>> dana: we miss having colin allred on, congressman from texas 32. we'll have him on again. but we had breaking news with the attorney general resigning from his position at >> shepard: continuing coverage as the attorney general, jeff sessions has resigned. a replacement is at the ready. the ramifications are many. reporting begins now from capitol hill. justice, the wise house and beyond. first to the man that broke the story, john roberts live on the north lawn. john? >> only by virtual of our terrific producer at the department of justice, jake gibson who said he had information. we got it confirmed. so the president this morning asked for the resignation of jeff sessions. this was before he went in to that sometimes crazy press conference that was scheduled for 11:30 a.m. he knew that there was going to be a resignation letter that was coming over from jeff sessions

at the department of justice at any moment. we have confirmed with sources that matt whitaker and the president has tweeted about this so it's confirmation at the highest source, matt whitaker, the chief of staff to jeff sessions from ohio what, ran in the republican primaries in 2014 for the senate in iowa will now become the acting attorney general. jake gibson also reports that as acting attorney general, the russia investigation would now fall under his purview. the ethics implications have not worked through and may be that whitaker may not be able to take over the investigation. right now, it stays with rod rosenstein and we don't know, by the way, his fate in the future. but it could turn over if it

clears ethics to matt whitaker. the president talked about whitaker some weeks ago. it sounded like sessions was on his way out the door. a press release had been drafted saying that whitaker was going to be the person to replace him. that several people at the justice department talked about the idea that whitaker might replace him. things cooled down for a while. we knew, shep, that jeff sessions was not likely going to be attorney general for long after the mid-term election. we didn't know though that it was only going to be a matter of hours. now, the president at the press conference this morning was asked about changes his cabinet and sessions. he said i don't want to talk about that right now. we'll talk about that in the future. he said he's happy with most of his cabinet and there were other changes likely ahead. he was asked about ryan zinke

and the allegations against the secretary. he said he's looking into that. he doesn't like how it sounds on the surface but he's waiting to find out more details. i believe, shep, this is the first shoe to drop in what is some significant changes in the president's cabinet. mattis has been talked about in terms of a possible departure. hang on to your seats. the ride is just beginning. >> shepard: john roberts, back to you. reporting continues on fox television stations across the nation. catherine herridge live on the hill. catherine? >> thanks. in the last few minutes, we have obtained the resignation letter sent by attorney general jeff sessions to the white house after the president resignation this morning. it reads "at your request i'm submitting my resignation. since the day i was honored to be sworn in as attorney general, i came to work every day to do my duty and serve my country. i've done so to the best of my ability, working to support the

fundamental processes that are the foundation of justice." he continues "most importantly in my time as attorney general, we have restored and upheld the rule of law, a glorious tradition that each of us has the responsibility to safeguard. we have operated with integrity and lawfully and aggressively advanced the policy agenda of this administration. i've been honored to serve as attorney general and worked to implement the law enforcement agenda based on the rule of law to form a central part of your campaign for the presidency. thank you for the opportunity, mr. president." my contacts had reported prior to the mid-term if there was significant increase in the number of senate seats by republicans that we could look for a very swift transition at the head of the justice department after the mid-terms on the basis that the president felt with greater control in the senate, he would have greater likelihood of getting his candidate choice through that process. just adding on to what john

roberts said. this comes also at an important inflection point, if you will. if you think back to around september, the president indicated that he was willing to immediately declassify some of these russia records that house republicans had been moving to make public. they had to do with a surveillance warrant for carter page. then the president did a very abrupt reversal. we heard from him today that news conference that this matter is now under consideration in a very aggressive way. to recap, those reports include 19 pages from a surveillance warrant. that was signed by the deputy attorney general, rod rosenstein as well as interviews with a senior justice department official who became a back channel for the dossier based on e-mails and other records during the 2016 campaign. as well as somebody called exculpatory evidence. this is evidence that should have been provided to the court because it conflicted with the

russia narrative. my contacts said they didn't anticipate and dove tails in i immediate movement with rod rosenstein. they said there was a feeling that mueller was coming to the close of his investigation on russia collusion and that rosenstein would sign off on the findings and any movement would be considered an obstruction of justice case and something that they want to avoid when it coming close to the conclusion. >> shepard: catherine herridge, stay with us. reporting is under way now. our correspondents on capitol hill are working sources there to get reaction from the leaders on capitol hill. we're also getting reporting in from the justice department. it's underway. when it's complete, we'll bring it to you shortly. analysis now. judge andrew napolitano is here for context. big picture, what does this

mean? >> a couple things. the resignation letter was prepared in such haste that it's not even dated. >> i heard you say that. >> i very possible that it's been there for a while. it's unconceivable that lawyers would sign something like this without it being dated. the president may very well have said i want your resignation letter, it's going to be in my top drawer and all publish it when i'm ready and i know. secondly, the fisa application about which katherine has spoken at length, the president said he was going to reveal. he suddenly changed his mind 180 degrees after members of the intelligence committee, british intelligence, israeli intelligence dissuaded him from doing so. this tells me that this is part of some larger picture. what larger picture?

