Rep. Nunes on 'Hannity': Surveillance reports I've seen are 'concerning'

This is a rush transcript from "Hannity," March 23, 2017. This copy may not be in its final form and may be updated.

SEAN HANNITY, HOST: And welcome to "Hannity." And this is a Fox News Alert. House Intelligence Committee chairman Congressman Devin Nunes Monica Crowley, Lou Dobbs will all be here in just a few minutes.

Now, tonight also, James Rosen is reporting that sources are now telling Fox News there is potentially, quote, "a smoking gun" that proves the Obama administration spied on the Trump team.

But first, the vote to repeal and replace ObamaCare in the House of Representatives has now been postponed until tomorrow. Now, we know there's a lot of anger, a lot of frustration in Washington, around the country. But unless we learn from the past, we're doomed to repeat it.

Now, right here on this program, I have promised you that I will hold Washington accountable, and tonight, we are doing just that. So where did this process go so horribly wrong? That's tonight's "Opening Monologue."

All right, believe it or not, we got to start with a basic, fundamental civics lesson. As most of you know, our federal government consists of three branches, the executive branch, the legislative branch and the judicial branch. Now, all three under the Constitution have enumerated powers and share a duty to use these powers in the best interests of you, the American people.

Now, President Trump -- we can see the checklist -- he's been working hard to keep his promises, the promises he made to you, the American people, checking them off one by one. But we have a problem. In the legislative branch it's a very, very different story.

Now, the reason that we are here tonight in this position without a vote to repeal and replace ObamaCare is because this legislative process has been beyond contentious, unorganized and disjointed. You've seen the infighting. You've seen the miscommunication. You've seen the squabbles on TV, right here on Fox, on radio, all because the legislative branch did not do their job properly.

Now, for seven long years, the GOP ran on repealing and replacing ObamaCare. They said, "Give us the House." They got that in 2010. They said, "Give us the House and the Senate." They got that in 2014. Then they said, "Give us the House, the Senate and the presidency," and on November 8th, they got that wish, and frankly, in spite of many Republicans not even supporting the nominee of their party, which to me was nothing short of disgraceful.

Now, in a perfect world, the work on repealing and replacement of ObamaCare, well, that would have begun on November 9th, but that didn't happen. And in a perfect world, the GOP would've built consensus among the different factions within the GOP -- meaning the moderates, the conservatives, the Freedom Caucus, the Study Group -- before ever unveiling the bill. That, too, never happened.

Instead, in the two weeks leading up to the release of this bill, House members were saying they were dissatisfied with the legislative process. They were being left in the dark, they had concerns that this bill would not work for their constituents. By the way, they never got to see it. So once the American Health Care Act was really revealed, infighting ensued and a public civil war. Well, we've been watching that unfold.

Now, this bill was quickly labeled "RyanCare," "ObamaCare lite." President Trump, he didn't write this legislation, which, by the way, is not his job. He was then tasked with bringing all of these different groups, all these special interests together. Also, respected groups and think tanks like the Heritage Foundation, the Club for Growth, FreedomWorks, Cato, Americans for Prosperity, and frankly, every major conservative radio talk show host in the country and the American people, were all confused, angered and frustrated.

And that's why we are here tonight. The legislative branch was clearly, in spite of all of this talk for seven years, ill-prepared for this moment to lead. They have now failed the president, and it's starting to look like they're the gang that can't shoot straight.

Here's the bottom line. President Trump was not served well by his party in the House of Representatives, and he has been put in the position now to do their job and do all the heavy lifting on this bill. And it's no wonder that according to RealClearPolitics and their average, congressional approval is at an embarrassingly low 20.8 percent.

So tonight, here we are. We find ourselves at a crossroad, at a stalemate. So instead of ranting and raving, I'm thinking, all right, how do we solve this problem and fix this mess by tomorrow? Because my sources are telling me that the president, if he doesn't get this bill tomorrow, it's over for this session of Congress.

My advice tonight for the legislative branch is to do what you should have done from the beginning. That is, bring a coalition of your party, all the different factions, bring them into a room. Take away everybody's phones, lock the doors, order pizza, get some beer, whatever you need to survive for however long it takes. The meeting should include moderates, the GOP Study Group, the Freedom Caucus, members of the U.S. Senate, because we have to deal with the reconciliation and procedural issues. The White House should be represented, including the vice president, the Health and Human Services secretary.

