you down, lou dobbs, fox news. lou: good evening everybody i'm david asman in for lou dobbs. we're following two breaking news stories on wall street and capitol hill. the market the rally is turning into a full on route today with the dow plunging 1175 points suffering its worst point drop in history. investors are worried that the revved up economy will lead to higher inflation and higher interest rates. we'll have a full report in moments also tonight, the house intelligence committee moments ago voting unanimously to make public a democratic memo rebutting allegations the obama justice department and the fbi abused their surveillance powers president trump now has five days to review it and decide

whether or not to block its release and house intel committee chairman devon nunes says he's not done exposing corruption in our government. chairman nunes says the release of the surveillance help o is just phase i of his investigation. the next phase will involve probing the state department for what he calls "irregularities." our special guest tonight is congressman ron desantis and he's one of the republicans calling for a second special counsel to investigate anti-trump bias and corruption in our government. also with us, fox news legal analyst greg jarod, and former deputy assistant to president trump sebastian go. first, our top story market volatility returning with a vengence. the dow suffering its biggest one day point drop in history plunging 1175 points, erasing all its gains for the year. the s & p down 113 and the nasdac down 273 points. volume was massive 11.3 billion

shares changing hands, fears about speaking inflation and borrowing costs leading to the wild day on wall street with the dow down almost 1600 points at its lowest, its biggest intraday point decline ever but for all the panic many experts agree a correction would be healthy for the dow which has been on an unprecedented run since the president was elected. >> we're selling off on good news. that's the problem. the economic news that we see whether it's be factory orders, today's ism non-manufacturing factory numbers it's all good news. >> again another day with absolutely phenomenal economic data in this case it was the services index, employment and new orders at an all-time record high. >> the market anticipated a great economy, they've got a great economy. >> the fundamental economy and we could all agree is very robust and very strong. >> listen the economic news is not only good it's great. david: the white house responded to the sell off with press secretary sarah sanders issuing a statement saying "the

president's focus is on our long -term economic fundamentals which remain exceptionally strong with strengthening u.s. economic growth historically low, unemployment and increasing wages for american workers." president tosses's tax cuts and regulatory reforms will further enhance the u.s. economy and continue to increase prosperity for the american people. as for the president he spent the day on main street at an ohio manufacturing company that gave workers thousand dollar boneses because of the president 's tax cuts and we remind those prematurely panic king the dow is up nearly 33% since election day. the s & p nearly 24% and the nasdac 34%. well from wall street to capitol hill the house intelligence committee now targeting the hillary clinton state department in phase ii of its investigation and tonight voting to release the democratic response to the devastating memo detailing fbi bias against president trump.

fox news chief intel correspondent katherine harrage has our report. >> what we're looking at now is the state department and some of the irregularities there. >> the republican chairman of the house intelligence committee said their work is not done but the focus shifting to foggy bottom under president obama. >> what we will do is follow in phase ii, we'll follow the facts where they lead and when we get enough facts we will then figure out a way to let the american people know likely it won't be done in the way this was done. >> four months before the presidential election is a pivotal period by late july 2016 then fbi director james comey opened the russia probe and former british spy christopher steele was already sharing the trump dossier funded by the dnc and clinton campaign with bureau agents. a former government official undersecretary clinton now confirms steele reached out to the state department in july 2016 about his findings. >> he passed two to four pages of short points of what he was

finding and our immediate reaction to that was this is not in our pursue. this needs to go to the fbi if there is any concern here that one candidate or the election as a whole might be influenced by the russian federation. >> steele is now the subject of a criminal referral asking the justice department to investigate his handling of the dossier and whether he lied to the fbi about its distribution or the fbi misrepresented his statements. the republican chairman of the senate judiciary committee chuck grassley along with senator lindsay graham made the referral last month and released an un classified version. while redacted by the fbi including references to widely available media reports the senators wrote another stream of information was coming to steele it's troubling enough the clinton campaign funded mr. steele's work but these clinton associates were feeding mr. steele allegations raises additional concerns about his credibility. on capitol hill democrats led by

