reagan, ronald reagan's former attorney attorney general edward meese and constitutional scholars file ifed a brief with the supreme court saying jack smith's office is unconstitutional and illegal, that the supreme court should get prison of -- rid of it because only congress alone has the power to appoint jack smith, but congress never did that. it must be if established by law, his office. congress never passed a law establishing the office of special counsel jack smith, francey. >> you know, liz, this is a really interesting issue. edward: wynn meese wrote this -- edwin meese wrote this brief, and they're saying that the department of justice should prosecute president trump, but congress has to appoint ap independent counsel, that there really is no third way. and what the department of justice has done here and as they did with robert mueller before for the president trump special counsel investigation is out of bounds, is what they're saying. now, the supreme court didn't reach that. they certainly didn't weigh in on that. but it'll be interesting to see whether that is an appellate ground that president trump will take up in the inevitable appeals in these cases. elizabeth: you know, what francey just said. people keep saying trump is upending the legal system. we understand what happened on january 6th. it should never happen again. we get the arguments there. the president has been fighting against the narrative on that. he said go protest peacefully, others say he was, you know, he didn't do enough to stop the capitol riots. we get that argument. but it's really when you see closely what's going on, gene, the democrats are really twisting and turning and manipulating the judicial system. you know, ed meese's argument also is that smith's office, jack smith's office is illegal, he has no authority to represent the u.s. on the level of u.s. attorney because his appointment by a.g. garland violates the constitution's appointments clause. he was not nominated by the president p he was not confirmed by the u.s. senate. but he now has the power of a u.s. attorney. this just feels like, again, the democrats, the biden white house is buffaloing and bullying through. >> it's exactly what it is. and one of the key things that i think is really interesting and the viewers at home should look up on their own time is a.g. holder was recently interviewed about the consequences of what would happen if donald trump was with elected. and if you listen to the things that he describes, the throwing political opponents in jail and all these other issues, it's precisely what they are doing themselves right now. and so this is a targeted, weaponizedded use of the department of justice. it's not if right. it's illegal. and it needs to end. the american people do not support this. elizabeth: you know, francey with, you go back to when trump was first elected, right in within five or six months, democrats said they wanted to impeach him without any crimes or gheen -- misdemeanors, right in they did the trump-mueller probe. the mueller probe found no russia collusion with president trump's team to hack nancy or hillary clinton e-mails. it didn't happen. so then you had nancy pelosi and chuck schumer and other democrats like adam a schiff basically step in -- adam schiff basically step in when senators chuck grassley and ron johnson put out a report about hunter biden saying, you know, this guy is exposing himself to criminal extortion overseas, with his overseas deal. they put out a lie that that was russian disinformation. so you see what's going on? when you put it all together, prancey, it's a long -- francey, it's a long timeline of a narrative of what they've been doing behind the scenes to really what trump says is rig the season. let's watch fulton county d.a. a fani willis here on her case against trump. watch this. >> when when i get asked that i'm can covering the story, many people say will the former president see prison time? what do you think? >> i think everyone in society is the same, and i don't know why that's such a difficult concept for people. you can look at the charges, and based on those charges we'll be recommending appropriate sentences. no one gets a special break because of their status. elizabeth: you know or, they're acting -- the media -- [laughter] they're acting like, you know, their statements, you know, what hair thoughts are, what they want done is about the tantamount to a conviction, francey, for trump. >> you know, liz, this is a corrupt and dangerous series of events that really started before president trump even took office. if you remember, there was talk about what would happen if he wasn't inaugust rated, could they -- inaugurated, could they somehow put hillary clinton in office. the democrats have been after him since the day he was elected, and i don't think we'rp until the american public makes them. elizabeth: thank you so much. good to see you. let's well only to the show hugo girden, you're such a smart columnist, we love what you put out. we're not going either way, we're just watching 30,000-foot perspective, trying to see what's going on, what is happening to the former president. now you have this new biden campaign push that they're going to revive attacks op trump as a danger to democracy. show this new times -- new york times story. last year "the new york times" reported they believe president trump is a threat to democracy and should be prosecuted, and since then 911 charges, multi-- 91 charges, multiple indictments of trump. what do you think, hugo? >> yeah, look, it's absolutely the case that these -- there are so many charges that have been brought against him, some are more obviously politically motivated than others. but the fact of there's sort of an avenue ranch of charges is -- avalanche of charges is making people at least think that they are politically