For the Record with Greta, Transcript 5/16/2017

Guests: Clint Watts, Bill Kristol, Alan Dershowitz, David Preiss, Eric Swalwell, Shane Harris, Ken Delaney, Peter Alexander, Michael Schmidt, Bill Kristol, Alan Dershowitz, Blake Farenthold, Clint Watts

GRETA VAN SUSTEREN, FOR THE RECORD HOST:  Chris, thank you.  And, boy, there`s a lot of breaking news.  Another bombshell, the New York Times first reporting and NBC now confirming, President Trump asked former FBI director James Comey in February to end his investigation into former national security advisor General Michael Flynn.  Now, NBC News confirming it was at a White House dinner, Trump asked Comey to end it.  After dinner, Comey then wrote a memo saying the president told him, quote, I hope you can see your way clear to letting this go, letting Flynn go, he`s a good guy, I hope you could let this go.  The White House telling NBC News in part, quote, the president has never asked Mr. Comey or anyone else in any investigation including any investigation involving General Flynn.  Ken Delaney is the NBC News intelligence and national security reporter.  He joins us.  Ken, what can you tell me?

KEN DELANEY, NBC NEWS:  Greta, just want to clear something up because I was confused about this at first.  This is such a fast moving story.  It wasn`t after the dinner that Comey wrote the memo.  It was after an oval office meeting, a day after Flynn resigned, about two weeks after the dinner.  But the upshot is the same and we`re speaking to -- we have multiple former law enforcement officials confirming this now.  I spoke in particular to one very close friend of Jim Comey`s who recounted this whole scenario and said that Donald Trump asked Comey to drop the matter that Flynn was a good guy, and Comey was noncommittal.  And I asked this source, why didn`t Comey, you know, resign on the spot and go public?  And the source had no comment on it.  But it raises the question of whether any other such conversations took place, and did Jim Comey believe that the president was trying to obstruct his investigation.  Did he take any other steps to preserve other evidence?  Now, this source told me that Jim Comey wrote a memo after just about every conversation he ever had with the president, Greta.  So, there appears to be more evidence out there.

VAN SUSTEREN:  Well, Ken, is there any indication they`re going to release the memo because one of the problems we have is we have a contemporaneous memo that we have not yet seen, and is this now -- he`s sort of deciding several weeks later that`s what the president intended to do?  Or did he think that at the time that he wrote the memo which I understand had been on February 14th?

DELANEY:  Yeah.  So, my source is saying it was a contemporaneous memo as all these were.  And there may be other -- there may be other documentation of some of these encounters, FBI note takers or other kinds of methods.  You know, that`s a great point, though.  We need to see these memos.  And you can imagine that congress is going to be requesting them.  The New York Times is reporting the FBI has them or some of them in their possession.  So, they`re government records.  Some of them may be classified, but you can imagine that this is going to be a subject of an investigation going forward, Greta.

VAN SUSTEREN:  Ken, if you`ll just stay with us.  Joining us now from the White House, NBC`s Peter Alexander.  Peter, what`s going on there?

PETER ALEXANDER, NBC NEWS:  Well, the bottom line is I was just behind the scenes here at the White House speaking to some senior White House officials about this, and they are denying the version of events as described in this memo, confirmed by NBC News as first reported by the New York Times.  They did give us a statement that says in part that the president has never asked Mr. Comey or anyone else to end any investigation, including any investigation involving General Flynn.  They add that this is not a truthful or accurate portrayal of the conversation between the president and Mr. Comey.  This advisor points to the fact that the acting FBI director Andrew McCabe.

VAN SUSTEREN:  Peter, can I.

ALEXANDER:  Yes, please.

VAN SUSTEREN:  Can I interrupt you one second?  Adam Schiff is making a statement about this.  Let`s listen.

(BEGIN VIDEO CLIP)

ADAM SCHIFF, U.S. CONGRESSMAN:  Whether he was the subject of investigation in the context of reports by the director, or associates of the director that he was asked to essentially -- for a loyalty test to the president, and now with allegations that the president urged him to essentially drop the investigation of Michael Flynn, enough is enough.  Congress really needs to get to the bottom of this.  We did have an opportunity to inquire further about the reports of the discussion within the White House with the Russian foreign minister and Russian ambassador.  I don`t have much I can share in terms of our discussions on that.  I can only say that I remain concerned about allegations that the president shared information with the Russians that was not vetted in advance by our intelligence agencies.  It`s one thing to do this as a product of inter-agency thought and deliberation about information that needs to be shared.  It`s another thing to do it spontaneously, impetuously, or in a way that might endanger sources of information.  So, I think there is still more for us to learn in terms of whether classified information was shared with the Russians.  That was an answer that General McMaster was not willing to give today, and also whether mitigation steps need to be put in place.  And I`m happy to respond to one or two questions.

UNINDENTIFIED MALE:  Sir, why is (INAUDIBLE) not with you and getting cooperation from Republicans and scheduling the Comey hearing or requesting documents or tapes?

SCHIFF:  Mr. Conway and I are working together very well.  And I think that he has made every effort, we both are, to run the investigation in a completely nonpartisan fashion.  The issues that have come up in connection with Mr. Comey are beyond merely the scope of the intelligence investigation and the intelligence committee.  I think the judiciary committees both in the house and senate also have a deep interest in this.  And from my point of view, I`m not being proprietary about this.  Of course, I`d love for him to come before the intelligence committee.  But either way he needs to come back before the congress and I think share with the public what conversations he had with the president that may bear on whether there was any effort to obstruct the investigation or impede it in any way.

UNINDENTIFIED MALE:  Congressman, in light of these new reports on the conversation between Comey, do you think the president has credibility to appoint a new FBI director right now?

SCHIFF:  Well, you know, I think the president has severely undermined his own credibility on anything pertaining to the Russian involvement in our election.  With respect to the choice of the new director, I agree completely and wholeheartedly with Lindsey Graham, I think it ought to be completely A-political choice.  I think the ideal candidate.  I`m not speaking to anyone in particular, but I think the ideal profile of the candidate would be someone who is a retired judge or an active judge who is willing to step down from the bench ideally that has prosecutorial experience in the past, but someone, I think, that is very consistent with the necessity of true independence in that role.  So, whether the president is credible on the subject or not, the senate has an incredible responsibility of making sure that no one is confirmed for that job that we can have absolute confidence would be fully independent.  And I`ll say this also about why that is so important.  There are three primary investigations going on of the Russia issue.  One in the house intelligence committee, one in the senate intelligence committee, and of course that being done by the FBI.  The FBI has far greater reach than any committee in congress.  They have agents around the world.  They have resources we don`t have.  We can`t recreate what the FBI can do.  Nor should we try.  We have to run our own investigations, but we do have to make sure that the FBI does its work in a thorough way, and in a partial way, and without any impediment whatsoever.