In other words, it's time to start working with a sense of urgency that most in America work with every day. It's time to fix this mess that you have made for the president, and it's time for you to give the American people a bill that you have now promised them for almost eight years.

Now, I would argue tonight, failure is not an option for the president of the United States and his first major piece of legislation. Now, if you don't succeed, you will have nobody to blame but yourselves.

But at this hour, there's still time. If there's hope for success. Now, Secretary Price, Vice President Mike Pence have both assured me that the president's letter to the Freedom Caucus is 100 percent locked in cement and that those changes will be made in phases two and three, which by the way, we didn't find out about that until after the bill was released. And if not -- by the way, I have it on very good authority this health care bill will die in Congress tomorrow and will not be brought up this session. I was told by very high sources in government.

Now, I'm arguing tonight that should not and cannot happen. And here's my message to you people in Congress. For the love of God, after eight years, can you please do your job? Can you please find a way to work together? Can you please find a way to serve your country, not yourselves, not your reelection?

It is time to serve your president and the people you represent. It's time for you to fix this and show the American people that they did the right thing by giving you the power and the authority to lead, because you don't look like you're leading right now.

Joining us now with reaction, Fox News Business (sic) anchor, our friend, Lou Dobbs. Reaction.

LOU DOBBS, FOX BUSINESS NETWORK: Sean, I feel your frustration and your disappointment. What we have witnessed is a travesty. There's no sugar coating this. But it's also an opportunity for the president to stand up and lead from here because Ryan has shown he is not the leader. He is as ineffective as you have described him, as disappointing. He has failed in his imagination. He's failed as the steward and the shepherd in the House of Representatives for many of the reasons that you cite, plus a host of others.

This is a man who is speaker, who has done nothing in two years, almost two years. He hasn't even been speaker for two years. This is a man who's only passed three pieces of legislation in his entire career. We're talking about 18 years in Congress!

He is emblematic of many of the failings of our Congress and our Senate, frankly. But this president has established a new norm. Stepping into the White House, he's working 24/7! He is...

HANNITY: You know, Lou, you -- I don't want to interrupt, but you're sparking more frustration. You look at the...

DOBBS: Well, thank you!

(LAUGHTER)

HANNITY: You look at the checklist. He's kept promise after promise...

DOBBS: Absolutely.

HANNITY: ... after promise after promise. He's building a wall. He's extreme vetting. He's fighting in the courts. He's getting rid of burdensome regulation. He wants to move forward with a bill that's going to create jobs. He's negotiating with companies. He's keeping companies here in America. He's remembering the forgotten men and women.

DOBBS: He's brought more...

HANNITY: They've had eight years, Lou eight years!

DOBBS: And I listened to Congressman Mark Meadows...

HANNITY: I feel bad for him.

DOBBS: ... the chair of the Freedom Caucus. I listen to Jim Jordan. I listen to Senator Rand Paul. If these are men who are working their tails off right now actually in the president's behalf, trying to get to, as Mark Meadows says, to yes.

HANNITY: Let me ask something.

DOBBS: But to finish the point, the Congress is working one week out of a month? Are you kidding me? This president is setting a new level...

HANNITY: I work 18-hour days.

DOBBS: No, no. I -- I mean...

HANNITY: I don't know what that life is like.

DOBBS: I mean, what do most people watching us do?

HANNITY: Yes.

DOBBS: I mean, who do these arrogant incompetents think they are? This leadership of this House for the Republican Party is setting a horrible example. Lead, follow, or get out of the way. I think it's time for them to get out of the way.

And secondly, I think it's time for President Trump to acknowledge he's got to take on another burden. He's got to lead the legislative agenda.

HANNITY: Well, that's -- you know...

DOBBS: I know it's...

HANNITY: It's not his job, Lou!

DOBBS: It's not his job, but it is his country. And he's the only one who can save this country!

HANNITY: Am I wrong in saying that all these guys that didn't support the president during the election -- I remember talking to the speaker and I remember that then candidate Trump was going, with three weeks before the election, to the state of Wisconsin and Paul Ryan wasn't going to meet the nominee of his party!

DOBBS: He canceled -- he had finally agreed to campaign with him and canceled it. And in October. This is a man who has been anti-Trump, never Trump. And by the way, I don't know his motivation, and I don't care. But I'll tell you this. He has not supported the president of the United States, and that is appalling!

