Can a government function without secrecy?; McMaster rounds out military-heavy national security team

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Can a government function without secrecy?

On 'Journal Editorial Report,' former Attorney General Michael Mukasey reacts to President Trump scolding FBI for failing to crack down on leaks

This is a rush transcript from "Journal Editorial Report," February 25, 2017. This copy may not be in its final form and may be updated.

(BEGIN VIDEO CLIP)

PRESIDENT DONALD TRUMP: We inherited a national debt that has doubled in eight years. And we inherited a foreign policy marked by one disaster after another. We don't win any more. When was the last time we won? We're taking a firm, bold and decisive measure -- we have to -- to turn things around. The era of empty talk is over. It's over.

(CHEERING)

TRUMP: Now is the time for action.

(END VIDEO CLIP)

PAUL GIGOT, HOST: Welcome to the "Journal Editorial Report." I'm Paul Gigot.

That was President Donald Trump in campaign mode Friday as he addressed the annual Conservative Political Action Conference. The speech capping off a tumultuous first month in the White House, and coming as the president prepares to address a joint session of Congress for the first time. So, what can we expect from that high-stakes speech on Tuesday?

Let's ask Wall Street Journal columnist and deputy editor, Dan Henninger; columnist, Kim Strassel; editorial board member, Joe Rago; and columnist, Bill McGurn.

Dan, let's start with you.

Let's step back before we get into that speech and where are we in terms of how the president has done in this first month?

DAN HENNINGER, COLUMNIST & DEPUTY EDITOR: Well, Paul, it's actually 36 days. I know it feels like a month, if not a year, but we're grinding forward. And it's been a tumultuous first month. There's been a lot good to talk about. I mean, some of these executive orders on deregulation, I think, are lifting the stock market without question. But there's been a lot of controversy too, and to my mind, the pivotal event was the botched rollout of the executive order on immigration several weeks ago. That is what propelled a lot of these protests, it energized them, gave the press a lot to talk about, and it's kind of been a nonstop battle running alongside the good parts of the Trump presidency with both the media and with these energized progressive protesters. So it's been a wild ride.

GIGOT: Kim, I agree with Dan. I think that was probably the low moment because it gave the appearance of incompetence, not having vetted the order properly and also galvanized those protests. The best - as long as Michael Flynn's resignation as national security advisor. That would be the other really bad moment.

As for the best moment, I guess I have to go with Neil Gorsuch's nomination for the Supreme Court.

What would you choose?

KIM STRASSEL, WASHINGTON COLUMNIST: For a lot of people who went out and voted for Donald Trump, that was one of the main reasons, to make sure that control of the Supreme Court was kept. Not only has he nominated someone, but somebody that, really, it is hard to find anybody along conservative spectrums who can find anything to criticize about him.

But done a lot else, too, in terms of actions. The pipeline orders. He's already signed two congressional review action disapprovals from Congress, one getting - ending an Obama rule that had to do with the streams that was designed to shut down coal. Another one that had to do with energy companies and disclosure. It was a huge hit on the energy industry.  You've got 10 more that the House has passed that will head to his desk as well. And some of his nominations have made it through. We are continuing to get executive orders aimed at rolling back the regulatory state.

GIGOT: Is there any lessons, Bill, from that Neil Gorsuch nomination, which seemed to go very well, for the broader lessons for the White House?  Because it was a different process. They tapped Leonard Leo, at the Federal Society, an outsider. They said you get the president a list in the campaign, when he was the candidate, of the nominees. Then when he was president, he said, let's narrow it down and pick it. And the White House staff, with all of its differences and everything, was not central to it, other than the general counsel.

BILL MCGURN, COLUMNIST: I think he had an advantage, thanks to Ted Cruz, who challenged him in the primaries about the Supreme Court. So he produced a list. So they were much better prepared as long as they stayed with that list. It was almost unprecedented to have a mandate like that for a Supreme Court nomination. So, yes, it's very different and it shows the importance of being on top of what you want to do, and not leaving a lot of loose ends.

GIGOT: What about the -- we hear, Joe, people say chaos, but there is certainly disagreement. There's at least six, that I count, power centers in the White House.

JOE RAGO, EDITORIAL BOARD MEMBER: Probably more.

GIGOT: Probably more. So, and that I think it accounts for some of the disagreement and confusion, and maybe some of the leaks, too.

