and that's how fox reports on this saturday, september 7th. i'm jon scott. thanks for joining us this evening. ♪ ♪ hello, america. tonight's show was originally aired on july 28th but it was preempted as a result of the mass murder in gilroy. it's an important show. talking about the mueller report and russia. i hope you'll watch it. here it goes.

mark: what was the criminal allegation? >> there was no criminal allegation. and the only criminal allegation, as far as i know, had to do with the activities of the russians. and certainly the justice department was not convicted as to that. the regulation says that when there is a criminal investigation as to which there's a conflict in the department of some other overriding public reason, then you may -- then the attorney general or whoever is acting may appoint a special counsel. the letter of appointment for robert mueller referred to the report in front of the house committee in march of 2016. that investigation was not a criminal investigation. it was a counter intelligence investigation. national security investigation. so there was no criminal predicate for appointment of a special counsel.

it's that fun fundamentally fla. mark: soso you both agree there shouldn't have been a special counsel in the first place and yet we have one. were you concerned about his testimony? >> i was concerned by his testimony. i was concerned by the fact that so much of the report seemed to be foreign to him, at least he was not familiar with it. and i've since reflected the views of a lot of people who were watching and that was he was not familiar with the report because it looked like someone else had written it. and indeed much of the report itself suffered, in my opinion, a number of flaws as well. the whole idea of laying out what you might call a prosecutor's brief, not an evidentiary brief but a prosecutor's brief of reasons why someone should have been accused of doing something wrong and yet very short on evidence, very short on facts and certainly much too long particularly in what they call

volume 2 which was directly contrary actually to what the law actually says in terms of what obstruction of justice really is. this isn't bribing of witnesses, this isn't destroying documents. this isn't the normal thing you would talk about when you talk about obstruction of justice. the whole idea of that much material of allegations really without facts was made this flawed report. mark: the report itself wasn't supposed to be 500 pages, was it, and turned over to an attorney general who testified he was going to give it to congress. and then the prosecutors' office knew the demeanor democrats wern control. i read both volumes of the report. and volume 2 reads like the longest op-ed. what you make of this? >> i of course agree with

everything that ed said. and i would add that when it was a prosecutor's brief, it's interestingly a prosecutor's brief for impeachment, not a prosecutor's brief for prosecution. mark: let's talk about this for a second. you touched on this. obstruction of justice. every document that the prosecutors wanted, they got. every witness that the prosecutors wanted, they got. including the president's own white house counsel, 30 hours he testified. no assertion of attorney-client privilege, no assertion of executive privilege, no assertion of any privilege. he doesn't deny them one penny in resources. he never interferes with this investigation. hef never takes steps as president of the united states to do anything. and yet the report and the democrats focus on mcgahn, his

white house counsel who said, and the president denies this, but who said, yeah, the president contacted me about, you know, getting rid of mueller. is this obstruction of justice? >> certainly not. as a matter of fact, when you saw some of the things that were happening in the special prosecutor's -- special counsel's office at that time, the fact that the overwhelming majority of the lawyers that had been hired were democrats, many of them not just ordinary voting democrats but democrats who contributed large amounts of money to the democrat party, and particularly to the -- to mr. trump's opponent during the election. those kinds of things. the fact that many other things, the way in which they conducted some of the activities there, including bringing charges in the course of their process to people totally unrelated to anything having to do with russia or having to do with the president. some cases that have been many

years before in which they were -- it looked like they were charging people with crimes simply to get them in a position that they could then be bludgeoned into saying something negative about the president. so the whole thing to me, if i were the president, i would be really appalled that that kind of conduct was being carried out under the department of justice that was imen ultimately respone to me . mark: the report cites three obstruction statutes. they don't apply to this case. then you look at the supreme court decision in 2005 involving arthur anderson which was andrew wiseman's case. >> which was an obstruction case. mark: wit as perfunctory opinion. eight pages long if you don't include the title page and signature page. 9-0 written by chief justice rind quis.