the house intelligence committee is ranking member who drafted a competing 10 page memo called out republican for rejecting a full briefing by fbi director wr ag. >> we do oversight u-haul them in under oath and say why was this included why was that included the interest wasn't oversight. the interest was a political hit job on the fbi in the service of the president. >> late today the house intelligence committee took a vote on releasing the democrats version of the memo and they voted unanimously to send it to the president who has five days to voice any objections. david? david: katherine thank you very much. our first guest says that deputy attorney general rod rosenstein will likely have to appear before congress to explain his actions regarding the fisa warrants for members of the trump campaign. joining me now is congressman ron desantis a member of several key committees including foreign affairs, judiciary and oversight congressman before we get to the issue of rosenstein let's first talk about today's revelations the fact that clinton was

actually feeding information to mr. steele. mr. steele of course then put that information into the trump dossier and that was then fed to the fbi and led to the fisa warrant. it just keeps getting dirtier and dirtyier. >> it really does. you remember what the nunes memo showed is what bruce ohr was doing with his wife. he knew he had met with christopher steele during the campaign and his wife nellie worked for fusion gps but what that showed was there was a steady pipeline of information going from steele and the people he was getting information from directly to the justice department via bruce ohr and the revelations about the state department are very similar. it's a pipeline between the clinton campaign, members of the obama administration, and the law enforcement agency. that's a huge problem. that is not the way the government is supposed to operate and to dig up dirt and lander it through the government

boroughs give me a break. david: well particularly when that was being graded by a political campaign embroiled right in the middle of the election. let me just ask about the state department because of course what first went through my mind was hillary clinton was the secretary of state. she must have had all these contacts there. do you think she played a role in getting some of this dirt into the trump dossier? >> i think that's something we need to find out but i would say she probably didn't need to do very much. what we've learned throughout this process is there are folks in some pretty high positions of power who were non-partisan but had really strong views that donald trump shouldn't be president and they were going to do things to do that like peter strzok so i would be willing to bet that there were probably folks in that agency who were predisposed to want to play this game and do what they can to hurt donald trump and that's a problem. you can have your own views, david that's not a big deal but if that colors your official

actions, that's the problem. david: using the full power of the fbi and the justice department to tilt the scales is not acceptable. all right two senators grassley and graham have this criminal referral to the justice department because of what mr. steele did. apparently he lied to investigators when they asked him questions about whether he talked to the press. what happens with this criminal referral? >> well i think the attorney general needs to take it very seriously, potentially act on it now there's a little bit of disagreement about whether by doing that they actually think steel was lying or they're doing that to pry open maybe more information about what the fbi actually knew and in other words yes, steele may have been meeting with the president but it doesn't mean that somehow, the fbi didn't know all of the information anyway, so whatever his representations were, maybe they were misleading but maybe the fbi knew more than they let on and that's important, david, because the representations they

made in that fisa warrant. if they knew more than they let on, but then didn't disclose it to the court, that is a big deal david: finally, rod rosenstein. the assistant attorney general, i mean the deputy attorney general. he clearly played some role with regard to these fisa warrants signed at least one of them. it's unknown exactly what he knew about the trump dossier whether he knew that it was completely paid for or at least overwhelmingly paid for by the hillary campaign. what happens now with mr. rosenstein? >> i think he does need to come in and answer questions about what he knew. david: behind closed doors, forgive me or in open testimony? >> i would prefer open but if it's going to be in a classified setting they have to do it behind closed doors but he needs to say what he knew at the time and how was the fisa that he extended different than the original fisa? in other words was there additional information that was put there? if he's just rehashing based off

a yahoo news article and the steele dossier and whose unrelated that's really thin and he would have to answer hard questions. david: congressman ron desantis great to see you again congressman thank you very much. >> thank you. david: we're coming right back with much more please stay with us. >> president trump lasting desperate dems as lawmakers gear up for the midterms. >> nancy pelosi what she's doing to this country, and she's gone so far left and schumer has gone so far left, oh, i look forward to running against them. >> we take up whether republican s will add to their majorities with ed rollins and michael goodwin next. and president trump calling a daca deal without a border wall a "waste of time." as a pair of senators unveil their new immigration plan, their new immigration plan, those details and more, straight