RAGO: Yeah, the phrase "competing power centers" has become almost a media cliche at this point. But Trump's management style is to -- he thrives on this chaos. And he thrives on disagreement --

GIGOT: He likes that.

RAGO: -- where he's the decider. He gets energy from it. And he likes being the only one who knows what's going on. There could be some benefits to that style going forward. But as we've seen this tumultuous first month, a lot of risk, too.

GIGOT: The other thing, Kim, is filling out the government. You said he's got his cabinet, most of it, but the truth is, the sub cabinet, these guys are home alone. And the Pentagon and the statement Department, they have no help. And why is it taking so long to get these people in? You need those sub cabinet people to get your agenda through.

STRASSEL: Yeah. This is fairly astonishing, Paul. You look, for instance, at Secretary Mattis, the defense secretary. He was put into his post on day one, on Inauguration Day. There is, so far, no a single sub cabinet nomination for Democrats to even block in the Senate

(LAUGHTER)

-- because we don't have the names yet. Not an undersecretary or a deputy secretary and an assistant secretary. That's because of disagreements among these power centers that Joe was just referencing. You have some of the nominees as well, like Mattis, who have wanted to put in entirely their own teams, looked very widely in terms of the people they want. You have a White House that wants more control over who those names are. There is disagreement and friction there and it is holding up the functioning of the government and new reform efforts because there's nobody there to implement Trumps ideas.

GIGOT: Let's listen to President Trump on the media on Friday.

(BEGIN VIDEO CLIP)

TRUMP: I want you all to know that we are fighting the fake news. It's fake, phony, fake.

(CHEERING)

TRUMP: A few days ago, I called the fake news "the enemy of the people," and they are. They are the enemy of the people.

(CHEERING)

TRUMP: Because they have no sources, they just make them up when there are none.

(END VIDEO CLIP)

GIGOT: It is a familiar strategy, "enemy of the people."

MCGURN: Right.

GIGOT: Top of mind. But, Bill, President Bush would never had used that kind of language, at least not in public. Does that work politically?

MCGURN: Yeah, I think it worked at CPAC.

GIGOT: At CPAC.

MCGURN: Let me make a confession. I met my wife at CPAC. I'm very familiar. It's a young group.

The more important thing at CPAC is, is Mike Pence who said we're in the business of keeping promises. And what, going forward, what do they need? They need a salesman in the White House. They need him to pick what kind of health care plan he will pick, what kind of tax reform. That is what they really need. And that is what maybe we will see next week when he addresses Congress.

GIGOT: And he needs an explainer, Joe, at the congressional event?

RAGO: Yeah. He needs to explain, but I agree with Bill, he needs to make a decision. Where are they on the border tax and the House tax reform bill, for example. Congress needs direction. It needs presidential leadership in order to move any kind of legislation. And until they come out with some definitive statements, presumably on paper, nothings can happen.

GIGOT: All right, thank you all.

Still ahead, President Trump lashing out at the FBI over continuing leaks from the intelligence community. So can the government function without secrecy. We will ask former attorney general, Mike Mukasey, next.

(COMMERCIAL BREAK)

GIGOT: President Trump lashed out at the FBI late last week for failing to crack down on leaks, tweeting, Friday, quote, "The FBI is totally unable to stop the national security leakers that have permeated our government for a long time. They can't even find the leakers within the FBI itself.  Classified information is being given to the media that could have a devastating effect on the U.S. FIND NOW."

The tweets come amid reports of conversations chief of staff, Reince Priebus, had with bureau officials about a New York Times article on the Trump's campaign's ties to Russia.

Michael Mukasey served as the 81st attorney general of the United States.  He joins me now.

Judge, welcome.

MICHAEL MUKASEY, FORMER U.S. ATTORNEY GENERAL: Good to be here.

GIGOT: How concerned should we be about leaks in government?

MUKASEY: I think, generally, we should be pretty concerned because they have gone on an accelerated basis. The press can't be relied upon not to print things.

(CROSSTALK)

GIGOT: Sure. We benefit from it, no question.

MUKASEY: And asking for people to restrain themselves in these kinds of situation is asking for a lot. It's the people who have the secrets who out to be more careful about keeping them.

GIGOT: But here is a question I have. Democracy needs transparency and it's going to happen. Every administration has the same issue. The leaks are so bad. And they never stop. They keep continuing. Can he really do much about it?

MUKASEY: They really divide into a couple of categories. Some are leaks for different purposes. Typically, it's information that's tantalizing or even newsworthy.