if this is perceived as a series of events look at by the president in order to interfere with the mueller investigation by putting another person in charge of it that may take it over, a person more friendly to donald trump than bob mueller is perceived as being, president trump's own champion in the republicans and the united states senate, senator lindsey graham have said that would be a constitutional crisis. so we have a lot of facts to get our arms around here, shep. i don't know where this is going to go. it's volatile right now. >> shepard: we heard chuck schumer say constitutional crisis. what does that mean? >> that the president is using powers to prevent the rule of law from taking its normal course. that would put reaction on the part of the congress.

the congress, house soon to be controlled by the democrats, but many more republicans have indicated that they would not roll over to an effort to interfere with bob mueller. chief among them is the president's principle ally in the senate, senator lindsey graham who used the exact same phrase four or five months ago that senator schumer used four or five minutes ago, the phrase you just quoted. constitutional crisis. >> shepard: would lawyers and judges call this offense after a mid-term election defeat on the house? >> ask me again. >> shepard: would this be returning to offense? >> yes, this is the height of offense to do something like this within 24 hours of the conclusion of the mid-terms. i must also tell you that though mr. whitaker is now acting attorney general whitaker is a former united states attorney for the southern district of iowa and was confirmed by the senate for that, he was not confirmed by the senate to

become acting attorney general. the statute requires that the human being that runs the department of justice has been confirmed by the senate for a senior leadership position, only three people there, rod rosenstein who is next in line, noel francisco, the person that represents the government before the supreme court and a third person whose name i'm not remembering below mr. francisco. none of those is matt whitaker. there may be an issue with whether or not he's legally qualified to serve as acting attorney general. >> shepard: stay. i'll have more questions in just a second. i have to get to reporting now. first want to go back to catherine herridge quickly. it's not a secret that we've been hearing for quite some time that it's possible this week and possibly this day that we might get something from bob mueller. the timing here might suggest and i'm asking for your reporting on this, that maybe the white house has heard the

same thing. >> what i can say from my own reporting is that we entered what amounted to a blackout period prior to the mid-terms with the special counsel. that's why so much of the reporting went quiet. those are the standard u.s. attorney guidelines that you're not supposed to announce and indictment or investigation, open an investigation 60 days prior to an election. so we've been in this blackout period. i know from my reporting as well that once we pass the mid-term mile post that the flood gates may well open with another indictment, i'm not going into details because that would be speculation and movement with a former fbi deputy director andrew mccabe. his case has been front of a grand jury here in washington d.c. about his role in a media leak in the 2016 campaign. so for a lay person, the brakes are off in terms of announcing pending prosecutions or investigations.

so that's what i can say as fact and not speculation. >> shepard: thanks, catherine herridge. reporting on the timeline. this is actual reporting from events that took place. august the 11th, president trump called jeff sessions scared stiff and missing in action. august 23, president trump says jeff sessions never took control of the justice department. august 25, president trump said jeff sessions doesn't understand what is happening under his command position. september 3, president trump blasted jeff sessions for charges against gop congressmen. september 4, the bob woodward book "fear" alleged that president trump called him a traitor for recusing himself. same day, president trump called sessions a dumb southerner. judge napolitano with analysis. >> as we know, the president has been on a vendetta using language that is typical to him and offensive to people not even

involved with this in order to push back with jeff sessions. it's clear that something happened. either he's had this resignation updated, this updated resignation letter -- >> shepard: sounds like that is possible because i have new reporting just came in. this new reporting just in to fox news channel. john kelly broke the news to jeff sessions, not the president. john kelly made a phone call to jeff sessions this morning and informed him of this. that's new reporting. >> here's the dilemma that you asked me and i referenced senator schumer and senator graham. if they asked for a resignation of jeff sessions, was done for a bona fide governmental purpose because the president didn't like his leadership or in this case absence of leadership at the doj, the request is lawful. if the purpose of asking for the resignation or revealing a resignation already had was to interfere with the bob mueller investigation of him, of the president, you have a potential

additional charge for mueller to examine against the president of the united states called obstruction of justice. >> shepard: more reporting on this. catherine herridge now. catherine? >> just for context, it's important to remind folks at home about the status of the deputy attorney general, rod rosenstein. there was a back and forth leading up to the mid-terms and the voting over whether he would appear before house republicans and he would do an under oath transcribed interview. those terms were never agreed upon and the interview was growing to focus on allegations that the deputy attorney general had discussed recording the president and invoking the 25th and maybe other options to include the appointment of a special counsel or obstruction of justice case as a way to push back against the trump presidency in may of 2017. may of 2017 is like the ides of

march. that's when director comey was fired, this alleged discussion about recording president trump and the immediate appointment of the special counsel, robert mueller. so when you look at the chain of command at the justice department, we have the resignation of the attorney general, jeff sessions, the deputy who is overseeing the russia probe remains under pressure to return to the hill and answer questions under oath about these allegations that he sought to record the president and invoke the 25th. you see this is another set of pressures that are coming to bear on the special counsel case. >> shepard: catherine herridge reporting on the hill. new reporting just in, whitaker to be sworn in today as acting attorney general. john roberts with reporting on that, john. >> yeah, and i've got a little other tangent to go off on here,