UNINDENTIFIED MALE:  One last question.  The White House (INAUDIBLE) the version of events, they asked for Comey.

(END VIDEO CLIP)

VAN SUSTEREN:  All right.  That`s Adam Schiff, ranking member of the house intelligence committee.  Let`s go to Michael Schmidt, he is the New York Times reporter who broke this story.  He`s on the phone.  Michael, what can you tell me about this memo?  And have you actually seen it?

ADAM SCHMIDT, THE NEW YORK TIMES:  Thanks for having me, Greta.  As we point out in the story, we have not seen the memo, but we had been read parts of it.  And basically, after Trump in the oval office said directly to Comey that he should move on from the Flynn investigation and Flynn had done nothing wrong, Comey went back and wrote a detailed memo that outlined everything that had happened with Trump.  Comey was very concerned about Trump trying to meddle with the FBI, and he knew that he had to create a paper trail.  He did memos on every single phone call and meeting he had with the president.

VAN SUSTEREN:  In your article that read the news as breaking, it said that Comey shared with senior FBI officials this memo, yet, last week the number two, now the acting director of the FBI, McCabe, testified on the hill, and he said there had been no effort to impede our investigation to date.  Was he not one of these people with whom Comey shared the memo, or was he out of the loop, or what can you tell me?

SCHMIDT:  I don`t know why deputy director McCabe said that.  I don`t know whether he knew everything that was in these memos.  We have not learned anything about that.  But Comey was concerned about what Trump was doing and what Trump had said to him, and Trump`s efforts to try and curtail the investigation.  Trump told Comey that he thought Flynn was a good guy and had done nothing wrong, but that there was no need for the investigation.  And this was really concerning to Comey.  It was -- he believes in the sort of independence of the FBI, and a line between the White House and the FBI, and he thought he had crossed that.

VAN SUSTEREN:  All right.  February 14th is when this private meeting occurred.  What time of day was it, and apparently according to your article there were others at the meeting who were asked to leave and just leaving the two alone, Trump and Comey?

SCHMIDT:  There was a 4:00 PM national security meeting in the oval office with the president with a bunch of folks from the intelligence community and the law enforcement community.  And at the end of the meeting, Pence, Sessions and Comey were still there, and the president told Sessions and Pence to get out of the room.  Sessions kind of lingered around.  The president excused him again.  And then it was in the oval office one on one that Mr. Trump had the conversation with Mr. Comey.  Now, what Mr. Comey`s associates will say, that if Mr. Trump did have a taping system there will be a way to corroborate this meeting.

VAN SUSTEREN:  Was it at all unusual, did Comey memo, or any associates say it was at all unusual for Trump to essentially tell everybody to leave but one person, the then director?

SCHMIDT:  Correct.  I think that it`s seen as an inappropriate thing to -- for the president and the FBI director to be alone in a room discussing details about an ongoing investigation that is so politically sensitive and involved the president`s former national security advisor.

VAN SUSTEREN:  I guess what I`m trying to find out is whether it`s unusual for the two to be alone like that because we have a situation where something -- look, any time someone tries to interfere with an investigation, you`ve got an obstruction of justice potential right there.  And you have the director who did not resign at that point, and then several weeks later after he`s been fired, he now says that this happened.  With all due respect to everybody involved here, I`m trying to figure out whether -- without seeing the memo, whether or not -- you know, what happened that day.

SCHMIDT:  Well, I think the FBI found itself in a weird position because basically they had witnessed the president -- Comey -- basically there was a potential crime that the president may have committed, but the FBI wasn`t really sure what to do about it.  We don`t know whether they told the justice department about it.  We don`t know how further they pursued this.  We do know as we pointed out in the story that Mr. Comey and senior FBI officials kept this information from the investigators working directly on the case because he didn`t want them to be influenced by -- he didn`t want the investigators to be influenced by what the president had said.

VAN SUSTEREN:  All right.  So, the -- Comey said there`s a tape, we`ll hear everything that happened.  If that tape ever gets out.  But Comey has now offered to testify.  At least he did prior to your breaking news story.  He`s offered to testify, but only in a public forum?

SCHMIDT:  Correct.  Comey has -- wants to testify, but he wants it to be public.  And so the question will be whether he`s hauled up to Capitol Hill, and whether the Republicans will allow him to testify and what he will say about his interactions with the president.

VAN SUSTEREN:  Did any of your sources indicate that they`re likely to be more memos with more bombshells?  Not that this one is not huge in and of itself.

SCHMIDT:  I think that Mr. Comey was concerned about a lot of his interactions with the president.  I don`t know if there was anything this severe that happened in the other ones.  This is probably -- this really sort of changes some of the ways people are looking at the story in a sense that it raises questions about whether direct evidence of the president was trying to influence the investigation.  I don`t think there is anything this strong out there else wise, but, you know, the story has had a lot of twists and turns that we haven`t been able to see, so.

VAN SUSTEREN:  Indeed it has.  Michael, thank you very much.  Come back if you get some more.  Thank you.

SCHMIDT:  Thanks.

VAN SUSTEREN:  Bill Kristol is editor at large at the Weekly Standard.  Alan Dershowitz is a constitutional law scholar professor emeritus at Harvard Law School.  Alan, let me go first to you.  Looking what was said, at least purported to be said in a conversation in a contemporaneous memo that we have not seen, let the investigation go.  If that is true, what`s next?

ALAN DERSHOWITZ, HARVARD LAW PROFESSOR:  Well, first, we should have no trouble getting the memo.  The memo belongs to the United States government.  It does not belong to Comey.  And, so, the White House is wrong when it says the burden of proof is on the New York Times.  The rules of evidence are always the burden of proof is on the person who has the evidence available to him or her.  The government has that memo available.  They can read it.  They probably have read it.  Memos are important because they reflect the current, the contemporaneous views of the person writing it rather than something that occurred afterward.  Also, there may be a taping system in the oval office.  So, we should be able to ultimately find out what exactly was said, and everything will turn on what was said.  If it was a polite request just saying, oh, you know, he`s a good guy, Flynn, I wish you`d back off this thing.  That`s not an obstruction of justice.  If it was a command, it would raise stronger problems.  I don`t think we`re ever going to get to an obstruction of justice. 

Let`s remember that the executive branch is a unitary branch under the constitution.  When Thomas Jefferson was president, he commanded his attorney general not only to indict Aaron Burr, but he micro managed the trial of Aaron Burr, and he told the chief justice that unless there was a conviction, he would get the chief justice impeached.  This is Thomas Jefferson.  So, you know, to get to an obstruction of justice, you have to go over a lot of constitutional hoops.  I don`t think we`re ever going to get there, so I think this is a political issue.

VAN SUSTEREN:  But I think when you fold into it, Alan -- this is an assumption that`s true.  These are the allegations they`re sending out.  They`re only allegations, they may not be true.  But you have the situation where Sally Yates, where she warns the White House and the next thing.