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call, visit, or go to xfnitymobile.com. david: democrat senator chris coons and republican john mccain playing politics with immigration offering up a so- called deal falls very far short of white house expectation s. the latest plan gives amnesty to daca recipients in exchange for beefed up border security but no all and no end to chain migration or the lottery system

president trump wasted no time shooting down the proposal tweet ing out "any deal on daca that does not include stronger border security and the desperately-needed wall is a total waste of time. march 5 is rapidly approaching, that's the daca deadline and the dems seem not to care about daca , make a deal." joining me now is ed rollins former white house political director under ronald reagan and chairman of the great american pack and new york post columnist michael goodwin, both are fox news contributors and gentlemen thank you very much. ed, senator mccain of all people , he knows this is not a starting point. i mean it leads me to believe that he does not want a deal, so why else could he be putting this out there? >> maybe this is part of his legacy he's always been wrong on immigration even when he ran for president and my sense is this is just kind of a poke in the eye but it's not going anywhere it's dead. the president made it very clear you want to build a wall which he promised the american public

he would then we'll talk about everything else but if you don't want to build a wall you don't want to fund the wall forget it. david: michael all is coming up in light of the memo, and what it indicates about the deep state. you know, which has been made fun of by the talk shows and democrats saying oh, you conspiracy theorists. what we are seeing now, not just with regard to the fbi or the justice department, now even the state department is involved does indicate that there's these careerists in the government that were dead set against donald trump becoming president. >> and i think that is the key difference between say a permanent bureaucracy or even a regular swamp. we're talking here about the politicization, the weapon station of police powers of all the powers of the government, if the state department i think i mean the way the state department defended hillary clinton's e-mails until the end. we had loretta lynch and the justice department meeting with bill clinton, so all of these examples are not your ordinary permanent bureaucracy or

anything like that and of course -- david: we should mention by the way the idea of police state powers is something that's been talked about and movies made by the left in this country for decades, for as long as i've been alive and yet now they're taking the opposite point of view. we're talking about the media too the media used to always rail against government secrecy in this case the mainstream media was in favor of keeping all this information secret as though the new york times said in an editorial this is the republican plot, a plot against the fbi. i mean it's outrageous how far they've flipped. david: and ed the state department, you and i have talked about the state department before. i mean, for all of the talk about what the fbi and the justice department have done that's highlighted in that memo, the state department i think if you're looking for a nest of bureaucrats who want to keep things the way they've had them who don't want to be shaken up the way donald trump said he was shaking up the bureaucracy the

state department is even harder core than justice. >> well they're very happy with hillary clinton being secretary of state and they are equally happy when john kerry was secretary of state and not very happy with anybody that donald trump has tried to put in there so i think that's a place, they thought of themselves as part of the hillary campaign and to a certain extent any of the stuff they were feeding here to steele was totally improper. david: what do you think is in the state department memo? >> well i think they have everything over there and i think they're the ones that basically had relationships with the russians and obviously knew something was going on and they were very much plotting it. when all is said and done i bet that's the truth. david: michael all of the talk before the memo was released about how its secret information how it would be harmful to national security if not at least the fbi, if it came out, and now, it's completely flipped now, the thing is this a nothing burger. there's nothing in it at all so it goes from being the most

important thing that shouldn't be released to something not important at all. do you think that will pass with the public? >> no these are talking points, political talking points and they're not in any way related to what the content of the memo and what is actually going on and what went on in the fbi and, you know to the state department , i think they have it on both sides. i think they have the hillary e-mail issue they dealt with and the second thing is what was john kerry doing with the russians about trump? i mean what information was kerr y feeding to the russians, what was he feeding to the clinton campaign so i think there's just it really was a collusion of people all conspir ing to defeat donald trump from within the government david: i have 20 seconds from each of you a quick answer will the president release the democratic memo? >> sure he will he's not afraid of this. >> i think he's got to but if there are things in there that need to be scrubbed out i hope it goes to the same process where the fbi gets a chance to

read it. david: fair enough if it goes through the same process the republican memo went by gentlemen thank you very much. and be sure to vote in tonight's poll do you leave an investigation the obama clinton state department could reveal just as much corruption and collusion as found at the fbi or justice department, cast your vote on twitter at lou dobbs and you could follow lieu on twitter at lou dobbs, like him on facebook and follow him on instagram at lou dobbs tonight. coming up next president trump taking a swipe at congressman adam schiff as the house intel committee votes to release the democratic memo. we're going to take it up with fox news legal analyst greg jaro d. each year sarah climbs 58,007 steps. that's the height of mount everest. because each day she chooses to take the stairs. at work, at home... even on the escalator. that can be hard on her lower body, so now she does it with dr. scholl's orthotics. clinically proven to relieve and prevent