shep. of course, what the -- the other big part with the mueller investigation is not just who will run it, as far as we know, rod rosenstein, the deputy attorney general continues to run it. what does any of this mean for the potential of the president doing some sort of interview with the special counsel's office. we do know and i confirmed moments ago with sources familiar with the president's legal strategy that his legal team has prepared a number of written answers to questions that robert mueller wanted answers to. however, no decision has yet been made as to whether or not to submit those answers to mueller and that this idea of getting rid of sessions and moving whitaker in or leaving it with rosenstein doesn't change anything. but things are getting close. i'm told the president's legal team has advised him to wait until after he gets back from the paris trip, which he's going to be leaving on at the end of the week to mark the

commemoration of the 100th anniversary of the end of the great war along with emmanuel macron, to wait until he gets back before the president makes any decision as to whether or not he will take those written answers that they already have and submit them to robert mueller. so everything for the moment is status quo. the president's possession on having an interview with robert mueller submitting the written answers because they haven't ruled out the idea of a sit-down interview. nothing changes as a result of sessions departure today. >> shepard: thanks, john. new reporting now, capitol hill shocked by the sessions news. that from our senior capitol hill producer chad pergram who is with us live. chad? >> the sources i've reached out to expected this to come in some form because there's been so much conjecture about the future of jeff sessions for so long. the fact that it happened and especially happened the day after all of this news about the mid-terms has everybody back on

their heels just a little bit. this morning the senate majority leader mitch mcconnell said he thought the senate would be focusing on confirmations and nominations in the coming months. this could be the first of many. it may be very challenging to confirm a new attorney general. they will have more republican seats. we don't know the total because we still have races out in florida and arizona. but republicans will have additional numbers there, so it should be easier. but keep in mind that they're not going to move somebody through the judiciary committee during the lame duck session. we have thanksgiving in a couple weeks and christmas. this is probably going to be a project for the new congress. also look at how this is going to be framed by the democrats when it comes to investigations. the house minority leader respectively the speaker, nancy pelosi, just held a news conference and talked about how she wanted to work closely with the administration in a bipartisan fashion where possible. the president fired this shot at

democrats earlier today. pelosi said, you know, if they're going to investigate the president, it's with purpose and directed and not going to be scattered shot freelancing. so you wonder if this does dip into the mueller probe or possibly crossing a line of something the president may have done inappropriately, what the house might be from house democrats as they control the majority in the 116th congress next year, shep. >> shepard: chad, thanks. chuck schumer, the leader of the democrats in the senate says the headline, we must protect robert mueller. what about those new leaders in the house? mike emanuel with new reporting on that. mike? >> chuck schumer says he finds the timing of this suspect. he says any attorney general should not be able to interfere with the robert mueller russian probe in any way. schumer was talking about the election shakeout and was asked about this breaking news, was handed to him. here's his reaction from moments

ago. >> protecting mueller and his investigation is paramount. it would create a constitutional crisis if this were a prelude to ending or greatly limiting the mueller investigation. i hope president trump and those he listens to will refrain from that. >> shepard: jeff sessions on capitol hill was a united states senator representing alabama for 20 years. a close colleague with a lot:0 these lawmakers. john cornyn said moments ago, attorney general sessions has selflessly dedicated more than 40 years to serving the people of alabama and the nation as our country's top law enforcement official, he's been integral in fighting the opioid epidemic, and supporting victims. those that know him, his commitment to the rule of law

and deep and abiding concern for our country. so bottom line, a lot of shock on capitol hill. this is somebody that they served with a long time. they did expect there would be a shakeup coming. now the focus is on confirm ago new attorney general with all of these things going on in the world. >> shepard: thanks, mike. catherine herridge in washington now. catherine? >> one of these situations that you get a lot of information from didn't open-sourced media. an interview with whitaker has been flagged to fox news. this is an interview with cnn in july of 2017. according to this report, it was prior to his position as the chief of staff. significantly was flagged in the reporting is that whitaker discussed a way to defang the special counsel by cutting off its budget. it says "so i could see a scenario where jeff sessions is replaced with a recessed appointment and that as the

attorney general -- and that attorney general doesn't fire bob mueller but reduces his budget to so low that his investigation grinds to a halt." these were comments to cnn in july of 2017. this is prior to whitaker becoming chief of staff. in this interview, he's musing about ways to defang the special counsel, robert mueller probe into russian collusion and doing that not by removing senior leadership by using the purse strings. by cutting off the budget. i know through my own reporting that whitaker has been a quiet advocate for the declassification of the russia records and republicans in the house feel strongly that those records indicate that when the justice department and fbi sought and secured a