GIGOT: Or politically.

MUKASEY: Or politically to somebody. Those you never stop. The old saying, the ship of state is the only ship that leaks from the top.

(LAUGHTER)

On the other hand, there are leaks that disclose either explicitly or simply because, if you know the surrounding circumstances you know the setting, disclose national secrets. For example, disclose how it is that we eavesdrop on foreign governments.

GIGOT: Right. Those can be very dangerous.

MUKASEY: They can be very Dangers.

GIGOT: What about the leaks that were the transcripts of the discussions with the Russian ambassador. Those presumably had a FISA court order to listen in on that Russian ambassador and Michael Flynn would've been incidental collection, unless it was an actual order to listen to him. But leaks of those transcripts are very rare.

MUKASEY: They are. And also at times dangerous because depending again on the setting in which the conversation took place, the Russians may be more aware than they were before of how it is that we're eavesdropping on them and take pains to squeeze it off.

That said, I think at this point, it would be helpful to everybody to disclose the entire transcript of that conversation so we find out what was said, what wasn't said, and end the speculation.

GIGOT: Right now, we're relying on the accounts of people who claim to have seen the transcripts talking to reporters who then report what they are told.

MUKASEY: Right.

GIGOT: Not the actual transcripts.

Let's move to the FBI and this discussion with the White House and Reince Priebus, the chief of staff. Is it kosher, legally or just in ethical terms, for a White House chief of staff to discuss with the FBI director and deputy director issues concerning what they may have told The New York Times?

MUKASEY: It is kosher for him to try. It's not kosher for them to respond to what they told The New York Times. Or if they told The New York Times, then, obviously, they should not be telling The New York Times.

GIGOT: Right. Sure. But it is all right for -- I'm trying to get this -- understand when- - because there's so many people that say the Justice Department is independent of the White House. It's really not. It's part of the executive branch.

MUKASEY: It's part of the executive branch.

GIGOT: But there is a line that you don't want to cross, I assume, and you would know, because you were sitting in that chair, when the White House calls you up and says something they shouldn't be saying.

MUKASSEY: Right. The instructions we put in place when I was there said there were only two people that could communicate with the White House on the subject of particularly investigations.

GIGOT: OK.

MUKASEY: And the only person they could communicate with was the White House counsel. And those two people where the attorney general and the deputy attorney general.

GIGOT: If you were at the White House chief of staff or senior a senior staff official, you didn't take their calls?

MUKASEY: Correct.

GIGOT: And why is that. Why would you cordon that off?

MUKASEY: Because you don't want the White House exercising political influence over particular cases. The president has the authority, obviously, to free people and trade people. We've seen that.

GIGOT: Sure.

MUKASEY: That's a different thing. But when the White House tries to lean on the Justice Department to do something or to stop doing something or when U.S. Senators or Congressmen do, as has happened, then you have to have a bright line that says that when an assistant U.S. attorney or U.S. attorney, or anybody else senior in the Justice Department, gets a call like that, the proper answer is, thank you very much for your interest, I will refer to the person who can talked to you and he'll get back.

GIGOT: All right, briefly, we have this executive order that was overturned but the ninth circuit. Now it's going to be reissued, we're told. What do they need to do to make it legal?

MUKASEY: That is, of course, up to the ninth circuit.

(LAUGHTER)

It would seem what they would need to do to make it legal is to carve out people who have visas and people who had green cards. But in point of fact, I believe the president has the authority to bar people from any particular place or several particular places, that he has the inherent authority based on his powers of Article II, and that he has explicit authority based on the statutes that Congress passed, giving him the right, if he believes it's in the national interest, to bar anybody from coming into the country, from a particular place or any class of people.

GIGOT: I agree with you. But the ninth circuit doesn't. They will have to narrow it in a way just to be able to get past it.

MUKASEY: Right. And hopefully, people who took down this notion that somehow it has a religious test basis for it, because that's ridiculous.

GIGOT: All right, thank you, Judge. Appreciate you being here.

When we come back, as the administration announces plans to step up its deportation efforts, is it a public safety necessity or law enforcement overkill. Our panel debates, next.