HANNITY: Do you agree with me, the president has not been served well? Is it wrong for me to expect that you don't hide the bill from your caucus, from your conference? They didn't show anybody. And there were all rumors flying around. Everybody was saying -- then it gets released, and this group doesn't like it, that group doesn't like it. Shouldn't -- aren't you supposed to as a speaker build consensus?

DOBBS: Absolutely. But you're also as president, the only one of these people -- everyone talks about they were elected to do this or that. This president was the only one elected by all of the people, and his vice president.

HANNITY: Can we say -- in other words, I talked to the vice president tonight, and I hope he doesn't mind me revealing this. And he believes -- this is what he said. He said what the president, what Secretary Price wrote as a sidebar for stage two and three...

DOBBS: Yes.

HANNITY: OK.

DOBBS: Yes.

HANNITY: ... is written in gold. That was the request of the Freedom Caucus. The vice president to standing by that promise and he said...

DOBBS: That's wonderful.

HANNITY: ... 1,000 percent. But...

DOBBS: That's terrific, except for one thing.

HANNITY: OK. What?

DOBBS: The issue that has been before the president, the speaker and the House Freedom Caucus...

HANNITY: Can they get this done?

DOBBS: ... is that two and three isn't likely to happen. And they want one and a half elements to move into the first phase. This business of phases was a tragic and stupid mistake on the part of the speaker and his leadership team!

HANNITY: OK.

DOBBS: And here's what...

HANNITY: But here's the problem. It's going to either die tomorrow, or it's going to be...

(CROSSTALK)

DOBBS: I want to speak to that because the president of the United States may feel that way tonight -- and I wouldn't blame him one damn bit. He has to be awfully disappointed in...

(CROSSTALK)

DOBBS: ... his team, as well. He's got to be awfully disappointed in Speaker Ryan.

(CROSSTALK)

HANNITY: I think the words, Lou, are pissed off. He has a right to be pissed off.

DOBBS: That's a fair characterization. And I speak Irish, too. The fact is, this president doesn't have a choice. We're looking at $3 trillion in market cap that has moved because the people who have elected President Trump have faith in him, his judgment, his leadership, his values, which are all American. And Americans and leaders never quit.

I don't know what he's saying tonight, but tomorrow, those markets are not going to like to hear that the president of the United States said, I'm picking up my football and going home. That isn't Donald Trump. That is a disappointed, and I'm sure angry as hell Donald Trump. But tomorrow...

HANNITY: (INAUDIBLE)

DOBBS: ... the leader that he is will emerge from the White House.

HANNITY: I don't doubt that, either. All right, Lou, always good to see you.

DOBBS: Great to see you.

HANNITY: All right, we have so much news tonight. Coming up tonight, a blockbuster report, our own James Rosen reporting sources telling FOX News there is possibly a, quote, "smoking gun" that will prove the Obama administration spied on the Trump team. We're going to get that back into that issue tonight.

Also, the House Intelligence Committee chairman, Devin Nunes, who dropped a bombshell just two days ago -- well, guess what? He sent shockwaves through Washington after confirming the Trump team was surveilled, including the president-elect. He'll join us in just a few minutes.

But first, tonight...

(CROSSTALK)

QUESTION: How are you? How do you feel?

STEVE BANNON, WHITE HOUSE SENIOR ADVISER: Feel great. Vote tomorrow.

QUESTION: Vote tomorrow?

BANNON: The president is looking for a vote.

(CROSSTALK)

(END VIDEO CLIP)

HANNITY: White House senior adviser Steve Bannon telling reporters tonight that the president is looking for a vote tomorrow on the GOP "Obama care" replacement plan. Will the bill get enough votes to pass? Monica Crowley checks next, along with Matt and Mercedes Schlapp straight ahead.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

QUESTION: How are you? How do you feel?

BANNON: Feel great. Vote tomorrow.

QUESTION: Vote tomorrow?

BANNON: The president is looking for a vote.

QUESTION: You think you're going to have all the votes?

BANNON: Let's vote.

(END VIDEO CLIP)

HANNITY: All right that was White House chief strategist Steve Bannon earlier tonight. He said the president wants a vote tomorrow.

Here with reaction, Fox News contributor Mercedes Schlapp, Conservative Union chairman Matthew Schlapp and conservative commentator Monica Crowley.

OK, your thoughts on this, Monica. Where are we?