surveillance warrant for the trump campaign aide in 2017, that the intelligence had not been verified and there were sort of two buckets of information. one that also had exculpatory evidence that conflicted with the russia ordinary ty and they maintain that was not provided to the court. if that is whitaker's position, you can see where he falls in the context of the mueller probe. >> shepard: new reporting now. mitch mcconnell's statement. let's get to chad pergram. >> i'm going to read this statement that just came in from mitch mcconnell. he says "i thank jeff sessions for his service as attorney general throughout his career and he was steadfast in his commitment to the rule of law in our great nation. i wish him well and look forward to working with him in his future endeavors." this is something that mike

emanuel touched on. jeff sessions was a creature of the united states senate. he was first elected in 1996. a lot of people here on capitol hill, especially those that served with him, think he got a raw deal. hi left a very safe senate seat from alabama for this job. the president gave him the business a lot of times and now he's out the door. >> shepard: chad pergram, thanks. there's breaking news now on fox news channel. fox news television stations across the america. the swearing in has happened. catherine herridge on the hill. catherine? >> we're getting more fidelity on the details here. our justice department sources are reporting that because matt whitaker had been sworn in for another justice department position, there was not the formality to do a second swearing in and now considered the acting attorney general, shep. so i think if you step back and for folks just joining us at

home, you need to see that we've had a series of events that i would argue are very organized and very deliberate and even some would say choreographed from the white house chief of staff, john kelly to the attorney general jeff sessions this morning. the president was requesting his resignation. this is absolutely within the president's authority. he can hire and fire whomever he chooses. and then what appears to be the hastily drafted letter by the attorney general submitting his resignation and highlights accomplishments of the department under his tenure, crime, gangs, a strong immigration enforcement. these were the central tenants of a president trumpsy. it's a tick tok of events and how quickly it happened and how deliberate and organized this happened. this appears to be a decision that was taken well-before this

morning, shep. >> shepard: thanks, catherine herridge. more reporting in a moment. hiring and firing catherine herridge says, judge napolitano. >> the president can fire an attorney general if for almost any reason. he cannot fire him if the purpose is to shake up the leadership of the justice department in order to interfere with a criminal investigation that the president wants to interfere with. now, the person who is now running the justice department told cnn as catherine just quoted in july of this summer, the best way to take care of mueller is to dry up his funds. if that's the reason for which mr. whitaker is now the acting attorney general of the united states, mr. whitaker himself could be in the cross hairs of bob mueller. >> shepard: bigger picture is protecting bob mueller something that the democrats can get done right away or is this avalanche coming down the mountain so quickly and by design possibly? >> i don't know that it can be

done right away without any republican support. our colleague chris stirewalt says there's numerous republicans in the senate that will not accept this. jeff flake is still in the senate. senator sasse is there. lindsey graham himself, the president's champion on the floor of the senate said an effort to interfere with robert mueller could provoke a crisis. it's beginning to appear this was an orchestrated effort to shake up the justice department with such voracity that the shaking upreaches bob mueller. >> shepard: no reporting in from eric holder. anyone that attempts to interfere or obstruct the mueller inquiry must be held accountable. this is a red line. we're a nation of laws and norms, not subject to the self-interested actions of one man. chad pergram with more reporting

on this. chad? >> well, i talked to some republican sources that told me for a long time that they did not think that president trump would try to fire the deputy attorney general, rod rosenstein. the question is, is getting rid of jeff sessions sort of a stand-in for that? that's the problem. also, i want to read to you -- we just got a tweet from jerry nather. we've been hearing a lot of rattling in the last 20 hours about what democrats might do when it comes to investigations. and he says "americans must have answers immediately as to the reasoning behind the president removing jeff sessions. why is the president making this change? who has authority over the special counsel investigation? we'll be holding people accountable." here we are hours after it's clear that democrats will control the house of representatives. you look have democrats with cause in this case ramping up

their heat on president trump over this firing of attorney general jeff sessions, shep. >> shepard: chad pergram. as our reporting continues. judge napolitano, your thoughts. >> if -- i'll say again. if the firing of -- >> shepard: how do you prove one way or another? >> you infer from the words that people use from the timing they engaged in and from the behavior that surrounds it. if the firing was done because the president was disenchanted with his leadership -- >> shepard: who decides that? >> whoever challenges this. could be challenged in the political forum, which would mean republicans and democrats in the united states senate. if the firing was done in order to put someone in charge of the doj who is adverse to the existence of the mueller investigation and wants to dry it up by the shrinking its budget, that would be an improper purpose as articulated in the tweet that you just read

from former attorney general eric holder and should be investigated. >> shepard: the timing on the heels of the lost of the investigative arm of the house. >> again, it's going to depend. when did jeff sessions sign that updated letter. did he sign it in august when the president began his rampage against him and sitting in the president's desk or john kelly's desk or did he sign it this morning and forgot to put a date on it. it would depend on the machinations in order to bring about the abrupt and pronounced change in leadership of the doj that happened in the past two hours. >> shepard: political said acting attorney general matt whitaker will take over for jeff sessions. >> this is person that is taking over that said by shrinking the budget.