(BEGIN VIDEO CLIP)

TRUMP: We are getting the bad ones out. These are bad dudes. We are getting the bad ones out.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

GIGOT: The Trump administration is stepping up its border enforcement efforts this week with Homeland Security Secretary John Kelly releasing a pair of memos fleshing out the administration's immigration authority.  Under the new guidelines, any undocumented immigrant who has committed even a misdemeanor could be subject to arrest, detention and removal from the United States. The memos also call for an additional 5,000 Border Patrol agents and 10,000 ICE agents to assist with removals. But during a visit to Mexico on Thursday, Kelly insisted that there will be no mass deportations.

(BEGIN VIDEO CLIP)

GEN. JOHN KELLY, HOMELAND SECURITY SECRETARY: Let me be very, very clear, there will be no, repeat, no mass deportations. Everything we do in DHS will be done legally and according to human rights in the legal justice system of the United States. The focus of deportations would be on the criminal element that have made it into the United States.

(END VIDEO CLIP)

GIGOT: We are back with Dan Henninger, Kim Strassel, Joe Rago and Bill McGurn.

You heard the Homeland Security secretary say they're only focusing on criminals. But they redefined in this order criminals who are eligible for deportation --

MCGURN: Right --

GIGOT: -- to be anybody who has fake documents.

MCGURN: In principle, I find it hard to object to enforcing the law. I think that's really what has -

GIGOT: There's a lot of laws that aren't enforced to the full extent of the law.

MCGURN: There are. But I mean, it's the other thing they don't know. On the other hand, they say no mass deportations. On the other hand, there's an infrastructure being built and a legal infrastructure that makes -- I think it's like a lot of things with Donald Trump. We will have to see what he really means.

GIGOT: What about the political impact if they do decide that they will deport anybody who goes through a red light or for a speeding ticket or something.

MCGURN: Right.

GIGOT: That will be really disruptive and usually expensive.

MCGURN: Yeah. I think it will be tough. But there are a lot of bad people that are here doing bad things. And if he concentrates on that, the gang members or something, he'll be OK. But it's grandma working, I think it'll be --

(CROSSTALK)

GIGOT: I want to focus in one what the cost of this is, Joe, because it's having $4 billion a year just for the ICE agents and Border Patrol. That does not include the cost of extra judges for the deportation hearings, which the law requires that they have. And there is a backlog of 500,000 already for these. Then you have the wall. We're talking about tens of billions maybe.

RAGO: We're talking about a much larger government. If you look at the deportation hearings, for example, the average wait is something like 600 days to get your case resolved. It's a larger and more intrusive enforcement mechanism in government.

GIGOT: Kim, what about the politics of this? I guess it fulfills a campaign promise. Donald Trump's voter support this. But it's interesting he also didn't repeal the so-called Dreamers executive order by Obama, affecting those children who came to the United States as children brought by their parents. And is very interesting because I think that would've created a much bigger uproar.

STRASSEL: Yeah, you ask about the politics, what is interesting about these memos is, in fact, how closely Donald Trump is hueing to public sentiment. When you ask most people about whether or not you think he should deport criminals, that's a pretty widely held view. Pretty popular out there among America this idea of doing something about those who forge documents as well.

But you lose a lot of support on this question of Dreamers and also the idea of mass deportations, picking up grandma, going into sacred spots like churches to get people. DHS was very careful about saying those sorts of things would not happen.

GIGOT: Dan, what about the blowback in Mexico this week? President Trump sent two emissaries, Rex Tillerson, the secretary of state, and the Homeland Security secretary, you heard, to Mexico. They did not get a very good reaction. It was pretty chilly. And the Mexicans protested. And now the Mexicans are saying we are going to link any help we make on security to any discussions we have about the North American Free Trade Agreement.

HENNINGER: It's a problem, Paul. Let's look at this. You could not had designed a better team to go down there and talk to the Mexicans under these conditions than General John Kelly, former head of Southern Command, was in charge of all of Latin and South America, concentrating on drug enforcement, and Rex Tillerson, the former CEO of Exxon, with extensive business interests down there at the highest level. They're down there trying to negotiate their way through some of the tensions that have been created. Meanwhile, the same day, President Trump is talking to manufacturing executive in the White House, saying, well, if we have a relationship with Mexico, it's good, if we don't, then we don't.

(LAUGHTTER)

I think, Paul, this does raise the question of whether, indeed, Mr. Trump wants to have a relationship with Mexico or he would be just as happy to have them go their own way. I know there are dire applications for that.  But it's hard to explain getting in front of these two.

GIGOT: He may not want a relationship with Mexico. Mexico is going to have one with us

MCGURN: Yeah.

GIGOT: Because we share the border.