DERSHOWITZ:  Sally Yates` warning is absolutely idiotic.  Think about that for one second.  Just logically think about how wrong Sally Yates is.  She says that Flynn posed a risk of blackmail.  All you have to do is go over to Flynn and say, oh, by the way, Mr. Flynn, we overheard your conversation with the Russians.  You lied.  That`s the end of the blackmail.  The Russians have nothing more on him.  It`s idiotic to say that Flynn was subject to blackmail once the government knew about it.  All they have to do is go over to Flynn and tell him they know about it.  Then they can go further and say, by the way, if the Russians try to contact you, record the conversations, and we`ll make sure that the Russians pay a price for that.  But there was no way that Flynn was ever subject to blackmail as long as the United States government and Sally Flynn herself knew that this information was a lie.  You just tell them that and the blackmail is over.

VAN SUSTEREN:  I don`t think you can discount, Alan, the fact he was interviewed by the FBI.  I don`t know what he said by the FBI.  But by that time he`d been interviewed by the FBI.  If he made a false statement to the FBI saying a conversation was different than what he relayed to Pence.  I think he has a bigger problem.

DERSHOWITZ:  I agree with that.  I`m just saying the blackmail issue, take it off the table.  Somebody should ask Sally Quin, I`m sorry that Anderson Cooper didn`t do it in his interview.  Somebody should ask Sally Quin, duh, why didn`t you just go to Flynn and say, by the way, we know, we have the tape recording of you lying.  You`re no longer subject to blackmail.  That`s the easiest thing any intelligence operation knows that if somebody is subject to blackmail, if somebody is going to be blackmailed because he`s had sex or because whatever, you go over to the guy and you say, by the way, we have the picture of you having sex so you`re no longer subject to blackmail.  It`s the easiest way to undo any blackmail by the Russians.

VAN SUSTEREN:  All right.  Let me go to Bill Kristol.  Bill, your thoughts on this?

BILL KRISTOL, THE WEEKLY STANDARD:  I think it`s interesting -- Alan is right -- the way in which Trump ordered or suggested to Comey to ease up on the investigation would be important to know.  I do think it is interesting that President Trump asked Vice-President Pence and Attorney General Sessions to leave the room.

VAN SUSTEREN:  Assuming all this is true.  We`re making all these assumptions.

KRISTOL:  Assuming that that is true, and he wanted to have a one on one session with the FBI director, I would bet and people serving in the Obama White House, and the Bush White House -- talk about this, but my memory of the White House I served in, I might not have known about them is, it would be very, very rare for the president of the United States to be one on one with the FBI director.  The FBI director reports to the attorney general.  The president has a White House counsel.  He has a White House chief of staff, as the vice-president.  What would you have to discuss that you wouldn`t want your most senior people to know?   So that I think is a little worrisome if you`re on the Trump side here, but why the one on one meeting.  And then the question is, of course, what about Flynn?  I mean, people are assuming that Trump had sympathy for Flynn, I assume that`s correct.  But was he also worried that Flynn might say certain things about Trump?  We don`t know about that.

(CROSSTALK)

KRISTOL:  He had fired Flynn the day before.  He liked Mike Flynn.  Mike Flynn had been a loyal supporter of his.  Remember what Rob Kelner, Mike Flynn`s attorney had said, it will be interesting to find out, was that the night before this meeting or the day of this meeting, remember Kelner said Flynn has an interesting story to tell and he might be willing to testify.  That would be interesting to know.  So, again, it matters a lot is Donald Trump just acting out of human sympathy for a guy he`s known for a couple of years, or is Donald Trump trying to stop an investigation that might incriminate himself?

VAN SUSTEREN:  You know how I read that, maybe I don`t know, Alan, how you read that.  I thought that the lawyer was trying to dangle that to get immunity on false statements to the FBI and something else.  I was trying to dangle an interesting story so he got immunity.  I thought that was bait.

DERSHOWITZ:  He did it foolishly because you don`t dangle those things in public.  You dangle those things in private to the prosecutors.  You tell them discretely that you have a story to tell.  They then ask for a proffer and then they give you immunity.  But you don`t go in public and make that kind of statement.

VAN SUSTEREN:  I think if I were the president`s lawyer tonight, I think the most potent thing the president has is that as the acting deputy director -- acting director of the FBI, McCabe, testified just late last week that there had been no effort to impede our investigation to date.  And according to the New York Times report is that when the former deputy or former director Comey wrote that memo, that he told it to several other senior intelligence -- senior people at the FBI.  Maybe McCabe wasn`t in that circle.  But I think that`s the most potent thing the president has tonight, Alan.

DERSHOWITZ:  I agree with that.  And again, there is a big difference between asking politely and doing something a little bit more direct than that.  I suspect that Comey did not identify this as an obstruction of justice.  Otherwise he would have been duty bound to bring it to the attention of the justice department, and he didn`t do that.

KRISTOL:  I think that`s right.  But I also think -- I mean, McCabe is the actual acting director of the FBI.  He is in public office.  He can testify to this.  So I think the point Alan made at the very beginning we`re going to learn a lot more about this.  There are documents which are either government documents or maybe Comey dictated them on his own.  They would still be government documents if he dictated them late at night, at his house in a recording machine.  They`ll still be accessible obviously.  McCabe is there.  He can testify.  Comey can testify.  Flynn may or may not be willing to testify, but we can eventually learn what he has to say.  White House people can talk about what happened at that meeting and why -- what they thought when President Trump asked them to leave the room.  So, we`re going to learn a lot more about this.

(CROSSTALK)

  VAN SUSTEREN:  NBC has confirmed, at least we have been told, the same thing about the contents of the memo.  We haven`t seen the memo yet, just to the extent it`s relevant.  NBC has also been told the same thing.  Alan?

DERSHOWITZ:  Well, I just think it`s a very, very high bar to get over obstruction of justice for a president who, in fact, is the head of the unitary executive branch that includes the FBI and the justice department.  It`s just a hard, hard barrier to overcome.  It doesn`t mean that the accumulation of circumstances -- and we`re seeing them drip by drip now, may not ultimately get us to that point, but we`re not there yet.

VAN SUSTEREN:  Congressman Blake Farenthold, Republican from Texas, serves on the house oversight committee, he joins us.  Sir, what can you add to this discussion tonight?  You just met with the CIA, you got a briefing.  Tell me what you can tell us.

BLAKE FARENTHOLD, U.S. CONGRESSMAN:  Well, I can tell you that we`ve got a situation now where a lot of stuff is coming from anonymous sources, the earlier stuff.  Obviously you`ve got the alleged Comey memo.  But you`ve got a media and folks within the government who are dead set on discrediting President Trump, and the media just jumps right on it.  You`ve got to remember, Trump is making a transition from being the CEO of a company to the chief executive of the country.  And the rules are a little bit different there, and I think he`s climbing the learning curve but not as fast as I think some folks including me would like to see.