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symbicort contains formoterol. medicines like formoterol increase the risk of death from asthma problems. symbicort may increase your risk of lung infections, osteoporosis, and some eye problems. you should tell your doctor if you have a heart condition or high blood pressure before taking it. symbicort could mean a day with better breathing. watch out, piggies! get symbicort free for up to one year. visit saveonsymbicort.com today to learn more. if you can't afford your medication, astrazeneca may be able to help. david: president trump blasting the wrainging democrat on the intel committee said adam schiff is one of the biggest liars, and

leakers in washington, along with comey, warner, brennan, and clapper. adam leaves closed committee hearings to illegally leak confidential information. it must be stopped. you have talked to somebody who has seen the democratic memo. greg: there is not a single shred of evidence that contradicts the stated facts in the intel memo. instead it's based on exaggeration, hyperbole, trying to reshape a narrative. it's also i'm told poorly written. and all the mistakes contained

therein need to be corrected as well. we have had a preview of what that democratic memo might be. jerry nadler released some of his criticisms of the republican memo. one was not a shred of evidence that the steele memo was false. he has it totally backwards. it's not up to somebody to prove the steele men he is false. it's up to the fbi to prove that it's true. the onus is on the fbi to judge the sources that fed mr. steele, and they didn't do that. >> if you read the dossier and that which has been published it's incredibly suspicious on its face it's based on no direct evidence. multiple hearsay, speculation, innuendo. it's the kind of thing any trained fbi agent would say we have to examine this and

determine whether there is any validity to it. under the law, that's the first duty of an fbi agent before opening an investigation. second duty is to determine if it can be factually proven, is there a crime. in this particular case, they had neither. dave require was up to the fbi to check steele sources. they did not do that. andrew mccarthy of the of "the national review" wrote today, this is the outrageous thing about the steele dossier saga. we don't know who the sources are and the fbi never corroborated them. how would a judge allow them to get in knowing the sources were not corroborated. greg: trust. the judge trusted the after gave it. under penalty of perjury they

were vouching for the reliability and truthfulness of that dossier and the judge trusted that. if they made no evident to verify it, then they committed perjury. david: that's illegal. or the weekend you had the democrats and the media coming out talking about how wonderful and thorough fisa courts are and how dare the republicans suggest they are anything but that. they fail to note that over 99% of all fisa warrants are approved. doesn't the entire process by which a fisa court is allowed to spy on americans need to be revisited? >> it absolutely does. this case underscores it can be abused by you be scrupulous prosecutors and fbi agents. these are fine and honorable

judges. but they trust the people that come before them. the fbi agents, the lawyers at the department of justice, to be telling them the truth and not to present some fabricated fake document and apparently now we learned that it was the state department, hillary clinton associates, who were feeding steel who con injures out of thin air this fake document. the common sense intelligence people who say there is a problem and we have to fix it. i was aghast at leon panetta who over the weekend three different times said, well, the intelligence community didn't interview the fisa judge. first of all, mr. panetta, it's more than one nice a judge.

they rotate he 30 days. congress does not have constitutional authority over the judiciary. and third obtain the transcript of the fisa hearing instead of trying to illegally get your hand on the judge to have him testify. panetta's statement was astonishingly naive and ignorant of the law. he's ignorant of the law. david: we are coming right back with much more. please stay with us. disgraceful dems who called the house i tell memo a danger to national security now pushing a memo of their own. >> they continued to leak out bits and pieces of information to create narratives that are always false. david: we take up the dem grats'

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doj and fbi. adam schiff, the top democrat intel committee already is claiming the white house may play politics with his party's memo. >> we want to make sure any redactions that are made are fully explained to our committee by the fbi or doj. and also the white house, we want to make sure the white house doesn't redact our memo for political purposes. that's a deep concern. day dr. sebastian gorka is with us. last week it was all about the democrats saying we have to redact all the national security secrets it's too dangerous. now the situation is reverse. we shouldn't redact anything in the democrat memo, everything should thereby for the public to see. >> as my good friend chris plum