motivated, it has actually helped trump in the primary. now, one of the extraordinary things, there seem to be two -- [audio difficulty] by the democrats. they both want to -- they like the idea of -- awed a awed. [audio difficulty] -- [audio difficulty] , but they also want to -- [inaudible] so so it's a pretty strange sort of situation where the other candidates -- i think, are very -- [audio difficulty] ever since being dragged through the courts. he's now -- [audio difficulty] and nikki haley is a approaching him pretty closely. and it's -- [inaudible] if she were to -- that would really -- elizabeth: you know, we have a new gallup survey found that president biden's year-end approval if rating is the worst of modern day presidents seeking re-election. at this point in the election cycle. i mean, you know, biden under his term, the typical family has to spend $11,400 more a year. and now you've got this news, more news, the cook political report shifted and moved michigan and nevada toward the gop a amid biden's weak polling. i mean, biden won a majority of -- he won those that states, i think, back in 2020. but, you know, president biden is not performing any better either in job approval or in the head-to-head matchups with trump. his polls are going toward the basement. we've never seep them the escalate so -- seen them escalate so rapidly to the downside for a u.s. president in modern history. >> yeah, he has -- biden -- absolutely appalling numbers. [no audio] just 34% approval, approval/disapproval. [audio difficulty] what were thought to be finish states into, you know, possible -- [audio difficulty] so back in the 2020 election, biden won 7 million more and -- [inaudible] elizabeth: yeah, got it. >> [audio difficulty] >> elizabeth: okay. got it. hugo, thank you so much. we appreciate you. come back soon. we're so sorry for the technical difficulties there. we'll have better sound coming up. >>> tonight, congressman darrell issa, lieutenant colonel bob ma guinea and laugher tengler investment ceo nancy tengler. senator rand paul's new report details a shocking $900 billion in government waste. that's bigger than the gdp of poland. and another top democrat strategist, he's joining in with david axlerod saying, yeah, america is in a lot of pape under president biden. and -- pain if under president biden. and we've got the latest in the house impeachment inquiry, biden's secret e-mails. and former president trump hammers president biden on iran. and we have former acting i.c.e. director tom homan. news coming in on fbi probes into new u.s. terror threats. expect white house press secretary claims biden's border crisis is, quote, not unusual. all of this next on "the evening edit." >> and we're at a time of the year where we're seeing more at the border. and it's not unusual. ♪ ♪ trading at schwab is now powered by ameritrade, unlocking the power of thinkorswim, the award-winning trading platforms. bring your trades into focus on thinkorswim desktop with robust charting and analysis tools, including over 400 technical studies. tailor the platforms to your unique needs with nearly endless customization. and track market trends with up-to-the-minute news and insights. trade brilliantly with schwab. 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[applause] ask, "now what?" here's what. you go with prudential to protect, empower and grow. with everything you need to deliver, you guessed it... more. one more thing... who's your rock? learn more at prudential.com elizabeth: okay, we've got more news coming in. "the hill" is reporting gop senators are now criticizing the biden white house for purposely slow-walking and then tanking border security talks. republican senators, "the hill" says, suspect the white house did not want president biden to agree to a deal. fox news' rich edson standing by live from the white house with the latest. good to see you. >> reporter: hey, good evening, liz. some republicans are now urging president biden to negotiate directly with senate minority leader mitch mcconnell on border issue. the two have cut deals on other issues before. senator john cornyn, republican out of texas, says negotiations with dhs sec al hand sow mayorkas are counterproductive and any border will not -- deal will not be with mayorkas. only potus, the president, can commit to any border deal. anything else is a waste of time. the white house says president biden is dispatching mayorkas and secretary of state antony blinken to be meet soon with mexican president lopez on rah door to address this massoff surge. the press secretary maintains the president's done everything he can on his e own to handle the surge is. house speaker mike if johnson's office say, quote, the white house's insistence that the president has done everything he can on his e own to secure the border is an insult to the american people. in fact, it's been this administration's policies that president biden can reverse that have led to the historic crisis we are seeing on a daily basis. johnson wrote the president to urge his administration to stop mass parolees into the country, expedite removals, reinstate the policy where migrants need to await asylum claims in mexico and new border wall construction. democrats and republicans in congress are negotiating a deal that would also provide funding for ukraine and israel. if his? if. elizabeth: rich edison, thank you so much. always great journalism. merry cast to -- christmas to you. let's bring in former i.c.e. director tom homan. breaking news, cbs is now reporting former president trump is asking his allies about the possibility of nikki haley as his running mate, as his vice president. nikki haley, she's been strong about border security. what do you think? i mean, there's more than 101 million illegal aliens crossing under biden -- 10 million -- that's the size of michigan. what