MONICA CROWLEY, CONSERVATIVE COMMENTATOR: Well, look, I think voters are incredibly disappointed by what we're seeing. I think they're outraged by what we're seeing. As you pointed out, they've had eight years to get their act together on this.

Voters expect the Republican Party to just do a few things well, Sean, tax reform and the economy, national security and repealing and replacing "Obama care." Why? Because when you're talking about "Obama care," it's not just the specifics of health care reform, which we do not. It gets to the core issues of individual freedom and the role and scope of government.

That's what made it so important to Barack Obama and the left to make sure that that was the first things that they did when Obama came into office and they had those huge majorities.

Voters sent Republicans in wave elections in 2010, 2014, where they flipped the House and the Senate, gave them total control. And you know what? It was primarily driven by a reaction against "Obama care," and the Republicans...

HANNITY: All right, let me...

CROWLEY: ... promised to repeal and replace it!

HANNITY: Let me move the ball. I agree with all of that, and this was so poorly managed from the get-go, Mercedes, because no consensus was built. Nobody saw the bill beforehand. And frankly, the person that ended up having to do the heavy lift was the president, and that really is job of the speaker and the legislative branch and the leadership.

With that said, can this be saved? For example, the president making a side agreement in letter that phase two will give them -- give the Freedom Caucus the things that they want, that they said they need to get to this bill passed. Is that good enough in your opinion? Will that get it done?

MERCEDES SCHLAPP, FOX NEWS CONTRIBUTOR: Surely, I think that you must give credit to President Trump for time and time again bringing in these conservative members to the White House, getting to a point where, although they're not all quite there yet, but moving the ball forward.

So I think it shows two things, one that the conservative caucus is incredibly powerful in moving this legislation and shaping this legislation, with the case of being led by the Freedom Caucus and the Republican Study Committee.

But also, Sean, I think that it's imperative for Republicans to decide -- to find compromise, to find consensus and to pass this legislation because this is going to be critical for the president to have this victory, this legislative victory, and that will determine how his future legislative agenda will shape up...

HANNITY: I think that's well said...

MERCEDES SCHLAPP: ... if he can bring the Republicans all, you know, to agree and make this significant change and get rid of "Obama care."

HANNITY: So you -- well, look, I've known the president for over two decades, and I've found him always to be a person of his word. That's my experience, and I would say that to every Freedom Caucus member. If he gave you his promise, his word, I absolutely believe him.

Now, if it was the leadership in Congress, if it was McConnell or any of these other guys, I'd be squirrely.

Matt, how -- how does this get done from here? The Freedom Caucus is meeting right now as we speak.

MATT SCHLAPP, AMERICAN CONSERVATIVE UNION: Right.

HANNITY: And they're discussing the president's letter and their discussing whether or not that's enough for them. And they're going to be the deciding voice at the end of this process. They have moved the ball forward in a lot of different ways.

MATT SCHLAPP: Right.

HANNITY: Is it enough, do you think?

MATT SCHLAPP: Yes, look, I -- I think Mark Meadows and the Freedom Caucus has done a spectacular job. They have made great improvements in this bill. You are right, Sean. People like me who run conservative groups were not consulted. We were not brought in. Conservative members of Congress were left out in the cold. This was hatched in the leadership's office. It's offensive to the heart and soul of the Republican Party, which is the conservative movement.

That being said, this is merely the first step. This bill will not become law, I can guarantee you that. All this does is advance the process. The question about what Secretary Price can and cannot do, as you know...

(CROSSTALK)

HANNITY: Well, there are 1,142 "the secretary shall," "the secretary may"...

MATT SCHLAPP: That's right.

HANNITY: ... within the bill. In other words, there is very broad discretion in the current bill...

MATT SCHLAPP: That's right, and...

HANNITY: ... that they would have the ability, he would have the ability to make the changes.

MATT SCHLAPP: But he's...

HANNITY: You know, but -- but I think where the conservatives -- and by the way, I give you -- I agree with you. I think the president -- if this has any chance of passing, it's because of his hard work, him being open to talking to all these groups. He deserves all that credit. But that should have been done before him -- before it was ever rolled out.

MATT SCHLAPP: That's right.

HANNITY: So he was put in an untenable position, in my opinion. But with that said, you know, we always get the tax increase, we never get the spending cuts. We always get the amnesty, we never get the wall built. And I think there's always a trust issue, but I trust the president. That's my experience with him.