says, if the democrats didn't have double standard, they wouldn't have any standards at all. can we remind ourselves what adam schiff and nancy pelosi said a few days ago? they said if the republican nunes memo is released, it will be the end of the world. sources and methods will be disclosed. what happened? the membership oh isn't redacted one scintilla. the president, nobody has to redact. it comes up, nothing undermines national security. there is no sources and no method unveiled. all we find out is the obama administration, adam schiff's buddies, were weaponizing the fbi and the dawnin -- and the do illegally spy on americans. david: last week they were

saying this is so dangerous, the republic cab memo had to be redacted or perhaps not shown at all. now we hear from the democrats, there was nothing important in there. either it's important or it isn't important. >> you can't have the republican memo and its unveiling trigger armageddon, then 72 hours later be a nothing burger. this is the democrats. this is their argument. either it's incredibly dangerous or it's nothing. can we just remember for the last 50 years what has the left been about? get owl out there. the pentagon papers. david: no matter what happens to the fbi other cia. >> get it out. the church committee, the watergate. now they are the ones concerned?

day they are concerned about leaking after they were the primary sources of the leak. now we have this extraordinary plan that eliminates any movement on the chain migration system, eliminates any movement at all on the important elements of security in particular the wall. and this is presents to donald trump by mr. mccain and the democrat as a solution. it's clearly designed to fail. this is i think on the part of senator mccain another he wants to give donald trump another black eye. on the part of the democrats, i don't think they want any kind of deal with this president before the election. what do you think? >> it's not done in good faith. i would suggest senator mccain crossed the aisle today. he's a democrat. he's working to undermine the president of the united states. senator mccain make it official.

cross the aisle. the chain migration and visa lottery system is non-negotiable. so this is not done in good faith, david. david: be sure to vote in tonight's poll. do you believe an investigation of the obama-clinton state department could reveal just as much corruption conclusion as found in the fbi. cast your vote on twitter @loudobbs. please roll the video. these wing suiters showing no fear as they drop in for an adventure across the rocky mountains in colorado. the military redeploying forces from iraq to afghanistan following gains against the islamic state in iraq. general jack keane joining me to

discuss the move. a little later. the memo from democrats on the house intel committee headed to the white house after the committee voted to release it. committee voted to release it. that and more when

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david: the u.s. military has all but he eradicated the islamic state and has shifted troops from iraq to afghanistan to take care of the taliban. the move is another seen it u.s. is making afghanistan its primary focus in the middle east. the number of troops in afghanistan has nearly doubled since president trump assumed office. joining me is retired general jack keane. he's a fox business senior strategic analyst. general keane, is this wise move, the prompt of troops from iraq to afghanistan? >> we are leaving troops in iraq.

the president trump team is not making the mistake the president obama made which was to pull all our troops out after the bush surge that defeated al qaeda. what we got in return was isis and iranian domination of iraq. they will stay in iraq to push back on iranian influence and achieve political unity. some troops are going from iraq to afghanistan. the pentagon didn't release those numbers. i suspect they are not significant. what is significant in afghanistan is there is an increased presence of u.s. forces, now 14,000. they have better rules of engagement. they have more lethal capability in terms of helicopters and attack aircraft. and they are able to put their advisors down at the fighting level which was not the case in the past. this will enable to us make some

progress against the taliban, david. david: yet you see these awvment terror strikes. civilians are softer targets. it might mean we are increasing our role in doing what we need to do to protect our troops, which is a great thing. however, it does show the taliban and their suicide bombing contingent are still active and probably getting support for pakistan. >> you are right. you put your finger on the number one problem we have in afghanistan and it's simply this. there are two afghan taliban sanctuaries inside pakistan that the pakistani government provides save haven and support through the pakistani army and through their intelligence service. and as such, it's impossible for to us end this war favorable to the united states and the afghan

national army and its government while those sanctuaries are there. they are responsible for most of those bombings that took place in and around kabul. david: i am told that the chinese are getting involved in pakistan street now, trying to pick up the slack that left behind by our withdrawal of some of our support for pakistan until they step up to the plate and stop giving support to the taliban. is that true? have the chinese filled the position or are they trying to fill our position in pakistan? >> absolutely. pakistan has a close relationship with china. china is going to establish a navy base on the coast of pakistan as part of a china projecting its global power and putting a navy base in djibouti. this is all about the indian ocean, by the way. secondly, the pakistanis will go