VAN SUSTEREN:  Would you agree that if we actually could see the memo that is now being reported that James Comey made contemporaneous with his discussion on February 14th with the president, that that would have some - - that would help us understand the situation better, if we actually saw the memo?

FARENTHOLD:  And I`m confident it`s going to come out.  I agree with the professor that it is government property and it`s the people`s.

VAN SUSTEREN:  And I assume that if Comey would produce it now -- where is this memo, you think?  Must be back at the FBI, or was Comey able to take it?

FARENTHOLD:  When you leave government service, you`re supposed to leave your papers with the government.  They`re not your papers, they`re the government`s papers.

VAN SUSTEREN:  All right.  Well, let me just play for you what the senate minority leader Chuck Schumer just said reacting to this news.

(BEGIN VIDEO CLIP)

CHUCK SCHUMER, MINORITY LEADER:  Mr. President, in a week full of revelation after revelation on a day when we thought things couldn`t get any worse, they have.  I was shaken by the report in the New York Times that alleged that the president tried to shut down an active FBI investigation into a close political associate.  And we are only one day removed from stunning allegations that the president may have divulged classified information to a known adversary.  Concerns about our national security, the rule of law, the independence of our nation`s highest law enforcement agency are mounting.  The country is being tested in unprecedented ways.  I say to all of my colleagues in the senate, history is watching.

(END VIDEO CLIP)

VAN SUSTEREN:  Congressman, your response to the senate minority leader?

FARENTHOLD:  Sorry, I`ve got to catch my balance here from all the spin that`s going on.  Donald Trump is not cut a break by anybody.  If this were Barack Obama, everybody would be oh, well, this, oh, well that.  It was just a friendly suggestion.  It`s amazing the difference in the treatment this president gets in the press than his predecessor.

VAN SUSTEREN:  Let me go back to Alan Dershowitz.  Alan, I guess a politician says that the president tried to shut it down and says that that`s a fact.  A lawyer says, looking at this, is that someone has made the allegation and we are awaiting the documentary proof, right?  I guess we`ve lost -- I`ll go back to you, Bill.

KRISTOL:  Well, look, assuming the memorandum is not being made up and was really contemporaneous, I don`t see what interest James Comey would have on February 14th to invent a conversation with President Trump.  He was sitting FBI director.  And I think Alan makes an important point.  Comey does not seem to have thought at the time that this rose to obstruction of justice.  If he had, he would have had to inform the justice department.  He might would have resign -- he didn`t seem to have done that.  So I think the question whether it`s illegal obstruction of justice or criminal obstruction of justice is one thing.  Could it be part, honestly, an impeachment bill, a bill of impeachment, this is very much like incidentally the allegations against Nixon and even Clinton in a certain way in terms of using the instrument of government to shut down investigations that he was fearful of and that would be the question.

VAN SUSTEREN:  Alan, are you still with us?

DERSHOWITZ:  I`m still with you.  Here I am.

VAN SUSTEREN:  All right, Alan.  What`s your first question, what do you want if you`re looking at this?

DERSHOWITZ:  I want to see the memo.  I want to see whether this is a command or just a suggestion.  I want to see the tone.  I want to see what Comey himself thought about it at the time it occurred rather than in retrospect after he`s been fired, and what his friends are putting out the story.  I want to see the facts, just the facts, and then we can add that to the facts that we know exist and do a legal analysis.  But as I said, it`s going to be very hard to get over the unitary executive as a barrier to any obstruction of justice here.

VAN SUSTEREN:  In terms of the memo, whether it`s sort of a recovered memory by Comey now after he`s fired, as Alan says, could be a possibility.  We don`t know anything at this point.  I guess if we had a tape that sure would help us.  Is there likely to be a tape of this?

KRISTOL:  I don`t think so.  But I think the FBI director who is a man of probity, there is no evidence he`s ever manufactured memos in the past, I don`t believe, if he goes back and dictates a memo that is contemporaneous -- the presumption has to be -- he doesn`t quit -- no, no, because Alan is right.  But I didn`t think it quite rose to obstruction of justice.

VAN SUSTEREN:  So why is it coming out now then?

KRISTOL:  It rose to something -- well, he thinks perhaps that his friends think it`s relevant to the president`s overall conduct.  We`re not talking about -- we are talking partly about a criminal inquiry.  We`re also talking about a political question of confidence in the president whether there should be a congressional council, whether there should be a congressional inquiry, whether they could conceivably be impeachment proceedings.  These are all legitimate things to raise in this context.  This is not narrowly legalistic questions.

VAN SUSTEREN:  You wouldn`t drip, drip, drip part of a memo and comments to the media.  Would you present the memo, maybe even testify publicly.  This has been leaked to the media tonight in piece.  We haven`t seen it.  And it may be a huge bombshell, it may not.  But we have not actually laid our eyes on it.  It may be worse than we think, maybe less than we think.

(CROSSTALK)

KRISTOL:  Go to Comey and say, why don`t you come forward here.  You`re a private citizen now.  Why don`t you tell us what happened.  There is no reason I can see, maybe Alan will correct me, for Comey to be reticent at this point.

VAN SUSTEREN:  How do we determine tone, Alan, from the memo?

DERSHOWITZ:  Well, first of all, the memo may have some tone in it different from the selected portions that were read the New York Times.  Second, there may be a taping mechanism in the oval office.  And third, you know, I think we have already come to the point where an independent investigation by a congressionally approved independent commission is warranted.  I don`t think we`re up to a special prosecutor.  That may come after an independent investigatory agency investigates.  It may then recommend an independent council.  We`re getting close to that, but again, we`re not quite there.  I think we have to do this step-by-step to make sure that this isn`t politicized, that it remains a nonpartisan investigation designed to bring out the truth.

VAN SUSTEREN:  And what I would like is Comey has said that he will publicly testify, not privately, which I really appreciate that he wants to do it publicly.  You know, let`s have at it, have it sooner rather than later.  And I think at that point we make the decision whether or not to go on independent counsel or independent commission or not.

DERSHOWITZ:  Makes a lot of sense.

VAN SUSTEREN:  All right.  Clint Watts, a former FBI special agent joins us.  Clint, you`ve been listening to the discussion that James Comey apparently made a contemporaneous memo after meeting with the president on February 14th.  We have not seen it, we only have bits and pieces, and we don`t really have much in context.  We just have the fact that he reports - - there is a report of this memo.  Your thoughts?