beginning to look nefarious just in. >> shepard: news just in. chuck schumer of new york, the leader, is now saying that whitaker should recuse himself. >> i'm going to guess the reason chuck schumer said that is because of the statement that mr. whitaker made to cnn, which catherine called it an about in which you and i have been talking. if he is of the view that bob mueller's investigation ought not to exist, he cannot interfere with it. even if he is the acting attorney general. he cannot interfere with it. the legal machinery has begun to roll and can't be stopped without there being the appearance of some improper purpose for stopping it. >> shepard: thanks, judge. to bret baier host of "special report." bret, your thoughts. >> this is a big moment. you heard the president being asked about it. he deferred saying there may be

changes on the way. no one is surprised that sessions is one of the first. what they're surprised at, that the acting attorney general is mat whitaker and that if true, he's overseeing the mueller probe. i don't know that we have that definiti definitively. i know it's out there in different forms. that is the significant moment. you have jerry nadler that will take a chairmanship saying they need answers right now as to the choice of matt whitaker. what is happening with deputy attorney general rosenstein and where is his role here? as this unfolds, shep, we're going to get more information from the justice department. but the whitaker appointment is what is roiling capitol hill right now. >> shepard: and chad pergram has more with chuck schumer. >> it's about the recusal question and just how far is

chuck schumer willing to push. here's another issue. one of the reasons why republicans lost control of the house of representatives, there were questions about votes on tax reform, healthcare and just being a bad map for republicans because the retirement. because also because of in certain quarters, the districts that were carried by hillary clinton, they didn't view their republican member as pushing back sufficiently about president trump and being a check on capitol hill about his administration. it's these perceived is what roiled swing voters and one of the reasons that the house flipped. this is something that democrats said we're going to be a check, we're going to work on this and here they're going to have this opportunity right out of the block. that issue of the recusal is going to loom large. we don't know enough right now in the early going. don't forget as i said a few minutes ago on the air, a lot of these republican senators and

democratic senators that served with jeff sessions felt he got a raw deal. they are going to work to protect jeff sessions. they're also going to work to protect bob mueller. there's bipartisan pieces of legislation out there which mitch mcconnell has refused to call i'm. tom tillis has a bill and cory booker has a bill. those pieces of legislation have not come up. one wonders if that conversation might get a little more ripe here even in the lame duck session in the next couple weeks as an effort to protect robert mueller as they investigate what about jeff sessions. >> shepard: new reporting. chuck schumer said the funding and imposing limitations on the mueller investigation, mr. whitaker should recuse himself for the duration of his time as acting attorney general.

more new reporting. i've just been informed that rod rosenstein is on his way to the white house. we're informed that he's on his way to the white house for a previously scheduled meeting. bret baier for context from washington. bret, the timing last night, he lost the house of representatives, the investigative arm in the house. this morning he holds what could be described as nothing less than at least an extraordinary news conference from the east room of the white house no less and moments later, these shoes begin to fall. >> yes. we don't know exactly, shep, how that came out, how long to the judge's point that letter has been ready to deploy. did he feel like the news conference wasn't the focus he had and this is a development that takes a lot of oxygen in the room. the real question now as democrats take control of the house, that doesn't happen until january and their oversight

capacity. do republicans step up and say and protect the oversight of the mueller investigation? what is the extent to which republicans on the senate side or the house side come out with statements saying that either one, whitaker like schumer says should recuse himself or two, there needs to be some protection that the administration is not going to stop the mueller probe. >> shepard: judge? >> to follow up on bret. the mueller investigation is of the president of the united states. if the president intentionally put someone in charge of the justice department that was adverse to the existence of the mueller investigation and plans to do away with it or shrink it out of existence, dry it up by denying it the funds it needs to operate, it begins to look more and more apparent as though the times and the mechanism here was intended to influence the investigation. if the purpose of the influence was to stop mueller from

knocking on whatever door he's knocking on, it could very well be obstruction of justice which generates another investigation. >> shepard: are we expecting something else to happen today, tomorrow, sometime this week or very soon as relates to the mueller investigation? >> we don't know a timeline. when you talk to people in the know and obviously we all know that the mueller folks have been pretty tight on releasing information, but there has been activity. a lot of focus on roger stone. there's been interviews. we've heard of grand jury testimony. but it wasn't -- didn't sound like it was imminent. but for the mueller probe, we don't know until it happens. i know on capitol hill, they expected after the mid-term that some action would likely start to happen one way or another. the question then becomes, if there's not another indictment, if there are more indictments,

that process goes through the oversight at the doj. as the acting attorney general, whitaker could sit on that and not even forward it over to congress if he wanted to. >> shepard: a little more context. it was the year 2016 that whitaker wrote an opposing view editorial in "usa today" newspaper that was titled and i quote "i would indict hillary clinton, opposing view and cites statutes." catherine herridge with context on why whitaker would be suitable for the president. >> this is not a household name for most folks. my understanding from a contact who is familiar with whitaker and close to the white house is that he's well-liked by the president and perhaps one of his strongest character traits is that he's seen by the president and others as an outsider.