get that aid we are going to hold back easily from china. they can make that up. what we need to do with the pakistanis is take it gloves off. 16 years they have been harboring the afghan taliban. they have american and afghan blood on their hands. we have to sanction them and if that doesn't work, we have to target those safe havens. david: the places within pakistan. >> yes. david: we are facing another budget deadline this week. and at best what we are going to get is another one of these continuing resolutions for a short-term budget fix. but that doesn't fix the military, does it? >> not even close. as the name implies, continuing resolution provides the funding level from the previous year. the funding level from the

previous year is buying a military that's the smallest in 75 years. 50% of our aircraft in all three services are not fly dog to spare parts. i can make a laundry list of some other problems. we have got to get an appropriated budget for 2018 and do the same for 2019, and we'll finally start rebuilding the military. david: the chance of even a short-term continuing resolution is small let a lone a full budget that would help the military. >> we have been doing a continuing resolution since the beginning of the fiscal year on 1 october. we are close to being halfway through the fiscal year and the troops don't have the increased funding president trump promised and what he signed in an authorization bill. what he needs is an

appropriations bill and that's when the money will start to flow to the military. dave where thanks for being here. in our online poll we asked you, do you believe the house intel memo is going to lead to a major cleanup of corrupt leadership at the fbi and doj. 64% said yes. that's still a lot of people who think no. vince, let me ask about the breaking news that the house intel committee has approved the release much this democratic memo. now it's up to the president. do you think he will release it? and how soon? >> i think he will on the basis of transparency. he has five days to make thing conversation. the key here is that it needs to be -- i think we need to err on the side of having the public

see information like this. if the democratic memo is short on information or discolored the truth, then republicans can respond in kind. it's a good trend when lawmakers start releases information that is overclassified to the public that deserves to see this information in the first place. david: we have a sneak peek of what's in the democratic memo. everrive nadler of new york came out with his own memo. he says nothing in the republican memo disproves the allegations in the trump dossier. in order to get a files ra warrant to -- a fisa warrant to spy on americans, you have to everrify it. the fbi did nothing to try to verify the sources mr. steele used in the trump dossier. so jerry n sarks dler has it

backwards, does he not? >> the fbi went in with some information but not all of the information they had. and that is really the underlying issue with constitutionality and the fisa court because there is so much secrecy in this court. and the fbi is obligated to go in with all of its cars mall even if it doesn't support the exact desires and warrant they are asking for. and we don't see that here. and that is a big problem this situation. and i agree with vince. i think it's great. let's see everything we have got. david: vince, i think there is a bigger problem. this is something the fisa court -- god knows how many other things they have approved. 99% -- over 99% of all fisa warrant are approved. if the applications from as flimsy as this one apparently

was, what does that tell you about the fisa courts? >> it tells me the democrats and republicans should be unified in asking questions of the courts. five or six years ago they would have been all for it. when a court conducts all of its operations in secret, it has no accountability to the public. and it will make mistakes in regards to civil liberties. it's time for lawmakers top make that public. there are questions about the judges who sit on those benches. david: is it conceivable that democrats could put the welfare. americans and i civil liberties which they claimed for years and years to be oh concerned about, could they put those concerns above political concerns and try

to get to the bottom of why fisa courts are being so liberal in giving out these warrants. >> we understand why fisa is there. we understand it's for foreign terrorists and spies within our borders. but we are talking about an american citizen who was surveilled without his 4th amendment constitutional rights. we have to understand democrats, republicans, let's all get together. i agree with you, vince. let's come to an understanding this court may have gone too far, not on here, but in other cases that we don't even know about. david: vince, what do you think the chances of that happening are? >> i think they are very low. very very few libertarians left on the left.

i was shocked when you had politicians and media not in any way sceptical to the benefit of the american public. we should hold the government accountable. gave * rebecca? >> we have a constitution. let's try to give everyone the civil liberties they deserve under the constitution. secret court or not. let's open this up and see what's happening there. david: that's it for us tonight. thank you for joining us. how do you win at business? stay at laquinta.

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kennedy: tonight, president trump said that nunes memo vindicates him, but does it, the judge has answers. >> and right it try experiment at drugs, the congressman behind that bill joins me, and eagles flying high after the big game. have the fans in philly sunk to a new low. grab some eye black, it's time to play ball. >> it's raining memos, hallelujah ♪ , first memo was dropped friday, containing a description of out of bound fbi flubs, a key question, has been whether