MCGURN: And it's also far less developed. And I'd go further. I think President Trump and the United States have an interest in a prosperous Mexico.

GIGOT: Yes.

MCGURN: Especially if you don't want people illegally coming over. So we have a stake in trade in Mexico. So you have, as usual, contradictory threads in what the president says --

(CROSSTALK)

GIGOT: And when you use Mexico as a politic foil domestically in the U.S., don't be surprised if they decide to use the Americans as a foil in Mexico and have a counter reaction.

All right, still ahead, President Trump picks a military strategist for his national security advisor. So just who is H.R. McMaster, and what will he bring to the NSC? General Jack Keane knows him well, and h will tell us, next.

(COMMERCIAL BREAK)

GIGOT: President Trump on Monday announced his selection of Army Lieutenant General H.R. McMaster as his new national security advisor following last week's resignation of Michael Flynn. The three-star general rounds out the administration's already military heavy national security team, joining former Marine General Jim Mattis at defense and retired Marine General John Kelly at Homeland Security.

Retired four-start General Jack Keane is the chair of the Institute for the Study of War and a Fox News military analyst.

General Keane, great to see you. Great to have you back here.

GEN. JACK KEANE, CHAIR, INSTITUTE FOR STUDY OF WAR & FOX NEWS MILITARY ANLAYST: Glad to be here, Paul.

GIGOT: Let's talk about the fact that H.R. McMaster does not know President Trump, and vice versa. I think the first time they met was this week. How important is it for the president and his main security advisor to know each other better than that?

KEANE: Well, I don't think it's necessary in terms of making the decision.  He talked to a lot of people who knew McMaster. I happen to speak to McMaster prior to the interview and he said, hey, boss, do you have any advice.

(LAUGHTER)

And I said, listen, just go in there and be yourself. You're a larger- than-life personality. And let them see there is actually an 800-pound gorilla in the room with him. Just be yourself.

And President Trump responds to strong personalities, as you already know.  That was probably part of this. But McMaster is incredibly bright, very articulate, fights persuasively for his ideas. He is a bit of an iconoclast. He's willing to go against the grain, and has demonstrated it.  And while he has displayed physical courage in combat, the thing I mostly applied for him is his moral courage to do what he thinks is right. There is no risk aversion in this guy. And I wish we have more general officers just like him.

GIGOT: OK. That's very significant in a role where he is going to be against a big personality in the president and he is going to have to say sometimes -- I assume you would think he's have to say, Mr. President, I think you are wrong on this and we need to look in a different direction.

KEANE: There is no doubt the president will get that kind of feedback from H.R. He already knows it, I'm sure.

I personally think this president, having dialogue with him a couple of times myself, really welcomes that kind of feedback. And he can be persuaded by other peoples' ideas if there are facts there to support it.

GIGOT: How important is it for a national security advisor to be able to appoint his own staff, because he's coming in there now after Mike Flynn appointed many of these people and with holdovers from the Obama administration. Does he need to be able to choose his own staff?

KEANE: No.

GIGOT: No?

KEANE: Here's why. What we're used to in the military culture, Paul, we take over organizations, companies, battalions, brigades, division. That organization is standing there as it exists and with a new person in it.  We never go in there and, wholesale, start to get rid of people. What we try to do is add value to that organization, grow and develop the people, and strengthen the organization. That's what he's going to do here with the NSA. He already knows there's very talented people. He knows some of them. And I don't see him making those kinds of changes.

Now, when there are performance issues or capacity issues, certainly that will happen. He certainly will make a change.

GIGOT: Now, Steve Bannon, the political strategist, a lot of controversy in Washington over his presence on the National Security Council. Should General McMaster -- and the White House said this week, the White House spokesman said, look, if General McMaster wants Steve Bannon off, President Trump would consider it. Do you think he should ask for Steve Bannon to leave the NSC?

KEANE: Well, I think putting him on there was largely a mistake in reducing the role of the chairman. It created so much questions about how the body will function, why is it functioning differently than in the past.  If there was a reason for Mr. Bannon to attend a particular NSC meeting among the principles because of the importance of the subject, there is certainly precedent for that having happened in the past with other presidents.

(CROSSTALK)

GIGOT: David Axelrod sat in on some of those meetings --

(CROSSTALK)

KEANE: Yeah, absolutely so. I actually think there likely will be a change here. But who instigates it, I'm not sure. I think it was unnecessary to create a little bit of loss in confidence in this process of the NSC.