yoamong the three elements is corrupt intent. you're a former judge. you see what the president did in terms of providing information to the prosecutor. he felt the prosecutor was conflicted. let's say he fired mueller. without that necessarily mean the prosecution ends? >> no, of course not. the office would continue and the investigation would continue. also if you look at the kind of spasmodic way, almost -- i mean, certainly not a methodical way that the president went about expressing his views about getting rid of mueller and ordering people or asking people to take steps to do that at various points, if in fact he did, on a completely disorganized way. it looks like somebody who was upset, lashing out, and talking

the way people talk about, i'd love to get rid of him or her or whatever. that's very different from actually undertaking, in a systemic methodical way, obstructing an investigation. and certainly you wouldn't do it by firing the figure head. mark: this was a case, i think, that the president knew he had had nothing do with russia, he was being falsely accused every day stean media was picking this up not to report the news but rat to get at the president himself personally. and i think he did this probably out of frustration as an innocent person. >> when you talk about an obstruction case, as a prosecutor, you think about whether you can put this in front of a jury and present evidence beyond a reasonable doubt that on instruction was going on. that i think was part of the point that the attorney general was making when he discussed the

report and discussed his decision not to bring an obstruction case. there's a world of difference between taking isolated statements out of context and saying, well, you could co conse this as an active instruction or an incipient act of obstruction and evaluate an entire situation. mark: i want to dig in on this one step further, here. because you hear in the media and you hear on the left and the democrats say but for these two opinions from the office of legal counsel that a say you can't indict a sitting president, they would have indicted this president. they tried to get mueller to say that, he wouldn't say it. but they still say it. i have a different take on this. if they really thought that they had a case for obstruction, putting aside those memos, that 500-page document, which is not

really a legal document, it's a big document with the kitchen sink e thrown in there, nothing would have topped them from saying mr. attorney general, you waive the restrictions, and we recommend indictment. they didn't do that and i think that's very interesting. what do you think? snr one of the reasons they didn't do it is because there was no evidence to support that kind of a recommendation. and i think that mueller was -- had enough control, if you will, to make sure that didn't happen. i have no doubt that there was some people on that staffe staft had a bias against the president and would have done it if they felt there was any basis in which they could or where mueller felt that they would legitimately do that. and it's clear that they couldn't do that. and ultimately in the second day of his testimony he said that and made it very clear, that there was not a basis -- they did not make a determination one way or the other on guilt or

innocence. in other words they didn't do what they had been asked to do. but i think it's because there was a conflict if not full-wrongheadedness on the staff. >> it accounts nor not exonerated formulation. it's certainly not a legal standard. it's the only time, as i thought was brought out in the hearing, the only time that's ever been used as a standard. prosecutors don't exonerate people. you want exoneration, you go to church. you don't get exoneration in a court of law. at best you get found not guilty. not exonerated. and the only way to account for introducing that really lawless standard is that there was pulling on both sides. i can't figure it out otherwise. mark: when they didn't have the evidence and didn't find evidence or announce evidence to support an indictment, essentially the exoneration, if you want to call it that, came

by process of law. because if a person is not dieted and proved guilty beyond a reasonable doubt, they are as innocent as a newborn babe. so they really did make a decision. let's stop dancing around. they made a decision, you either pull the trigger or you don't. or go to the attorney general and say we want to pull the trigger or you don't. but they didn't. they did something much worse. when we come back i want to pursue that with you. most nights you can watch me on levin today. go to blazetv/mark to sign up or give us a call, 844-levin-tv. and don't forget, "the new york times" best seller list. they hate it. you'll love it. we'll be right back. ♪ ♪ hmm. exactly.