someone that hasn't come up through the system, fbi or doj with robert mueller, who was fbi director for 12 years, deputy attorney general rod rosenstein or christopher wray. he's not part of that generation. didn't come up with them and is soon as somewhat more objective and an outsider. a point we discussed earlier, he has behind the scenes been a quiet advocate for the declassification of these russia records. the reason i keep saying that, what we heard from the president today, the first time that he talked about the russia records and number 2, he indicated that he was going to move as quickly as possible to make them public. >> shepard: thanks, catherine. new reporting and context on whitaker. trace gallagher with more. >> piggybacking on what you talked about, there were report going back to september saying the white house chief of staff john kelly cath matthew whitaker

saying if jeff sessions left, whitaker would step up. that's when rod rosenstein's ten jury was in limbo because of the report that he wore a require about president trump. keep that in mind. we know whitaker played football at the university of iowa. he ran for treasurer but lost. in 2014, he ran for the republican nomination for an iowa u.s. senate seat. as for the conversation you're having now with the judge, it's interesting that before he joined jeff sessions, whitaker was critical of democrats. he wrote an op-ed for the hill demanding more scrutiny between democratic officials and ukrainian officials. he played down the now infamous trump tower meeting involving donald trump jr. and a kremlin lawyer that promised to have dirt on hillary clinton. as for what you talked about, the op-ed was written in "usa today" in 2016. it was an opposing op-ed to

james comey saying that he would in fact or the recent fbi director saying that he would not indict hillary clinton and whitaker wrote the opposing and said a reasonable prosecutor may ask if on numerous occasions an unknown state department employee had taken top secret information from a secured system, e-mailed that information on a g mail a couldn't and stored it on a personal server for years, would that individual be prosecuted. he concluded saying i believe they would. that's the op-ed 2016 u.s.a. today. >> shepard: new reporting now, mark warner quoting "no one is above the law and any effort to interfere with a special counsel's investigation would be a gross abuse of power by the president. while the president may have the authority to replace the attorney general, this must not be a step to impede, obstruct or

end the mueller investigation. senators from both parties have repeatedly affirmed their support for robert mueller's investigation. every one of them should speak out now and deliver a clear message to the president that the special counsel's investigation must continue without interference. bret baier in washington. bret? >> background from doj officials, the acting attorney general is in charge of all matters under the purview of the department of justice. matt whitaker will oversee the russia probe. we shouldn't go to the conclusion because of what he's written in the past that definitively he's about bringing it down but put it in context. because rod rosenstein is making his way to the white house for a meeting is interesting. they say it was prescheduled. but on a day like this, you wonder about that. he recently -- remember, there were rumors that he was going to

be fired and that the president cocoasi cozied up to him and said rod is a good guy. he had many questions about his oversight after jeff sessions recused himself. the acting attorney general never recused himself. so as acting attorney general, he oversees the mueller probe. the president has said publicly that he is allowed, he said, the mueller probe to go forward and wants to play it out. but he has already said he could end it at any time. >> shepard: new statement, the democrat of connecticut rick blumenthal, this is a break the glass moment. replacing the attorney general with a staffer is highlier regular and unacceptable. protecting the special counsel investigation is more urgent than ever. he goes on, my republican colleagues must rise to the challenge and show political backbone by demanding that mr. whitaker recuse himself from oversight of the special

counsel's investigation. new paragraph. i will be introducing legislation to ensure that congress and the american people see the results of special counsel mueller's work and i implore my colleagues to unite behind efforts that the special counsel should continue this work without interference. any attempt to limit his resources resources or the scope is up acceptable. the world and history are watching. judge? >> so you recuse yourself if you're interested in the outcome or if you're not a believe never the thoroughness or the fairness of the prosecution. he's in both of those categories. he said publicly i would shrunk mueller out of existence -- mueller spends a lot of money. he has many fbi agents and prosecutors and clerks. you cut off the money, you're

interfering. that's what whitaker said. the other reason is he hasn't been confirmed by the senator which was just pointed out. >> shepard: new reporting, rod rosenstein on his way to the white house. john roberts on the north lawn. john? >> and we know that the deputy attorney general rod rosenstein is on his way over to the white house for a previously scheduled meeting. he comes here a number of times during the week, shep. so in the past, it has been read into that somebody may be up in terms of rosenstein. there was a time not too long ago when rosenstein came here to the white house and told colleagues on his way out the door from the department of justice that he expected to be fired. he had a meeting with chief of staff john kelly when he arrived at the white house at which we're told that kelly told him that he wouldn't be fired. for all we know right now, shep,