CLINT WATTS, FORMER FBI SPECIAL AGENT:  I think this is consistent with Comey.  He`s done this before where he`s actually documented evidence.  This is very common for lawyers to keep track of any of their engagements, conversations, anything that went on the record, especially if they`re not sure what the outcome would be.  And the other thing we have to look at, you know, I`m tired of hearing some of this legal talk which is, let`s look at what`s right and wrong.  He has a dinner where he asks for some sort of loyalty oath.  He then brings the FBI director into the oval office with no other witnesses, and then brings up the Flynn investigation.  And then, he relieves the FBI director for causes that were based on something that happened last summer.  And then, the next day says, oh, it was because there`s nothing to the Russia investigation.  That is three strikes in my book.  I don`t understand why this evidence comes up every couple days. 

GRETA VAN SUSTEREN, NBC NEWS HOST FOR THE RECORD:  All right let me just ask how you factor in two things.  One, the fact is that this note, February 14th contemporaneous note is that if it were pressure to drop the case, you know, why didn`t Comey resign or why it didn`t leak out, maybe that is the first explanation.  The second is McCabe, who is now the acting director late last week, testified before congress and he says there has been no effort to impede our investigation to date.  Now, in the "The New York Times" article it says that when Comey wrote this February 14th article, he told senior people at the FBI, maybe he left his number two out of the loop.  What are your thoughts on that? 

WATTS:  There is a difference between trying to impede the investigation and trying to influence it through the FBI director.  I see this as a very consistent pattern.  Regarding your first question, you know, McCabe, what he is saying is the investigation, the interviews that they want to do, the evidence they want to gather, the subpoenas that they probably are developing or issuing, those have gone through.  But in terms of influencing the investigation, it seems pretty consistent.  Trump himself said last week in an interview on NBC.  I didn`t see anything to this Russia investigation.  I don`t see why we continue to pursue this.  I just don`t see how there is any evidence to anything else other than the case.  It consistently comes back to Flynn and his involvement with this Russia investigation. 

VAN SUSTEREN:  What does Comey`s reputation among the FBI agents you know? 

WATTS:  The FBI agents I know all are very much in favor of supporting the FBI director.  I`ve never heard the up swell of it.  Based on the way things conducted last week, how Trump fired him by sending over a letter rather than calling Comey on the phone, Comey showing up in Los Angeles and finding out that he is fired based on a TV broadcast that is behind him, I think that definitely puts any FBI agent that is out there in the Comey camp and says, hey, I`m going stay independent and impartial and I`m going to fight for the American people.  It`s the rule of law.  It`s not the rule of Trump. 

VAN SUSTEREN:  Bill Kristol? 

BILL KRISTOL, THE WEEKLY STANDARD FOUNDER AND EDITOR:  Greta, you`ve been making the point about McCabe saying the investigation had not been impeded.  The Times does have one sentence that might speak to that.  Comey and his aides perceive Trump to influence the investigation.  They decided they would try to keep the conversation secret even if the FBI agents working on the Russian investigation so the details of the conversation would not affect the investigation.  It may be that Comey only shared this memo a couple with personal staff aides of his.  He did not put it in the chain of command.  He did not let McCabe know about it.  He wanted McCabe continue to supervised on the investigation. 

VAN SUSTEREN:  Was McCabe supervising the investigation? 

KRISTOL:  It will be a question asked of McCabe, I assume is being asked of him right now and people who are at the FBI will have to answer that, but I think it`s possible Comey didn`t -- McCabe is speaking honestly, that the investigation wasn`t impede, in fact, but Comey simply recorded this conversation and let a couple aides know about it but did not put that into the lot of chain of command at the FBI. 

ALAN DERSHOWITZ, LAW PROFESSOR AND AUTHOR OF "ELECTILE DYSFUNCTION":  I`d love to hear a historian look at the Kennedy`s administration relationship with J. Edgar Hoover.  It was a very sordid relationship.  We know that the Kennedy justice department allowed Hoover to take record Martin Luther King.  You know, this new found notion of ethical separation between the president and the FBI is not really a matter of law.  It`s a matter of post-Kennedy administration, post-Johnson administration tradition.  I suspect historians will go back and find very often that president --

VAN SUSTEREN:  That doesn`t justify it. 

KRISTOL:  The law changed.  That is why they created a tenure term for the FBI director, if you wanted to defend this on the grounds the behavior of Kennedy -- J. Hoover was appropriate, you cannot behave the way John F. Kennedy and Bobby Kennedy behaved in 1962. 

DERSHOWITZ:  It is not whether it was appropriate or justified.  My point is whether it was illegal.  The law doesn`t change --

KRISTOL:  The laws have changed.  There have been new laws since 1962. 

DERSHOWITZ:  Criminal laws don`t change. 

KRISTOL:  There are new criminal laws since 1962.  The government practices in terms of political --

DERSHOWITZ:  The law that existed prior to the Kennedy administration.  Just because we have new sensitivities, which we should, and tell us what happened here is wrong doesn`t mean you can go back and retroactively rewrite the meaning of the criminal law to cover conduct that wasn`t covered at the time the law was -- that is my only caveat. 

VAN SUSTEREN:  All right.  Tell the viewers, Alan.  Let`s pick something in the universe of the discussion, obstruction of justice.  What are the elements to that?  What is that so we can drill that one out or still keep it in the pot as maybe remotely that that could have happened? 

DERSHOWITZ:  Well, obstruction of justice has been applied far, far too broadly and every civil libertarian ought to be concerned about any expansion of obstruction of justice.  There are some horrible, horrible cases involving relatively innocent conduct being swept within obstruction of justice.  The real issue is how it applies to a president who is the head of the executive branch.  Can congress really enact a statute prohibiting the president from dealing with the executive branch in the manner he chooses to deal with it? 

VAN SUSTEREN:  No, wait a second, Alan.  If there is a black and white situation, if I`m the president and the FBI comes in and says do an investigation, I say drop the investigation, the person says no, if you don`t drop it I`m going to fire you, that would certainly be an effort to obstruct justice, wouldn`t you agree? 

DERSHOWITZ:  That would be the clearest possible case.  And the question is would the constitution permit a president to be indicted by exercising his constitutional authority to fire the director of the FBI for very, very bad reasons? 

KRISTOL:  It would certainly prevent congress --

VAN SUSTEREN:  It`s not going to prevent him from firing, but it certainly doesn`t prevent a grand jury from indicting someone trying to obstruct justice. 

KRISTOL:  Prevent congress more importantly from considering it as impeachable --

DERSHOWITZ:  The Congress has limits as to how it can constrain the actions of the executive.  Congress cannot constitutionally require the Supreme Court to abide by a series of ethical rules --

VAN SUSTEREN:  Alan, to think of it this way would give a president carte blanche to do anything with an FBI to use sort of a private enforcement service.  You can`t obstruct -- a president can`t obstruct justice. 

DERSHOWITZ:  Subject to the constitutional power of impeachment, which is a political power vested in congress.  We just have to remember we have a unique form of tri par tide government which vests equal power in each of the three branches of government and no branch has the power to usurp --

VAN SUSTEREN:  I see your point.  I guess I was thinking more broadly as a form of punishment whether obstruction of justice would lead to the constitutional authority of congress to impeach somebody, the president in this instance. 

