or just the way you described it, sort of helping on the outside with tax reform and everything?

GINGRICH: I like helping. I like helping.

MACCALLUM: OK. You're very helpful. Thank you, Newt. Good to see you.

GINGRICH: Thanks.

MACCALLUM: So, still ahead tonight, the Democrats are trying to take a page out of President Trump's playbook perhaps, unveiling a new populist message ahead of 2018. But do they have politicians who can actually deliver that message? Plus, as we speak, GOP leaders are meeting behind closed doors about tomorrow's big health care vote. And earlier today, the President turned the heat up on the folks on the Hill in a big way; Congressman Jim Jordan joins me next.

(BEGIN VIDEO CLIP)

TRUMP: Every member of the Senate, I say this: the American people have waited long enough. There's been enough talk and no action. Now is the time for action.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

TRUMP: By the way, are you going to get the votes? You better get them. He better get them. Otherwise, I'll say, Tom, you're fired. I'll get somebody.

(END VIDEO CLIP)

MACCALLUM: Talking about Tom Price there. President Trump just moments ago, joking around with the Health and Human services secretary. The president also ratcheting up the pressure on senators one day ahead of their critical vote on whether or not to proceed with the vote. So here now is Ohio congressman, Jim Jordan, a founding member of the house freedom caucus. Congressman, good to see you tonight. Welcome.

REP. JIM JORDAN, R-OHIO: Good to be here, Martha.

MACCALLUM: So Tom Price's job is on the line up, apparently. The president said he'd like to see this happen. But I know that you would like to see it happen, but you want to see the repeal happen first, right?

JORDAN: Well, we started that process last week in the house. Our leadership won't bring up the clean repeal, so we started the process to make a run around and actually bring the clean repeal. The same thing we voted on last congress that we put on them President Obama's desk. Let's put that on President Trump's desk after all that's what we told the American people we're going to do. The president said he's for it, Vice President Pence says he's for it, Senator Schatz and other senators says they're for it, so let's hope that that happens. If they get to the motion of proceeding, call it up and it passes, that's great, then we can take it up and pass it and do what we've told the American people we're going to do.

MACCALLUM: But how much real support is there on the senate side for a repeal only bill?

JORDAN: You know, we don't know. But, you know, if you always believe the conventional wisdom you never play the game. I always say that they kick the ball off on Friday night because sometimes the underdog beats the team that's favored. So the conventional wisdom is, oh, they wouldn't have the votes for it, even though they all voted for it just last congress. So, I say call it up, called the question, and sometimes in the light of day in front of God and everybody, people actually vote different than what they say before the actual vote happens. So I hope we have the vote in both the house and the senate. That's why we're starting the discharge petition to bring it to the floor.

MACCALLUM: Well, on the senate side, you make a good point because back in 2015 on the senate side I think there were only two senators who voted against that, right?

JORDAN: Yeah. Only one is still there, Senator Collins, obviously, senator -- one of the members who was in the house and in the senate. So 50 votes for it, in the senate, and every single house member who was here, who came back voted for it in the house. So now, somehow, this is what drives voters crazy.

MACCALLUM: Right.

JORDAN: Somehow now when it counts you can't do what you did before when you campaigned on for the last six years? That just drives them crazy. And we should actually bring it up and pass it.

MACCALLUM: And it's a pretty powerful argument for any one of those members on the house or the senate side for their constituents to say to them, why were you OK with the repeal vote in 2015, but now that you have the actual opportunity to move forward with it you're no longer -- they need to tell the folks at home why they changed their mind on repeal, right?

JORDAN: Exactly right. That's why we think it's incumbent upon us to put it on the floor. Let's actually have the vote. Why can't you do what you did before, why can't you do what you told them what we're going to do, what they like us to do in 2010, what they elected us to do in ‘14, what they elected us to do on November 8th, 2016. Remember, back before inauguration we said we were going to put on President Trump's desk that bill on the day that he came into office. That clean repeal, so let's go back to that if we can.

MACCALLUM: All right. Congressman Jordan, thank you. Good to see you tonight.

JORDAN: Thank you, Martha. Take care.