GIGOT: Let me ask you about the issue that I pick up from a lot of civilians. You are a former Army officer yourself. A lot of civilians looking at the top-heavy military nature of the security team and say, you know what, they are all capable men, but is it too top-heavy with military officers because -- and will that mean that the president is not getting a broader view of foreign policy from folks who have spent their careers in the military.

KEANE: First of all, I think it has to do with the times. In the Defense Department, in particular, we're involved in two conflicts. We have a president here who wants to win wars, not just end them. We need to rebuild the military, and so he's got a military general as secretary of defense. Homeland Security, with all of the issues that we have with internal security in this country and on our border. You put a very strong leader in charge of that.

I think there is some downside here. And just be honest about it, these are acquired skills. But in Rex Tillerson and Jim Mattis and also General Kelly, and also with H.R. McMaster, they don't have the necessary political skills that many people have had in those positions in the past. They worked in Washington they know how it works. They know how things are shaped politically in town here. I think that is a little disadvantage.  Obviously, Bob Gates, Leon Panetta, secretary of defense, had all those skills and they were very accomplished at them, as have previous people in the other positions. All that said, I do believe they can acquire the skills. I think we're making a little bit too much out of it. And certainly, have a military general in a national security position doesn't correlate at all to that person's mind to use military force more than anybody else.

GIGOT: No. It might be the opposite.

KEANE: Yeah.

GIGOT: In fact, H.R. McMaster wrote that book, "Dereliction of Duty," which criticized the generals of the Vietnam era for not challenging Lyndon Johnson and Robert McNamara's Vietnam War strategy. That got to be part of H.R. McMaster's thinking.

KEANE: Yeah, absolutely. The other part of that criticism certainly was the fact that not everybody was participating in these councils when they were talking about the Vietnam War strategy. And he called that out as a major failure. So think of that now. He is coordinating the NSC, and the key to the NSC working effectively is that everybody has to be a player, everybody has to participate, everybody's views have to be heard. That will be a good thing.

GIGOT: All right, General Keane, thanks very much for here.

KEANE: Good to talk with you, Paul.

GIGOT: Still ahead, as protests erupt at town halls across the country, we will look at who and what is behind the unrest.

(BEGIN VIDEO CLIP)

(CHANTING)

(END VIDEO CLIP)

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

(CHANTING)

SEN. TOM COTTON, R-ARK.: Let's take a couple more comments and questions about health care.

(SHOUTING)

COTTON: Everyone in this room has been hurt or helped.

(SHOUTING)

(END VIDEO CLIP)

GIGOT: That was the scene Wednesday night in Bentonville, Arkansas, at a town hall meeting sponsored by GOP Senator Tom Cotton. Republicans across the country are being greeted this week by angry protesters in their home districts. But the Trump White House is expressing skepticism. The president referring to "so-called" angry crowds in a tweet this week, saying the protesters in many cases where liberal activists. Press Secretary Sean Spicer also questioned the grassroots nature of the protests at a White House briefing.

(BEGIN VIDEO CLIP)

SEAN SPICER, WHITE HOUSE PRESS SECRETARY: I think some people are clearly upset butt there are is a bit of professional protesters manufactured base in there. It's not a representation of a member's district or an incident.  It is a loud group, small group of people, disrupting something in many cases from media attention.

(END VIDEO CLIP)

GIGOT: We're back with Dan Henninger, Kim Strassel, Joe Rago and Bill McGurn.

Joe, are these real or are they invented by activists?

JOE RAGO, EDITORIAL BOARD MEMBER: I think they're real. I think they're organic. They are obviously activists. They're organizing themselves on social media. And we live in a political --

(CROSSTALK)

GIGOT: Many of them are Democrats.

RAGO: Sure. We live in a political culture right now that rewards ever more hysterical and performative displays of emotion.

(LAUGHTER)

They decided that making a spectacle at these town halls is a way to get their arguments into the political bloodstream.

GIGOT: Kim, what are they telling us, these protests, about where the Trump administration is?

KIM STRASSEL, WASHINGTON COLUMNIST: This is part of the Resistance. This is the left's new way of dealing with Donald Trump. It's not to engage him on the Senate or the House floor. It's not to try to cooperate with him in any way. It's a permanent protest, all the time. And as Joe said, look, are these feelings are deeply held that some of these people have? Yes.  But are they there because they really think that they're going to change minds? No, they are there to make things difficult and get on TV.