and again, the reporting is still early on this, but the white house is making no moves to try to have any kind of an impact on the mueller investigation. the president said in the press conference earlier today that he could shut it down if he wanted to but he doesn't really want to. in fact, they really want to get it over with. making any kind of change to the leadership of the mueller investigation may actually just slow things down. so the president may leave rosenstein in charge, although whitaker could be actually overseeing the entire investigation. so we're trying to sort this out. the other thing out there, shep, is the president's potential interview with robert mueller. no decision has been made on whether or not the president's attorneys and the president will submit the series of written answers to the mueller questions to the special counsel's office. we likely won't have a decision

on that until after the president gets back from the world war i commemoration in paris. >> shepard: john roberts reporting at the live house, a live look at the department of justice. we're waiting for the attorney general, jeff sessions and departing attorney general jeff sessions to depart for the day leaving the department of justice. the speed of events is note worthy. that extraordinary news conference from the east room where the president clearly made the turn from fighting with the democrats, which he had been doing, now they have take -- shifts the focus now to the media. even for the president, a testy news conference. the likes of which the east room has never hosted, never in history. since then the immediate resignation of the attorney general. the immediate announcement of a replacement and interim replacement, the almost immediate swearing in of that

replacement. the departure here, the arrival of rod rosenstein to john bussey now, associate ed to from the wall street journal. this is like a roller coaster. >> it's moving. we're about to see what happens to the mueller investigation by seeing what happens to rod rosenstein. so part of this is animus between the president and sessions. this has been a dead man walking, a dead cabinet member walking now over a year. the president has not wanted him in that job since he recused himself. but from the public's standpoint, the issue is not kind of the play by play of the relationship between these two men. it's what happens to the mueller investigation. this has been about as much of a foretold story as there can be out there for anybody in washington. we knew this was coming, probably after the mid-terms. so what has mueller been doing to prepare for this? does he have indictments already underway? does he have a report prepared

to submit? are there additional ways in which he can kind of project his findings regardless of who is running the department of justice? we'll see over the next couple days. they're going to have to confirm a new attorney general. that will take time. that gives mueller sort of a broader spectrum in which to act if he need to precipitously. >> shepard: since the last hour, it is not lost on anyone that for two months the rod rosenstein investigation, the bob mueller investigation i should say has been quiet. because there's sort of a standing principle that you don't talk about such things in the middle of national elections. it been quiet does not mean it's not been active. we're led to believe it's anything but inactive. along the way, bob mueller wanting to move this as much as anyone else. i must tell you candidly because this is true for every journalist that covers this stuff, we've all been told over and over again to expect

something this week. we've been led to believe though, i don't know how -- led to believe that we could get something as early as today. it's not like the white house wouldn't hear this. you wonder if the two trains are coming down the track ready for a collision course, the likes of which we haven't seen in modern history. >> the decisions that the personing running the department of justice has to make, whether it's the attorney general, the acting attorney general, the deputy attorney general are so delicate, so touched pro foundly, the system of justice in the united states that the statute exists to prevent a political hack from having that position and requires the scrutiny of the senate judiciary committee, the ethics people and the vote of the senate before a person can have that job, i do not believe mr. whitaker has been through that procedure. >> shepard: extraordinary split screen if you're watching. if you're listening on sirius xm, what our viewers are seeing

is the department of justice. we're expecting the attorney general, jeff sessions who just resigned to walk out and for the last time. on the right-hand side of the screen, it's outside the white house where we're expecting rod rosenstein, the acting attorney general, overseeing the mueller investigation to come in to the white house for what is billed as an, and i quote a previously scheduled meeting. there's no timing in a vacuum. these two events to take place possibly simultaneously. i must say at the same time, the dow is up more than 2%. whatever happened last night didn't bother anybody on wall street. that is clear. i just wonder what the next steps are going to be and how leaders on capitol hill, john bussey, are going to react. there's a clear effort to get ahead of things here. >> lindsey graham, that was against doing anything that got in the way of the mueller

investigation said hey, i'm looking forward to the process by which we find a new attorney general. that's not saying he's going to rush the issue. it's interesting. the president has made an argument that this investigation has dragged on too long. something needs to be done. somebody need to call it to an end. it a hoax in his mind. >> shepard: the president's words. >> in his words. that is just inaccurate from the standpoint of these types of investigations over previous presidencies. it takes time to do these. if anything, this has been a pretty efficient investigation -- >> shepard: with historical -- with a nod to history it has been. >> the whitewater investigation that went on for years. mueller has gotten guilty pleas and diamonds. we don't know during a silent period, which has extended the entire period mueller has been undertaking this investigation, there's not been leaks from his office. we don't know how much further

down the road he's gone. maybe he's found there's nothing else to pursue. maybe he's pursuing vigorously members of the family of the president. we don't know. >> shepard: if judge napolitano, if you look across the landscape at the white house, look at individual people that reside there, work there, maybe who were family members, maybe who were closer advisers, who right now is of the belief that i'm next? >> from sources that have been in touch with all of us, we believe the investigation is not limited to the president of the united states, that it also goes to his son, donald jr. because of the trump tower meeting with the russians and his son-in-law, jared kushner. >> eric tucker is a reporter for the justice department, for the associated press and has been all over this story for as many months that i can count back. eric, your thoughts and what it may mean. >> it's really significant obviously, shep, that this is