DERSHOWITZ:  There is no reviewing of congress`s power to impeach.  The congress can impeach a president and there is no court power to review that. 

VAN SUSTEREN:  Would you agree congress could impeach, hypothetically, a president who was obstructing justice in sort of the traditional sense of what we consider obstruction of justice under the criminal code, would you agree that is possible? 

DERSHOWITZ:  I think congress could say if the president does something that if he were not a president would be a high crime and misdemeanor, the impeachment power extends to that kind of conduct. 

VAN SUSTEREN:  I think we`re all sort of saying the same thing but looking at it very loosely, very differently.  What`s your thought, Bill? 

KRISTOL:  I`m happy when people are saying the same thing.  I think it`s not -- maybe there is a legal criminal case here but that is different from an impeachable offense.  I don`t agree.  I think Alan is overstating the president`s -- if Donald Trump destroyed evidence in the oval office of a crime of an investigation, if he was part of -- if he was under investigation and destroyed evidence, I believe there would be criminal authority there. 

WATTS:  He doesn`t have the legal authority to do that.  But he has the legal authority to fire the director. 

KRISTOL:  No one is doubting that. 

VAN SUSTEREN:  And, of course, you could be impeached for conduct which in a traditional sense would be a crime out in the rest of the world. 

KRISTOL:  Or that would be a violation of crimes and misdemeanors. 

DERSHOWITZ:  Tri par tide system of justice, more complicated than for any individual when you have the president. 

VAN SUSTEREN:  Let me bring in David Priess, former CIA daily intelligence briefer.  Do you have any thoughts on all this? 

DAVID PREISS, FORMER CIA OFFICER:  I think it`s fascinating because we`re talking about different definitions.  The only definitions that matter is the House of Representatives said it is.  General Ford said it best before Watergate, when he said, what is an impeachable offense?  Whatever the house of representatives says it is. 

VAN SUSTEREN:  I think the point that at least I was making is that an impeachable offense would be one that would be obstruction of justice outside the president versus the FBI director --

KRISTOL:  Of course true in a sense.  We call it a common law tradition by now.  We`ve had two articles of impeachment voted on by the house.  We have some sense of what it is therefore appropriate for a president to do and not do in term of impeding investigations by the FBI.  And Donald Trump, people can say congressman said he is a new guy, he is a new president.  He presumably knows when he becomes president what he can and can`t do.  For me, kicking Vice President Pence and Attorney General Sessions out of the oval office and having a one on one meeting with the FBI director is very unusual.  I would love to know how that happened --

VAN SUSTEREN:  It`s unusual to me that if Comey felt pressure that day on February 14th and he wrote a memo that he didn`t do something then, it`s only until after he is fired he has a recovered memory of what it meant.  Without the memo, until I see it. 

KRISTOL:  Going to Attorney General Sessions and saying, we need to launch an investigation of Donald Trump and say, you know, what, I`m worried about what happened, I`m memorialized this, let`s see what happens the next month or two. 

PREISS:  Obstruction of justice may not be in one day.  Putting that memo on the record could be part in a sense of building a case over time.  One event doesn`t break the camel`s back. 

VAN SUSTEREN:  I totally agree.  It is merely something I`m curious about.  That is the question I would want to ask him.  Maybe there is a very good explanation and maybe an explanation by the director. 

PREISS:  He is made it clear he wants to speak publicly on this. 

VAN SUSTEREN:  Which is even more nearest, to my believing him? 

PREISS:  Yes, because he wants to have this in the public sphere because that is where this ends up. 

VAN SUSTEREN:  We`re not even getting this from him, are we, Alan?  We haven`t even seen the memo and we`re getting it filtered through media reports. 

DERSHOWITZ:  And I don`t like the fact that Comey is, if he is involved with this, is leaking information through surrogates.  He ought to be doing it himself.  And I think we ought to be seeing this memo.  We shouldn`t be playing cat and mouse with "The New York Times." I`ll read it to you.  I won`t read the whole thing.  The American public is entitled to see that whole memo.  He own that memo, it belongs to us.  We should see all the memos and be able to make a decision based on the full evidence. 

VAN SUSTEREN:  Totally agree, but it may not be Comey leaking the memo.  It may be those he apparently shared it with.  The one thing he has said, at least has been reported, he wants to testify and he was offered behind closed doors.  He said, no, I want it publicly.  He may not even be the one tonight doing this. 

KRISTOL:  Of course.  He has no choice if they want him to testify, he has to testify.  If they want it to be behind closed doors, they can do that.  I hope it`s open to the public.  I`m glad he is insisting on it but that is not something in his power. 

VAN SUSTEREN:  Everyone stay with me.  Congressman Eric Swalwell is a member of the House Intelligence Committee, and he joins us, Congressman, your thoughts on this? 

REP. ERIC SWALWELL, D-CALIFORNIA:  Good evening, Greta.  Let`s see the memo and let`s hear from former Director Comey.  And if we take a step back, Greta, what`s really going on here, we have serious allegations about Russia`s interference into our past election.  There are people in the United States who are being investigated as to whether they cooperated and worked with Russia.  The best thing we can do now, Greta, is to have an independent commission.  I wrote legislation with Elijah Cummings to do this.  We`re forcing a vote on it this week.  We need to be as independent and credible as possible to understand just exactly what happened, who was responsible and how we can assure the American people we will never put our democracy in a position like this again. 

VAN SUSTEREN:  You know tonight we`re in the awkward position of having two stories collide.  One is the one you`re speaking more directly to, the one that broke yesterday about the president meeting with -- what he shared with the foreign minister of Russia, and the ambassador.  And then we`ve got this other story about this leaked information to the "The New York Times" about a meeting that director Comey had February 14th with the president.  So, we`ve got all these things sort of colliding with each other and people want special counsel, they want special commissions.  It really has gotten rather messy to say the least. 

SWALWELL:  Greta, as this information collides, our constituents are counting on us as stewards of this country to be responsible.  So, we should not be as reckless with the facts as the president has been and that is why I think an independent commission to understand what Russia did, to have a special prosecutor so that the criminal probe is also independent of the White House`s alleged meddling.  That is the best way to go forward before we go any further than that.  That has been obstructed a number of times by the White House, and that is the problem. 

VAN SUSTEREN:  I think in order to get special prosecutor, you have to have a special crime on the table at least for the Russia thing.  Am I right, Alan? 

DERSHOWITZ:  You need to have probable cause that a crime may have been committed and you know we`re getting close, we`re getting close.  And we have to see -- it doesn`t have to be a crime committed by the president.  It`s a crime committed by anybody who could be the subject of the investigation.  And, so, we know already that Flynn may well have committed a crime and others as well.  So, we`re getting close.  I don`t think we`re there yet and we have to do it step-by-step.  But I do think an independent commission which doesn`t require a crime is a very, very good idea. 