GIGOT: But, Dan, do they signal a real genuine groundswell of the kind that would represent a majority sentiment in the United States or is this a small, but vocal minority group?

DAN HENNINGER, COLULMNIST & DEPUTY EDITOR: I would say a small, but vocal minority group. It could grow. Thursday, in Los Angeles, there was a lot of this sort of thing, much of it led by the Service Employees International Union, the public-sector union. It's a real test of left- wing activism. This is what the left does now. Now, this is what the Democratic Party is associating itself with. They held these demonstrations in front of Chuck Schumer's house twice to drive him over to their side. And whether there is an agenda there, other than continuing Barack Obama's agenda, that remains to be seen. But they're simply going to make a lot of noise at this point and try to make the Republicans incapable of operating.

GIGOT: But didn't Democrats, Joe, make the mistake of ignoring the criticism in 2009 and 2010 that the Tea Party was organizing? They dismissed it then and they lost 63 seats in 2010.

RAGO: I think it's always a mistake to dismiss energy in politics. It is the most committed people who end up being the most consequential.

GIGOT: So how, Bill, should Republicans respond?

BILL MCGURN, COLUMNIST: I think what Dan said is absolutely right. This is what Democrats do. Some of them think they are replicating the Tea Party.

GIGOT: Yes.

MCGURN: I think this is a lot more Occupy Wall Street than Tea Party, right?

GIGOT: But in terms of the energy that Joe --

(CROSSTALK)

GIGOT: -- the energy, that's there.

MCGURN: That's there. And the danger is, I think, if I were a Democratic Senator, I would look at the demonstrations that Dan referenced outside Chuck Schumer's house. This is something that could consume a lot of Democrats. I think also Republicans have to worry, a lot of guys, if this is a Democratic crowd, they have to worry about the demonstrations that might come up, they do something to make good on their promises about ObamaCare. They need have explanations. When people are being shouted down, that's a different story. But they need to be able to explain what they want to do and answer the questions that are going to come from people saying, my mother had this, and now she's off, and you just want to take away stuff from us.

GIGOT: Right.

And, Kim, some of the strategy is to separate Republicans in Congress from Donald Trump. Is that a strategy that some of them should employ?

STRASSEL: I think everyone is going to have to look at their own districts. We've really seen it happening a bit, Paul. For instance, some of the Senate Republicans who decided to vote against the nominees. This goes to why Donald Trump needs to be making explanations so that he can keep people on the side and not put him in this position.

GIGOT: Thank you, Kim.

When we come back, a federal appeals court upholds Maryland's ban on semi- automatic rifles in a ruling that could reshape the gun rights debate and the battle over President Trump's Supreme Court nominee.

(COMMERCIAL BREAK)

GIGOT: A federal appeals court this week upheld Maryland's ban on 45 kinds of semi-automatic weapons and its 10-round limit on gun magazines. In a 10-4 ruling, the Fourth Circuit Court of Appeals in Richmond, Virginia, said the guns banned under Maryland's law aren't protected by the Second Amendment because they are, quote, "weapons of war."

Kim, how could this ruling reshape the gun rights debate?

STRASSEL: First, to the ruling itself, you could only get this if you completely ignore the Supreme Court's decision in Heller, in which it was very clear what the Supreme Court did there is, A, establish an individual right to bear arms, and, B, set up some tests saying that, in essence, if a weapon, a firearm was in common use, and it wasn't dangerous or unusual, then it was generously erred that you are allowed to have it. This completely ignores the Supreme Court and sets up its only test, basically, saying, if any gun you look at it and looks like it would be most appropriate or useful for the military, then you can ban it. This completely thwarts the Supreme Court. In puts a new highlight on why it's very important to get Judge Gorsuch install in that position, because this is how the left is going to be bringing these cases up to the Supreme Court.

GIGOT: Yeah, they invented -- the fourth circuit, Dan, invented this military test. What they're doing, as we've seen as the appellate court level, because the Supreme Court has been reluctant to take more challenges, consider more gun cases in recent years, what is happening is these appellate courts are moving to do what Kim said, which is to gut the Heller decision.

HENNINGER: Yeah. I think the key phrase, as you just said, was "invented this thing called military use." It's one of the things that modern liberal jurisprudence does. If you can't find something in the precedent, it will invent them. And this makes it very important for us to understand why the Republicans opposed approving Merritt Garland when he was nominated by Barack Obama. One of the things, interestingly, that Steve Bannon said at the CPAC conference was Obama, President Trump's goal was going to be deconstructing the administrative state. Merrick Garner was a builder --

GIGOT: Garland.