do you think of nikki haley as trump's vice president? >> look, you know, nikki haley's strong on the border, absolutely. most of what she says out there in the field is repeating what the trump administration did, so she's strong on the border. no one's stronger than the president trump, and he proved that during his administration. he has unprecedented success, so nikki haley as vice president, i wouldn't shy away from that, no. elizabeth: tom, this story's coming in too, a abc is reporting the fbi is now running down more than 1800 reports of terror threats inside the u.s. the fbi has now more than 100 investigate investigations. house speaker mike johnson says the president can takingstive action with the -- executive action with the stroke of his pen to fix it. he ended trump's policies like remain in mexico and the border wall. >> you know, i don't get it because it is -- for two years i've been saying this is the biggest national security failure i've seep since 9/11. liz, we've got #. 8 million known gotaways who chose to pay more to get away, 1.8 million. who are they? where do they come from? what did they come to this country for? if why did they not pay less to turn themselves in, get released, get flown to the city of their choice on the taxpayer dime, get work authorization while they pled if their case? who would not take advantage of that giveaway program at a cheaper rate? 1.8 million paid more to get away. many of these are from countries with sponsored terror. if they've rested that many, how many of the 11.8 came -- 1.8 came from one of those countries? elizabeth: you know, it's interesting, the critics are saying the president negotiating with iran, negotiates with venezuela but won't negotiate with senators about border security? listen the chicago voter, chicago minority voters who are really upset e other biden's border crisis. watch this. >> -- immigrant, illegal. send 'em all back. across the rio grande and don't obey our immigration and naturalization laws. to see another group come over here, it's disgraceful. it is un-american. and these rules that you have, the rule -- who made these rules? what about the black children in the ghettos? we've got to make a future for them. [inaudible] i'm strictly advocating for back people. call i.c.e. on them. trump, come in here. clean this mess up. the most corrupt city in the united states is the city of chicago. elizabeth: whoa. what do you think, tom? >> well, look, i've actually had three different pastors from chicago contact me and say that they feel the black community's been put in the backseat because we're giving free lodging, free food, free medical to the aliens, but they feel they've been left out in the cold, and they have. so three separate pastors contacted me and asked me to contact the trump campaign and see if president trump will go to chicago and have a rally with those folks. they promise they'll bring thousands from the black community out to protest what's going on and, look, i think it's a great idea. i think they're exactly right. the residents of chicago have been left in the dark. and, look, we've got homeless vets in chicago. they don't have a free hotel room, they don't get three squares a day. so exactly right. under this administration, it's america last. elizabeth: yeah. and also this, tom, i want your reaction to former president bill clinton and barack obama on illegal immigration. they were tough about it. they were saying follow the law. they were standing up, these democrat presidents, for border security. this, when you hear what they say, you're going to see how far to the left and off the rails this biden white house has gone. watch this. >> all americans not only in the states most heavily affected, but in every place in this country, are rightly disturbed by the large numbers of illegal aliens entering our country. the jobs they hold might otherwise be held by citizens or legal immigrants. the public service they use impose burdens on our taxpayers. that's why our administration has moved aggressively to secure our borders more. >> but today our immigration system is broken. and everybody knows it. families who enter our country the right way and play by the rules watch others flout the rules. business owners who offer their workers good wages and benefits see the competition exploit undocumented immigrants by paying them far less. awe all of us take offense to anyone if who reaps the rewards of living in america without taking on the responsibilities of living in america. elizabeth: did you hear that? but they would be, you know, labeled by the far left as a extremists. this biden white house has gone off the rails. this is not normal. we're living in abnormal times under this biden white house. >> you know, this upsets me the most, i say this all the time, i worked for six presidents starting with ronald reaganworked for presidents obama and clinton as a career special agent. every president i worked for understood you can't have national security without border security. you need to know who and what's coming in. no one did more than president trump, what he did was up precedented. but joe biden is the first president in the history of this nation who came in office and unsecured the border. if he unsecured the border. what commander in chief does that? so, yeah, we are way off to the left. we fell off the a table. i knew they'd move to the left, but i never thought they'd do what they're doing and just ignoring the crisis on the southern border. again, i don't care what people 's opinions on immigration, we have a big national security failure right now, and it scares the hell out of me. elizabeth: but why is it happening? biden in 2006 voted for the secure fence act for more border security. what happened? is he appeasing one wing of his party, one part of his base in order to secure thei