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now you can share it between lines. mix with unlimited, and switch it up at anytime so you only pay for what you need. it's a different kind of wireless network designed to save you money. save up to $400 a year on your wireless bill. plus get $250 back when you buy a new samsung note. click, call or visit a store today. mark: attorneys general. for a lot of people, including me, this report is written as an impeefment report, which is really an abuse of power for prosecutors to do that sort of thing. and i think one day we'll need to circle back and really take a look at this.

that said, bad report, anything you've seen so far -- they keep talking about impeachment and they're talking about it like apple pie. will they impeach, will they not impeach. as the president committed any impeachable offenses? >> i don't believe he has in any way committed an impeachable offense. mark: high crimes and misdemeanors? >> we have to understand what it is up. the three branches are separate and equal branches. the president couldn't be subject to congress in the accepts of them being able to push him around. he has to be able to be independent of them and carry out his duties as the constitution sets forlt. buforth.but at the same time thy needed a safety valve in case you have a president that goes wild and does something against the american people.

and that's why they have the clause. but it's not to be just like any other piece of legislation. it is a safety valve and that's why the considerable process that you have to go through -- and that is the house bringing articles of impeachment and then a trial in the senate requiring two-thirds and where the chief justice of the united states actually presides. this is not, as you point out, an ordinary thing, like voting on another piece of legislation. this is a very important thing and i think that there's no question about it, there is no basis for impeachment whatsoever in anything that's in the so-called mueller report nor anything that's come out in terms of what the president has done or hasn't done. >> he didn't just say you can impeach a president op you have

a separate vote, two-thirds of the majority. you the separate person conducting the trial and the chief justice sitting. he didn't treat it as just something to do if you don't like a president or you don't agree with the election or maybe he said something you don't like or something like that. this was more than purely a political act. to me if it was purely a political act, the bar wouldn't be set so high and you wouldn't need such a major trial event in the senate. is that right? >> president ford was famous or infamous for saying an imeachable offense is whatever the house of representatives says it is. that's a half truth. yes, all it takes is a majority vote in the house. but as was pointed out in ed's discussion, this is a much more elaborate topic and it's a process designed to make sure that there is a feeling in the country, support in the country of really a ground swell of opinion in the country that

supports removal of a president. that's what it's about. and by that standard we don't have it. mark: is that what this hearing was about, where they were trying to lay the predicate for impeachment? they've barely hidden their feelings in this regard, in particular the chairman nadler, keeps going on about the crimes the president has committed. aye never heard of a politician who runs the committee, the judge, the jury, sentencing. and it turns out that the prosecutors didn't even draw that conclusion. so is this simply trying to laid a predicate for an impeachment case? >> well, i try not to read other people's minds. and if i did read other people's minds, i certainly wouldn't start with his. but i can't think of any other reason for doing what was done and the way that it was done. there's no other explanation for

it. mark: they repeatedly lied about what the situation was. they repeatedly gave their impression of what was in the report, not what was in the report itself, and they certainly tried to mislead the public into believing there was some basis ofthere's no questioe hearing itself, along with the report and their use of the report was designed to try to set the stage for impeachment when there was absolutely no basis for it. it was one of the most despicable acts in my opinion that embarrassed the congress of the united states from what they were doing with what i can think of only as a plot to get rid of a president they didn't like who was elected by the people of the united states. when we come back i want to ask you about this plot, because you have the prosecutor's office, you have partisan prosecutors, we know that by their own conduct. one represented hillary clinton, one was at the hillary clinton victory party of which there was none. others given donations.

there is a regulation at the department of justice about an appearance of a conflict of interest. there was an appearance of a conflict of interest, not a fact of a conflict of interest. this investigation, this entire front half of what took place mr. mueller said was not in his purview. the entire front half of the -- now he knew how to go to rosenstein to get his mandate expanded into manafort's taxes or whatever it was. but in this case they didn't. when we come back i want to ask you why. we'll be right back. ♪ ♪

live from america's news headquarters. a massive relief effort under way in the bahamas after a week after the island was devastated by hurricane dorian. the number of dead has risen to 43. the government says thousands are still missing and that 76,000 people are believed to be homes and in need of assistance. that's about 20% of the island nation's entire population. prodemocracy demonstrations in hong kong continue for a 14th straight weekend. clashes breaking out between