HENNINGER: -- Merrick Garland was a builder of the administrative estate.  Neil Gorsuch will help to deconstruct the administrative state. It shows how crucially important that nomination is.

GIGOT: And, Joe, this is what would've been happening at the Supreme Court if Hillary Clinton would had won and appointed the majority justice, a liberal majority. This is where they would have gone on the Second Amendment.

RAGO: Oh, yeah. There is no question that they want to overturn Heller on the individual right to bear arms. They want to overturn Citizens United on free political speech. You can sort of go down the list and there's a whole bunch of precedents that the 2016 election vindicated.

GIGOT: Those appellate courts, they become ever more important because of what Dan said, which is, they are now much more aggressive on finding rights and ignoring precedent if they don't like it. And they think they can get away with it, which has been happening at the ninth circuit for a long time. So how did Barack Obama remake the appellate court?

MCGURN: He changed the court. He had about 55 appointments. To these appellate courts, about a third.

GIGOT: Wow.

MCGURN: So over time, there's 13 of these courts, and over time, he came in, there was only one with a clear Democratic majority, and now there are nine. That's why you get these kinds of decisions.

And the gun case is particularly good because the Second Amendment is sort of the redheaded child for liberals. It just doesn't really matter --

GIGOT: It's the amendment that doesn't matter.

(LAUGHTER0

MCGURN: It doesn't matter. And then you marry that with assault weapons, the definition made up. It's kind like Justice (INAUDIBLE). Same thing.  I can't define it, but I know it when I see it. That's how they approach guns.

GIGOT: Kim briefly, where does the Gorsuch nomination stand? Is he on the road to confirmation?

STRASSEL: He's on the road to confirmation. You have Democrats openly admitting at this point that there isn't any way they can stop them. And there's an acknowledgment that even if they were tried to filibuster, Republicans would blow that up. So, I think you see him heading for the court.

GIGOT: All right, thank you all.

We have to take one more break. When we come back, "Hits and Misses" of the week.

(COMMERCIAL BREAK)

GIGOT: Time now for our "Hits and Misses" of the week.

Kim, start us off.

STRASSEL: Paul, this is a hit for Bow Bow (ph), a giant panda who, after spending the first three years of his life in Washington's National Zoo, this week went back to China. This is part of a really innovative program in which the Chinese government loans out giant pandas and then taps into other country's technology to try to breed animals that are notoriously difficult to breed in captivity. It's been a giant success for an animal that really has otherwise struggled in the wild. It's just another example of the environment getting better.

GIGOT: Thank you, Kim.

Dan?

HENNINGER: I'm giving a hit to Treasury Secretary Steve Mnuchin for saying an interview this week that a strong dollar is good for the United States.  The secretary said it shows confidence in the U.S. economy. The reason it's important, Paul, is because there's always a drumbeat in Washington, at least among Republicans, for a weaker dollar to stimulate imports.  Let's just hope that Secretary Mnuchin's boss gets the message, a strong greenback means a strong America.

GIGOT: All right.

Joe?

RAGO: Paul, a hit this week to Icelandic president for inspiring the debate we never knew we needed about government control of pizza toppings.  He joked that he wanted to outlaw Hawaiian pizza. The remarks went viral.  Amid a global uproar, he had to say, I don't have this power, I don't want this power. It's a good thing the government can't ban foods. But he went on to say that instead of pineapple, he favors fish products on pizza. And if that's the case, I say send in the pizza police.

(LAUGHTER)

GIGOT: Bill?

MCGURN: Paul, I can't top that. But a hit to former Stanford Provost John Etchemendy. At a time when political correctness was strangling our universities, he made a speech to Stanford's trustees saying they have to show more courage in standing up to the intellectual intolerance and so forth. He calls it the threat from within. And he says people have to stop treating other people who have a different point of view as though they are evil. It was a great speech. But it speaks to his point that probably only a former provost could give it.

GIGOT: I'd ban Hawaiian pizza.

(LAUGHTER)

And remember, if you have your own hit or miss, be sure to tweet it to us @JERonFNC.

That's it for this week's show. Thanks to my panel. Thanks to all of you for watching. I'm Paul Gigot. Hope to see you all right here next week.

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