VAN SUSTEREN:  All right.  Let`s go to the White House.  Hallie Jackson is standing by.  Halle, what`s going on there? 

HALLIE JACKSON, NBC CORRESPONDENT WHITE HOUSE:  Everything I think is about the only answer you can give, Greta.  At this point we know that the White House -- you`ve talked about the response to the Comey memo news that NBC news has confirmed and reported the existence of this memo.  The White House has said there are parts of this that are not true.  They`re pushing back against "The New York Times" story, they are pushing back against the overall story via reporters who have been, again, for night number two, lined up in a row outside Sean Spicer`s office and by sending this information via the pool as well to distribute it to the wider group, people who cover the White House. 

I just think back to a week ago, Greta.  I think you and I had been talking, we had been here at the White House, and that is when James Comey was fired.  Right around this time seven days ago and to think of everything that has happened in the past seven days, it has been a whirlwind.  The next seven days, the president is out of town tomorrow.  He leaves for a week, his first international trip.  A grueling slogs, you could say, a series of countries over eight days or so.  Major meetings, major summits, key speeches, big moments and it is only Tuesday. 

VAN SUSTEREN:  Yes indeed, it is only Tuesday.  Hard to believe it is only Tuesday.  Thank you, Hallie.  Let`s go to Ken Dilanian.  He has some news. 

KEN DILANIAN, NBC NEWS:  Greta I`ve been speaking with a source close to James Comey law enforcement official.  How did Comey view that request from Trump about Flynn?  Did he consider resigning?  The answer I got was, no, he was disturbed by it, but he immediately documented it.  He did not consider resigning.  He felt he could manage the situation.  He kept that information, though, from the rank and file agents who are working on the Russia investigation because he did not want them to feel chilled.  But it wasn`t the kind of situation where he felt like he needs to take immediate action.  You know, Trump is the president.  He felt, he is running the FBI, he is still continuing to be an independent FBI director.  And he thought he could continue in his job, Greta. 

VAN SUSTEREN:  Do you know -- do you have any idea where this memo is or whether or not we`re going to see it soon? 

DILANIAN:  I think it`s likely that we`re going to see it soon because I believe that the FBI has a copy of it and some other memos that Comey wrote, some which are classified.  The public may not see them, but congress is certainly already drafting the letters to request them, Greta. 

VAN SUSTEREN:  One quick question.  Do you know if Comey told McCabe who testified late last week who is now the acting director? 

DILANIAN:  I don`t know that.  That is a mystery why he would answer the way he did.  I don`t know the answer to that, Greta. 

VAN SUSTEREN:  All right, Ken, thank you.  NBC news chief foreign affairs correspondent Andrea Mitchell joins us.  Andrea. 

ANDREA MITCHELL, NBC NEWS CORRESPONDENT:  This has been an incredible day.  Hallie Jackson just describing what`s been going on and Ken Dilanian at the White House, on top of which they`re planning for this trip and that, should have been the focus for the last two weeks.  You saw that Henry Kissinger came in last week.  They were planning to have the president really drill down and almost have a graduate seminar to prepare for his first foreign trip, a rigorous and very challenging schedule.  He is going to Riyadh first, going to meet with more than 50 Muslim and Arab leaders, Sunni Muslims to try to circle their summit against Iran, trying to exclude and isolate Iran.  But now what has been revealed today is that the Arab leaders, the Saudis have also invited the Sudanese leader, who is known for genocide and war crimes according to the international criminal court --

VAN SUSTEREN:  And I might add he threw you out? 

MITCHELL:  Yeah, but I`ve suffered a whole lot less at his hands for a photo opportunity than thousands of people, untold numbers who have been in refugee camps, who had been displace and tortured by that regime.  For him to be invited to a summit with the American leader is quite startling, the White House having to deal with that tonight.  And then, of course, they go on to Israel.  We know now that Israel was the source of that very sensitive information that the president in an ad hoc way revealed to the Russians.  Israel saying tonight they have no problem with the U.S. and they`re not confirming or denying that.  They`re just looking forward to the president`s visit.  Then the Vatican and NATO, we are told by diplomatic sources the NATO allies are planning for this first meeting with Donald Trump, who has spent the whole campaign calling NATO obsolete, has since revised that, but they are quite concerned that he is not really ready to drill down on the heavy policy load that takes place on the detailed briefings at these NATO meetings.  They`ve been told to keep speeches short for his sake as well as theirs and then on to g7.  This is a daunting trip for an experience commander in chief, for a president who tweets, who speaks off the cuff.  It`s going to be challenging and interesting to cover. 

VAN SUSTEREN:  Let me add about going back to Bashar of Sudan who will be at that event, not invited by President Trump, will be at that event he is under international criminal court, including in the mountains where I`ve actually been and seen what atrocities he does there.  Let me ask you this, he is going on to Israel.  He is going to meet with the Prime Minister.  We had the news today that Israel was the country that apparently was the source of this information that was passed on to Lavrov, the Russian ambassador.  Israel says we`re still great friends.  They`re not worried.  Do you have anything beyond that very public statement? 

MITCHELL:  Well, Israel, of course, is the closest of allies, especially to this president.  There were close intelligence relationships even under Barack Obama when President Obama and Netanyahu did not get along.  That was a very public eight-year spat.  The fact that this is Donald Trump is going to smooth over a lot of those differences.  But at the intelligence level, CIA and Assad there`s clearly a lot of concern, because this is the kind of really privileged information that they would not want to share with Russia because Russia -- especially because it`s against ISIS in Syria, you know, who Russia`s partners there are, Iran, the arch enemy of Israel and of course - excuse me -- Assad. 

VAN SUSTEREN:  Thank you, Andr‚a.  Shane Harris a national security writer for the Wall Street Journal.  Shane, we thought tonight we were going to be talking about this meeting with the Russian ambassador and Russian foreign minister and trying to get a little bit more information about the Russian ambassador.  But the Russian ambassador seems to end up the center of so many of these stories.  Is he a diplomat, or is he a spy? 

SHANE HARRIS, WALL STREET JOURNAL:  Well, that is a great question, and the answer to that depends on who you ask and the fact that there`s been this question, I think, swirling around him is very interesting.  Some lawmakers, I think Senator Warner on the intelligence committee has insinuated he is an agent.  It would be not unthinkable, I suppose, but the Russians have found plenty of other ways to try to recruit agents in Washington.  But clearly he is trying to exert some influence on behalf of the Russian government, and we saw that most notably with the Trump campaign.  Obviously he is now a friend of this administration, so he really has been for many years, but especially now the public face the Russian government in Washington. 

VAN SUSTEREN:  All right, the Russians came out and defended Trump on this disclosure.  What do you make of that? 