protesters and security forces earlier today. even after hong kong's government pulled the controversial extradition bill that sparked the initial demonstration. protesters are calling for fundamental political reforms. i'm jon scott. now back to "life, liberty & levin." mark: welcome back, america. this is just a reminder. this program originally aired on july 28th but was preempted as a result of the killings in gilroy, california. i told you it was an important show. keep watching. there's more important information to come. enjoy. let's take a look at the areas where mr. mueller said are not in his purview. anything related to the hillary clinton campaign and the dnc, the funding of fusion gps, which was used as a go-to to pay for

christopher steele. he was out of the purview. christopher steele goes to the russians and other to get information, a fancy name, dossier. that wasn't in his purview. the fisa applications which misled the court. that wasn't in his purview. the cane's coups attempt under the 25th amendment. not in his purview. fbi placing spies in the trump campaign. that's not in his purview. the obama administration unmasking 0 american citizens, that wasn't in his purview. and the obama administration's failure to do anything effective to stop the russians from interfering in our campaign and the two people they haven't interviewed are barack obama and joe biden. so what kind of investigation sit that sets aside all these elements that clearly are relevant? the attorney general, we've got to get to the bottom of this too. i'll go to you first, mike. >> all of that is, in my mind,

an excellent reason for watching what happens when an investigation that's being conducted under the direction of john durham does its work. because the current attorney general has said that he's interested in getting to the bottom of how all of this got started. and the way it got started is with the steps that you've listed. take the fisa application -- that application was for a warrant on carter page. carter page is a u.s. citizen. you don't get a warrant on a u.s. citizen under fisa unless you can show, number one, that he's an agent of a foreign power. but number two you have to show as to a u.s. citizen, that there's the one person who has not been indicted by anybody. carter page. what was the basis for getting a warrant that named him. that's only -- that only teases

out one problematic area. and the fusion gps, of course, that you pointed out was funded for the purpose of generating research. mark: let me ask you a question. you're a former federal judge. these are federal district judges who sit on the fisa courts. appointed by the chief justice of the united states. i'm curious about this. if you had been one of those judges and you learned later about the applications, that they were misleading, wouldn't you want to call those parties back and have at least an evidentiary hearing to find out what took place? >> unfortunately i don't think the fisa court is set up that way. understand, i would be off the wall if i found that the facts that emerged, that had emerged sense about that application were true. but that court functions simply

to consider application for foreign intelligence surveillance. mark: there's no recourse for a judge to say wait a minute, you misled me, why don't you come back and let's have a chat about it. >> there's recourse in writing opinions. but you're not talking about an ongoing hearing or a court that functions on an ongoing basis in that way. that said, i would think that there would be a lot of questions asked not only by the judges but also by the office of professional responsibility within the justice department as to who was making representations and on what basis. mark: i think that's absolutely true. and i believe that there was actually a fraud perpetrated on the court. and certainly as mike says, there are other ways outside of the proceedings of the court itself where they should have been referred to the office of public integrity or some other body within the justice department as to what was

happening. because this didn't just happen once. you had the dossier being used in the first application, as i understand it, but then in addition, every three months you have to have this renewed. and it was renewed four different times. and so i would think all of the people who signed off on this and everybody who was involved, particularly as it's been proved now that the dossier was phony from the start. so what you did really, i think, was have a fraud on the court perpetrated by neem the department of justice who went forward to get these warrants for spying on the trump campaign. when we return i want to ask you about, sit possible, really, that barack obama or his inner circle didn't know anything about any of this? and why is it that they escaped all scrutiny from congress and the media. we'll be right back. ♪ ♪

mark: attorney general, again reading minds, do you think it's possible that barack obama didn't know most of at least some of what was taking place? >> it's hard to believe that he didn't, if he was reading the newspapers or reading even the white house summary of the newspapers. because so much of this was leaked during 2016 when a lot of this was going on. mark: toarnattorney general muk, if the obama administration believed that the trump campaign was colluding with the russians. it seems that the only person in the world that would have known about that would have been the president of the united states. so why not at least, if you're the prosecutor's office, you're demanding to talk to the victim,