MACCALLUM: So coming up, new developments this evening in a tragic story in Texas, where ten immigrants were essentially baked in a truck that was outside this Walmart. It is the most heart wrenching story, and there are serious charges tonight for the driver. So we're going to talk about sanctuary cities and about this horrific, awful incident straight ahead. Plus, eight months after they lost the White House, are the Democrats finally ready to move beyond just resisting? Chris Stirewalt, Adrienne Elrod and Charles Hurt weigh in on the new messaging that they're trying. Here's a hint. Sounds a little bit like what we heard from President Trump. How will the shoe feel on the other foot?

(BEGIN VIDEO CLIP)

SEN. CHUCK SCHUMER, D-N.Y., MINORITY LEADER: When you lose elections as we did in 2014 and 2016, you don't flinch. You don't blink. You look in the mirror and ask what did we do wrong?

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MACCALLUM: So a better deal. That's what's being promised by Democrats today, unveiling a new economic agenda as they start looking forward to 2018. Watch.

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REP. NANCY PELOSI, D-CALIF., MINORITY LEADER: Democrats know a better deal for hard-working men and women demands bigger, braver thinking, to create jobs and raise income.

SCHUMER: Trump campaigned on a populist platform, talking to working people. That's why he won. But as soon as he got into office he abandoned them. We Democrats are going to fill that vacuum.

SEN. ELIZABETH WARREN, D-MASS.: This is one step that Democrats are offering to take back our government. And it's a darn good step.

(END VIDEO CLIPS)

MACCALLUM: So the party trying to present a forward-looking message after struggling to find routing behind the resistance that they launched after the 2016 election and spent quite a bit of time on. The Democrats already find themselves behind in the muddy game, your numbers revealing what looks to be a bit of an enthusiasm gap for the GOP. Take a look at that. Cash on hand, $44 million for the RNC. Chris Stirewalt is Fox News politics editor, Adrienne Elrod is former director of strategic communications for the Clinton campaign, Charles Hurt is political columnist for the Washington times, and a Fox News contributor. Welcome to all of you. So, obviously, they've lost a bunch of special election, and they basically been dug into this resistance idea, and it seems now that it's occurred to Charles Schumer and others that maybe they need something more than that, Chris.

CHRIS STIREWALT, FOX NEWS POLITICS EDITOR: Yeah. And this is a good message for Democrats. This is -- you know, when you lose -- when you lose the economic argument to a billionaire from New York, you may have lost your touch.

MACCALLUM: It's time for a gut check.

STIREWALT: . and populism. Yeah. To a Republican, nonetheless, you may have lost your touch of populism. So this message, which is very pragmatic, I won't say exactly moderate, but it is not a radical, Bernie Sanders, leftarian, these are useful talking points for Democratic house candidates that are running in the kinds of districts where they will need to win if they expect to have a reasonable shot at winning back the house next year.

MACCALLUM: I mean, most of it involves spending more money from the federal government or from companies. You're going to raise the minimum wage, Adrian, as one of the tenants of this, increase health care in a number of ways as well, programs for jobs, that kind of thing. I don't think any of it is really revolutionary in terms of the idea that Democrats adhere to, but they lost so many of their, sort of, union, blue-collar workers in the last round. They need to try to get them back.

ANDRIENNE ELROD, CLINTON CAMPAIGN FORMER DIRECTOR OF STRATEGIC COMMUNICATION: Right. Look, I agree with Chris on this. This is a great message for Democrats, the advocating for -- part of what we have talked about in the resistance, this forms since Donald Trump has become president, is that we've actually have a forward thinking, positive message. Donald Trump did run on putting people back to work. Especially in some of these, what we call flyover states. States that have been economic despair and lost a lot of jobs, but since he came to office he's done basically nothing about it. So Chuck Schumer was very smart in putting together this plan. Again, I think anytime Democrats are talking about the economy and putting people back to work, that's a good thing.

MACCALLUM: All right. Charlie, quick thought on that, and then I want to get your thoughts on this story from the Washington Post that's just crossed a moment ago.