happening right after the mid-term election. the president has sort of floated the idea that this could happen and now we're seeing it. what is really interesting, we're in a sensitive stage of the investigation, of course, where there's a lot of unanswered questions, there's critical pivotal moments ahead up to and including whether the president will sit with an interview for mueller. there's new questions about who is is over seeing the investigation. >> shepard: it sounds like the person that will be overseeing this investigation is matthew whitaker. >> exactly, shep. one thing that is interesting to note about mr. whitaker, in his prior role as somebody as a television commentator, he was fairly critical or skeptical about the powers and scope of the mueller investigation. he had sort of suggested publicly that trump was within his rights to be a little bit unhappy if the investigation

stretch into his finances. we'll see what happens in term of the oversight going forward. mr. whitaker has signalled a degree of skepticism before entering the justice department. >> shepard: and democrats have signals that they don't believe he's right and proper. >> that's right. we have a call from chuck schumer, the top senate democrat that whitaker should recuse himself. there's not a ground that has been publicly explained. but i anticipate more of that going forward. >> shepard: who is concerned most at this moment in the building behind you, if anyone? >> that is a good question. you know, i sort of don't know what happens next. i'm not sure that anybody at the white house or the justice department really understands sort of the next big step. when you think of the way the justice department is structured, the deputy attorney general is the person that handles day-to-day affairs and is a critical decision maker. rod rosenstein has not departed that building, so i imagine a

lot of ways that authority will not go away immediately. >> shepard: adam schiff is the man that will be heading up investigations on the democratic side when they take over in the house of representatives. he's just issued this statement. new reporting. president trump just removed jeff sessions. he wants an attorney general to serve his interests, not the public. mueller's investigation and the independence of the department of justice must be protected. whitaker and any nominee must commit to doing both. we will protect the rule of law. new reporting. chad pergram on the hill. chad? >> yeah, i think we now know what the lame duck session is going to be about in the early days of the 116th congress as democrats take control. we thought it might be a little bit about trying to keep the government open and the border wall. it's probably now going to be about the issue with robert mueller and whether or not they should move legislation to protect him. pressure will be enormous on

house speaker paul ryan, on mitch mcconnell and certainly on mitch mcconnell who is not yet moved legislation to that effect. if they don't, house democrats you can bet your bottom dollar will try to move that when they get the reins of power in the new congress. keep in mind, you'll have leadership elections on both sides of the aisle. it will be interested on the democratic side. we have a statement from the house minority whip, steny hoyer who is running for majority leader now, to see who comes out the strongest. they say they will put their feet to the fire. you have moderate democrats that won in swing districts in the house of representatives. you have liberal members that won. the ocasio cortezes that won in new york. they want to put the screws to the trump administration but just how far are the democrats willing to go next year? >> chad pergram with new reporting on the hill. chad, thanks. before we wrap up the hour, bret baier in washington. final thoughts? >> just some perspective here. nobody is surprised by the fact

that jeff sessions is fired saying i submit my resignation at your request. he received essentially the rex tillerson tweet from the president announcing his replacements. and the surprise of matt whitaker. traditionally this day is a news day. don rumsfeld was fired the day after the mid-terms 2006. the heart of the iraq war. a lot of stuff happens on the wednesday after election day. this will be a big news story. >> shepard: yes, on this day. bret baier, see you tonight at 6:00 eastern and 5:00 central on "special report." judge napolitano, this is not the only thing -- >> i don't know decker, a lawyer, writes to remind that most if not all of the investigations of the personal finances of president trump and the trump organization has been

handed by mueller to the united states attorney for the seventh district of new york. who is his new boss? mr. whitaker. >> shepard: judge, thank you. thank you to the reporting of trace gallagher, john roberts, mike emanuel, catherine herridge, judge napolitano and john bussey and bret baier in washington. what a day. it's a huge day on wall street. the dow is taken an enormous climb. up 551 points. the outcome of the mid-term elections was good for the stock marked in general mostly because there were no big surprises. especially good for the healthcare industry and several other companies. this from associated press. health insurers rose sharply today as investors anticipated that any prospects of appealing obamacare which expanded health insurance to millions of americans diminished greatly now that democrats control the house of representatives. marijuana companies soared after several states including michigan voted to legalize pot.

oil and gas companies benefitted from a defeat of a ballot that might have restricted drilling and a dialysis company rocketed after california voters rejected a measure that would have limited that. the news continues. "your world" with neil cavuto continues now. >> neil: so much we don't know. this much we do. if the market was worried about a constitutional crisis depending on who you're listening to with the media fallout reports of jeff sessions being forced out of his job as the attorney general of the united states and waiting to hear from the deputy attorney general who has a scheduled visit any second now at the white house, it has a funny way of showing it. stocks racing today on relief that the mid terms are over and some closure on this predictable changeover and personnel of the white house is nothing out of the historical norm, or is it? so much that we went piece together. if they're worried about that on wall street, that i have a funny