the sitting president of the united states, he's the victim of all of this, he was not the president when all of these thing was taking place. how does barack obama avoid any scrutiny whatsoever? >> there's a term for the kind of conversation you have with a victim. that's called a defensive briefing. you tell them, look, there may be people trying to get into your campaign. you should be on guard against that. interestingly the briefing that mr. comey gave to trump after he was elected was a briefing that addressed only the most scir scl louse parts of sexual misconduct and stayed away from the other allegations. it's interesting also, you want to go back to the obama administration, there is in the house committee report that when carter page became a foreign policy adviser to donald trump, and that was announced, that

that subject was taken up at a meeting in the white house, or i believe an actual security council and discussed. i would like n to know who attended that meeting, what the discussion involved and whether that's what led to the fisa application. mark: do you think president obama didn't know anything about anything? >> as i say, i don't read minds but it's difficult to see -- mark: we have to put on the detective's hat a little bit. what concerns me here is that we heard all of this talk during the mueller hearing about russian interference in the election. the president of the united states was barack obama. it was not donald trump. the attorney general was loretta lynch. brennon, clapper, the whole crowd who are all over tv attacking donald trump.

and nobody has put any of them under oath and have asked them any questions, in writing or in person, about what exactly did they do to stop the russians from interfere in our election. if we can all agree, and i think we do, that that is a huge problem, to this day i don't know what they did and they're all over tv when they want to be all over tv. and if that's the point of a congressional hearing, if that's the point of a criminal investigation, just like all of the rest of this is somehow segregated out from the investigation, how is it that the leader of that government, obama, is segregated out of the investigation? >> well it's why so much of what you just related a few minutes ago is being left out of the whole thing. the idea that you could have a report and not even mention the dossier, the fact that you could go through and not mention steele and these other people that were involved, particularly those who were leaking information all through the campaign and then for the

transition period for the president-elect, all of these things just boggles the mind. and it shows why a campaign specifically directed at the russian activity in this country omitted so much of what activity was actually going along. but it doesn't relate specifically to pointing towards trump. mark: and i'm wondering this also, given what took place at the fbi at the senior level of the fbi. isn't this something that needs to be fixed, whatever that means? really examined from an institutional perspective so it never happens again. >> there are some problems you can't fix institutionally. we have a fascination in this country with mechanical solution to problems. and the constitution is a great mechanism open i don't want to be caught attacking that. but there comes a point where you just have to appoint good

decent dedicated people. and if what you get is something else -- and what we got in part of this period was something else -- then that's very difficult to get around that. because you can have all of the institutional and mechanical safeguards in the world and they're not going to solve that. mark: i think here it's unfortunate that you have this embarrassment for the fbi and for the department of justice because so many people -- 99% of all of the people in the fbi during this whole period were going about doing their jobs protecting the citizens of the united states and doing an excellent job. and it's sad that you had a cabal, and i call it that, a cabal at the top of leaders who were designed -- who designed their activities to thwart first the election and then active is of the president-elect and then the president of the united states. so it's important that this be presented that way to the public

so they understand it was not the institution itself that was wrong, it was some of the leadership of that institution that did very bad things. the director of the fbi, the deputy director of the department of justice, the deputy attorney general rather, people in those kinds of positions that were the ones who really sold out their responsible duties as failed to carry out their duties under the constitution. don't forget, most weeknights you can check me out on levin tv, give us a call, 844-levin-tv or go to blazetv.come slash. you're familiar with the press during your teen yours at the department of justice. what do you make of the press and how they've handled this scandal. we'll be right back.