CHARLIE HURT, THE WASHINGTON POST POLITICAL COLUMNIST: Sure. Well, you know, obviously, the big problem for Democrats is, is not that they quit giving that message, is that they've lost all credibility whatsoever in giving that message. And it's kind of humorous to sit here today and listen to Nancy Pelosi who's been trying to deliver this message for however long she's been in power now, and she's just trying to kind of reboot her own political career with new talking points. And people aren't buying it, and they haven't been buying it for the past eight years, since President Obama won his first election. And I don't think they're going to start buying it now.

MACCALLUM: Well, we know Nancy Pelosi has not been a great selling point for some of the candidates in the course of the special elections that we saw campaigning against having her continue what was kind of a strong point for some of the Republicans who won those seats. This Washington Post story rolling across just a few moments ago, basically adds to what we talked about at the top of the show, which is that it doesn't look good for Jeff Sessions if you read -- not even so much between the lines of the tweets. They're pretty much right out there. The beleaguered A.G. was just one of them. And they you're talking about loyalty to the boy scouts, Chris, it looks increasingly like they're going to find a way to try to nudge him out or get him to resign, do you agree?

STIREWALT: What a humiliating, astonishing way to lay low Jeff Sessions, who -- whatever people think about him and congress, whether they agree with him or disagree with him in the senate, an honorable man, a loyal man, a man -- his love to the constitution for the country. He stood by Donald Trump. He put that hat on when everybody told him it was career suicide. You can't do this. He's no good. And that was when Trump was a long shot, couldn't win. To see the depredations of Jefferson, but regards Sessions, through this and his services as attorney general is a really sad thing. And it makes you understand why so few people really want to get in government and really want to get in public light because you might end up abused and used like Jeff Sessions has been.

MACCALLUM: A couple names that are floating in this piece, Rudy Giuliani is one of them, Charlie. He set himself, apparently, to a reporter today that he thought that Sessions made the right decision when he recused himself from the Russian investigation. That he's not in the running. Ted Cruz is the other name that surfaces in this article as a possibility to follow up in his position.

HURT: And, of course, you know, the reasons that Jeff Sessions recused himself has nothing to do with his alleged ties to Russia, but the fact that he was a clear surrogate of the campaign itself. But I agree with Chris about -- Jeff Sessions is not and never has been a problem in Washington. The direction that President Trump has gotten from voters to come and clean up Washington, it's not about Jeff Sessions. Jeff Sessions is an ally, and it's unfortunate that he is kind of taking a wire brush to Jeff Sessions.

MACCALLUM: So Adrienne, what would the response be on the Democrat side if the president were to remove the attorney general in one or the other, whether he resigned, however that would play out, and then possibly, there's also this discussion about Mueller and this chain reaction that could happen if he decides to remove Sessions.

ELROD: Well, look, first of all, Attorney General Sessions, regardless of what you think about him, did the right thing by recusing himself in this investigation. And what is so deeply troubling to me, and many other Democrats, and many Americans in general, is the fact that Donald Trump simply has no regard for the way our justice system is set up. If he doesn't like the way somebody handle something, even if it's looking at an investigation independently, which, of course, what Bob Mueller is doing. And we're starting to look at him being attacked by Trump and his surrogates as being somebody who, in their view, is not credible to conduct an investigation that should be independent, he fires them. And that in itself is incredibly disturbing. Regardless of your party affiliation, everybody should be concerned that Donald Trump does seem to have a complete lack of disregard for our justice system.

MACCALLUM: Adrianne, Chris, and Charlie, thank you very much. Good to see you all.

ELROD: Thank you.

MACCALLUM: So still ahead tonight, a tractor trailer found with ten immigrants who lost their lives trapped in that sweltering truck. And now the driver could be facing the death penalty. Attorney Mark Eiglarsh on whether his excuse could save his life. And the race that sparked some serious backlash and disappointment over the weekend for the greatest Olympian of all time, after this.