HARRIS:  Well, I don`t exactly know how the Russian government would know whether or not it was classified information that was revealed.  That they came out and said it wasn`t classified.  But obviously the Russians, I think, are probably appreciative at some level of knowing what it is that we have to say about the Islamic state`s attempts to get bombs onto airplanes.  They have a lot of concern about that as well.  A Russian airliner was downed in the Sinai in 2015, officials believe by an affiliate of the Islamic state.  But there`s no getting around the very strange optics for sure of this meeting with the Russians and the president in the oval office, and there`s really been no great explanation for why it is the president decided to share this information with them in this way.  There are channels for conveying intelligence and counterterrorism information to the Russians if that is what the administration wants to do.  Clearly the Israelis did not expect that President Trump was going to do that in that meeting. 

VAN SUSTEREN:  Alan, last night you said you thought it was Israel that was the source of this information. 

DERSHOWITZ:  Right. 

VAN SUSTEREN:  That was improperly passed on. 

DERSHOWITZ:  Yes.  I thought so because the Israeli press, months earlier, had speculated that American intelligence had warned the Mossad in Israel to be careful about what Israel intelligence gives to U.S. Intelligence, because American intelligence officials were concerned that the president didn`t know how to handle this kind of material with sophistication.  So I put two and two together and figured out it must have been Israel.  Israel also has this extraordinary ability to get inside terrorist organizations, but it takes years and years and years to develop counteragents, double agents, informants, and all that may be blown.  Whoever was at the top level of ISIS may now be dead or escaping.  But let`s remember one thing.  Although Trump began this, it was the people who leaked it to "The Washington Post" that got the information to ISIS as distinguished from Russia.  If this had been kept secret, if it wasn`t leaked by intelligence officers to "The Washington Post," ISIS and the general public would never have learned about that.  So we have a conflict between Democratic accountability, which favors leaking and publishing, on the other hand, national security, which might have benefited by keeping this information only to the Russians and the American intelligence agencies. 

VAN SUSTEREN:  Let me ask David.  David, you`ve actually briefed presidents on this and you are shaking your head. 

PREISS:  There`s this assumption of machinations going on behind the scenes that intelligence officers are scheming with other services to do this.  There`s the assumption that the president of the United States is the only consideration they have.  The intelligence relationship between the United States and many countries including Israel is robust and diverse and well beyond one person.  If intelligence were not to be shared because of what one person might do with it, what about the thousands of other people that are working together to address common threats and things like that? 

KRISTOL:  But sharing it with the -- I`ve worked for the vice president of chief of staff.  We were in sensitive meetings.  It is jaw-dropping that the president mentioned this in -- it`s one thing to talk about the laptop threat.  That was public.  But to give an indication that we got this from a friend who had presumably a spy or maybe technical means of listening in a city that ISIS controlled -- to say that, you wouldn`t -- I mean that is so far beyond the line of --

PREISS:  Especially --

KRISTOL:  You might say it`s your closest ally.  To say it to the Russians, I really think people who haven`t been in government don`t understand how jaw-dropping that is for Trump to have done that and how really reckless it is. 

VAN SUSTEREN:  When you brief the president, I mean was this -- I mean how much of a mistake was this for the president?  I mean, I realize the consequences of it, but -- is this sort of oversight when you brief the president, do you say, don`t say this? 

PREISS:  The colleagues who I worked with who did brief the president on a regular basis, it depends on what the president wants and what the president needs.  If the president thinks that he needs the actual details of the source in order to make a judgment, then that information will be provided.  How often does the president of the United States need to know the name of an actual source?  Almost never, usually it`s about the information. 

KRISTOL:  This is presented as, this is highly sensitive.  No foreign distribution.  No mention to foreign people. 

(CROSSTALK) 

PREISS:  Why was the president -- 

(CROSSTALK) 

VAN SUSTEREN:  Alan`s got a question for you.  Alan, go ahead. 

DERSHOWITZ:  Why is the president told the city?  That seems to be irresponsible by the intelligence agencies to have told the president the city where this information came from.  That could only cause mischief. 

KRISTOL:  The president Alan, don`t repeat things they`re not supposed to repeat to foreign governments.  We were told a lot of things we didn`t say to other people. 

(CROSSTALK) 

PREISS:  To directly answer a question of the United States about the foundation of the intelligence on which they`re being briefed.  That strains the relationship between the White House and the intelligence community more than it`s already being done. 

VAN SUSTEREN:  Let me bring back Clint Watts, former FBI Special agent.  Clint, you know, obviously a lot of turmoil going on as we`re trying to cover the story inside the FBI, can you give me confidence that whatever investigations they`re working on any of these topics that they are un- poisoned by the noise that is going on, or should we be concerned? 

WATTS:  I think the FBI agents are going to keep going with their investigations.  That is what they do on a daily basis anyways.  The politicians on each end of Pennsylvania Avenue need to get out of their way.  It`s been pretty consistent between the White House and congress that they`re called to testify nearly every single week whether it`s Director Comey or now McCabe.  The investigation will proceed.  The agents will do what they`re supposed to be doing.  I think the real question is can the DOJ be impartial in these investigations?  Ultimately the FBI has to bring any of these charges, any subpoenas, and any indictments forward to either a U.S. Attorney or someone in the National Security division of the Department of Justice.  Will they actually do the --

VAN SUSTEREN:  Do you have that confidence?  Do you have that confidence tonight of this DOJ? 

WATTS:  No, I don`t.  I don`t understand how Attorney General Sessions puts his name on the memo to fire Comey and yet recuses himself of Russia and then the president shows up the next day -- 

VAN SUSTEREN:  The memo said -- he recused himself, whether you believe this or not, he recused himself on the Russian thing.  The memo said he was being bumped for the e-mail. 

WATTS:  The very next day Greta, the very next day the president came forward and say this is about the Russian investigation, so -- 

(CROSSTALK) 

VAN SUSTEREN:  I`m not endorsing it. 

WATTS:  Whether Sessions signed that or not, the facts don`t bear out that that is the case.  Whether it cannot be impartiality whenever one is involved, Sessions involved in the firing on the one day and then the very next day, the president says the whole reason I did this has nothing to do with what Sessions signed.  It has everything to do with the Russia investigation.  The two of those can`t be together.  They`re mutually exclusive events.  Based on this, I don`t the DOJ can accurately and be impartial in terms of how they are dealing with the FBI investigation. 

VAN SUSTEREN:  I must say that I -- I share your suspicion.  I think everybody tonight is so unconcern uncertain.  There are a lot of facts that we still don`t know.  There`s a lot swirling around.  There certainly is a lot of smoke, and people have made these stories that are disturbing, but anyway, thank you all for joining us.  And to the viewers thank you for watching, I`ll see you back here tomorrow night 6:00 p.m. Eastern.  Stay with MSNBC all night for coverage of this breaking story.  "Hardball" starts right now. 

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED. END