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mark: attorney general meese, a montage put together of the press before the mueller hearing. they're all excited saying this is it, this will be the decision

whether the president is impeached and on and on and then the montage after the mueller hearing and they're going, they're crest fallen and it appears, you know, it didn't seem to work. what do you make overall of the last two, two and a half years of our free press? >> well, what we've had, really, is a massive resistance to this president and an attempt, a deliberate attempt to take him down. and there were three parties to it. one, of course, were people in the government that we've been talking about much today. secondly, it was the democratic party. but the third group without which the other two would not have been nearly as successful is the media or a good portion of the media in this country. and it was that three-headed monster if you will, which has been the bane of if president and good government and the people of this country having congress and other bodies in the government being able to

accomplish more of what the people really need. so i think the press, a good portion of the press really has to be held accountable for what's gone on. and i heard those same montages that you did and the word they were calling it was disaster. it was a disaster because it thwarted their plans to undermine this president. mark: isn't that an interesting point, though. disaster. why would it be a disaster to the media. aren't they supposed to be reporting on the news? i keep hearing them say it's a disaster too. it's a disaster if you're a democrat. how why sit a disaster if you're a newsroom and a reporter. >> back in my youth i was a reporter. and the idea at that time back in the dark days when people wrote with quill pence is you were supposed to be objective. that may not have been attainable but least it was ascertainable. now the effect can be not only

to mislead people as to what happened but also to mislead people as to what our understand tietions arinstitutions are abo. look at the mueller hearing and the report. we in this country rely on -- we say we're a nation of laws. theoretically we're relying on laws applied to facts. here the press built this person up into a prophet. we don't do things that way in this country. we have institutions. and yet because he was built up that way, it's a fundamental version of what it is that our system is all about. mark: and yet it's so crucial to have a truly free press that seeks the objective truth, as you point out. nobody is perfect, but at least give it a shot. >> they have to be held accountable. regrettably the only place to hold them accountable is in the press. mark: but they don't police themselves. let me throw this at you.

competition is always the answer. other technologies, other platforms. you can already see. there are times needed an investment from a billionaire in mexico. washington post had to be bought by bezos because it was going under. msnbc, very limited audience there, owned by comcast, like nbc that subsidizes it. i think the modern media today does an enormous disservice to the notion of freedom of the press. i don't think it's a free press. it's eat logically based democratic party socialized press. but i think there's a strong free press and it's getting stronger through competition, other newsrooms, other platforms. what do you think of that? >> i think that's really the hope for the future that there

will be other platforms, as well as competitors for those platforms to still continue. for example, having the "washington times" in the nation's capital as well as the "washington post" is an important thing. and the same is true actually on television with fox news. the important thing is to make sure that these other instruments, these other intrum mentalities really do remain free and objective and that's why it's so important for people to pay attention to what's going on in the journalism field. >> i agree. although interestingly, i think that the immediate dwr media yos being in the tank will always survive if for no other reason than the fact people want to be informed about what the other side is seeing when the people, for example, take the "the new york times" seriously. they'll always read it if for no

other reason than to understand that. mark: we'll be right back. ♪ ♪ ..

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can. mark: do you think we'll ever get to the bottom of how this russia collusion, trump, so forth scandal began? >> yes. the reason is based on something i said before. that is appointing good people. john durham is taking a look at that. i appointed him and his colleague when i was i.g. john durham was appointed by my

successor to look at the issue of whether there has been improper conduct in cia questioning of prisoners. he's somebody of impeccable credentials and fully empowered by this attorney general. i think we'll get to the bottom of this. >> i would agree with my colleague. bill barr is not you attorney general, a man of absolutely terrific rick consider recitudi am confident he will provide the leadership to restore the integrity of the department of justice and the fbi. mark: i want to thank you both for your service. you are two great patriots. thank you very much.

don't forget next time to check us out on "life, liberty & levin." [♪] jesse: welcome to. "watters' world." a war on meat, plastics, gasoline. those are some of the extreme ideas democrats proposed during cnn's 7-hour town hall on climate change. >> life on earth is at risk. >> we are fighting for the survival of the planet earth. >> this u.n. report says i guess it's 11 years we have left. >> this is on par with winning world war ii, maybe more challenging than that. >> do you ban plastic straws in. >> i think we