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MACCALLUM: So this story developing tonight, a truck driver could be facing the death penalty after ten illegal immigrants died being smuggled into the back of his tractor trailer that was parked outside of Walmart in San Antonio, Texas. We're now learning that up to 100 people may have been packed inside that sweltering truck. But the driver, James Bradley, Jr., claims that he did not know that anybody was being snuck into the country in his truck. So joining us now, criminal defense attorney, Mark Eiglarsh, on whether that excuse can hold up. I mean, Mark, this is just a tragically sad story. It was over 100 degrees in that truck, and apparently they were taking turns letting each other breathe through a hole that was in the side of the wall. I mean, it's just an excruciating story. But legally, what does it mean?

MARK EIGLARSH, CRIMINAL DEFENSE ATTORNEY: Well, you're going to expect to hear from him this defense. It happens with many of my clients who traffic either, guns, human beings, drugs, you're caught red handed. So the question is what's your defense, I didn't know. OK. So then the burden, I think, falls on the government to prove that he did know. So what are the facts? Are any of the surviving immigrants saying that they have any contact with him at all? That he would have known. The physical truck versus the rig, is there any way that he knew or should have known that they were back there prior to him getting out at the Walmart and going to urinate, and then hearing all the screaming and then he opens it up? Is there a single witness that can say that he knew? I told him to traffic these people over here and I'd pay him for it. These are the questions that have to be answered. If you don't have that, then this is a reasonable hypothesis of innocence.

MACCALLUM: I mean, if he thought the truck was empty and there's 100 people in it, Mark, and he's a truck driver, he's going to know whether or not there's something in the back of his truck.

EIGLARSH: Well then, there you go. I mean, that's enough for you. But I'm not sure. I don't know enough about trucks. Is that the case? Would he know? I don't know. And so as a defense attorney, I want to go out there, I want to look at the rig. I want to look at the truck. Is there any way that he's driving to know that there are people back there or not?

MACCALLUM: What about the responsibility of sanctuary cities, which in essence by their policies are encouraging people to come into their cities and come to these areas to find work, and there's been some discussion that they bear some of the burden in this cases, because this is clearly not isolated, that they bear some of the burden here as well.

EIGLARSH: And people are entitled to feel morally they bear a responsibility, and maybe civilly they do, money, criminally, absolutely not unless they played any kind of role. But I'm waiting to see what happens on Thursday. Thursday is when the government will have what they call a pretrial detention hearing. They got to put forth sufficient evidence to show that he knew, because right away he told investigators, I didn't know. So how does he know? You're convinced he should know because he should know what's back there. I'm not that convinced, Martha.

MACCALLUM: We'll see. It's just seems to me if you're a truck driver you're going to know whether or not your truck is empty. By the way, it's riding and you're going to know if there's a hundred people in the back of it. But as you say we don't know. And the process is just beginning. So we'll see. Mark, thank you very much. Good to see you tonight.

EIGLARSH: Thank you, Martha.

MACCALLUM: So coming up next, it was supposed to be one of the greatest sports events of all time. It's a shark week, don't you know? But it turned out to be a big disappointment to a lot of people, including some of you, I bet. We will show you what happened coming up next.

(BEGIN VIDEO CLIP)

UNINDENTIFIED MALE: We're going to set Michael up a 100-meter track in the white sharks realm.

UNINDENTIFIED MALE: It leads to this moment. I'm going to test my speed versus a shark.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

MACCALLUM: It was a shark week let down. It was billed as one of the greatest matchups of all time. Olympic swimmer, Michael Phelps, was going to race a great white shark through the open ocean. The hundred meter high- stakes race finally took place last night. Watch how they did it.

(BEGIN VIDEO CLIP)

(MUSIC)

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MACCALLUM: That was not a real shark, was it? In fact, it was faker than robotic jaws. A lot of viewers were left very upset by this, including some who work on this show, feeling misled and tricked for falling for the shark week stunt on Discovery Channel. Clearly, they weren't remembering some of these, right? Hoping for a real race in the water like these great men versus wild sports matchups, like the time in 2013, when NFL player Devin Hester, actually, raced a real cheetah and won. And in ‘07, football player Chad Johnson took on a race horse and won. That's what we're talking about here. So Phelps wants a rematch. Can we build an impenetrable lane that maybe can make this happen? Send me your ideas on twitter. How can we see this happen in the water? We will see you back here at 7:00 tomorrow night. One Tucker Carlson is coming up right now. Have a good night.

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