CROWLEY: I trust the president, too. I just worry about this process being phased in over three different phases because I think the American people have been burnt by leaders, especially in the Republican establishment, time and again promising one thing and failing to deliver. So when they say, We're going to give you our word on phases two and three, forgive the American people for being very skeptical.

HANNITY: Last word, Mercedes. We have about 20 seconds.

MERCEDES SCHLAPP: Well, but obviously, phase three is going to be probably the most complicated part of this because you're going to need the 60 votes in the Senate. This is where we're going to see President Trump, where he's going to have not only the art of the deal, but being able to try to negotiate and bring in Democrats into the fold. Now, that, Sean, is going to be incredibly difficult.

HANNITY: Oh, you mean the guy -- the Chuck Schumer that said that they're going to filibuster...

(CROSSTALK)

MERCEDES SCHLAPP: I'm not counting on Schumer.

HANNITY: Seriously?

MERCEDES SCHLAPP: I'm thinking about by moderate Democrats.

(CROSSTALK)

HANNITY: All right, guys...

MERCEDES SCHLAPP: Moderate Democrats, yes.

HANNITY: Thank you both for...

MERCEDES SCHLAPP: Thank you.

HANNITY: Thank all three of you for being on this.

And up next, House Intelligence Committee chairman Devin Nunes -- he will join us exclusively to talk about the briefing that he gave the president yesterday. Now, the chairman says he has seen reports that prove that President Trump himself, then president-elect, and his transition team were, in fact, surveilled.

Also later tonight, we have a new breaking news story about -- from James Rosen reporting that sources are telling Fox News tonight there is potentially a, quote, "smoking gun" that will prove the Obama administration did spy on the Trump team. Jay Sekulow, Sara Carter from Circa News are here.

And also later tonight, Michelle Malkin.

(COMMERCIAL BREAK)

HANNITY: And welcome back to "Hannity." So yesterday, the House Intelligence Committee chairman Devin Nunes -- he dropped a bombshell, and all the news (ph) that following the November election that the Trump transition team and their communications were captured by intelligence community surveillance.

After being briefed by Chairman Nunes, President Trump -- well, he said he felt somewhat vindicated by this revelation. Check this out.

(BEGIN VIDEO CLIP)

QUESTION: Do you feel vindicated by Chairman Nunes coming over here?

PRESIDENT DONALD TRUMP: I somewhat do. I must tell you I somewhat do. I very much appreciated the fact that they found what they found. I somewhat do.

(END VIDEO CLIP)

HANNITY: And joining us now, the chairman of the House Intelligence Committee, Devin Nunes, a Congressman from California. Congressman, thank you for being with us.

Let's go over what it is that you said the other day, which has now gotten a lot of play, and that is, in fact, surveillance took place in November, December and January of the president-elect, his transition team. What else do you know?

REP. DEVIN NUNES, R-CALIF.: Well, what bothers me is what I was able to review. It looks like it was in November, December and January. Those reports are concerning to me, and I briefed the speaker and then went to -- I spoke to the news media publicly, and then went to brief the president on what I saw because I think it's important that he sees it.

HANNITY: The president then said that he felt vindicated over his claims that he felt he was -- well, he said wiretapping, but surveillance, wiretapping -- in my view, we're just really parsing words. But he was picked up at least in an incidental way. Can you give us more detail about it?

NUNES: Well, it's tough for me to get into it, right, because I've only read the report, so I don't know all the intelligence that went into it. But to me, I mean, it's clear that I would be concerned if I was the president. And that's why I wanted him to know, and I felt like I had a duty and obligation to tell him because, as you know, he's been taking a lot of heat in the news media. And I think to some degree, there are some things that he should look at to see whether, in fact, he thinks the collection was proper or not.

HANNITY: All right, what about this process -- because we've got to go back. I think you would agree with me that the unmasking -- if we have our intelligence community doing their job -- and I want to emphasize that I have great faith in our intelligence community, and they provide this country with safety and security. It is a necessary evil in an evil world, right?

But in the process of surveilling anybody from any foreign country, which they have a right to do and an obligation to do, if an American is picked up on that call, isn't it standard operating procedure, is that they don't unmask the identity of the American, doesn't matter who it is, and that when they write up the report, they usually would not include the name of that person or details, they would minimize what the American was saying, isn't that standard operating procedure?

NUNES: I think there's a couple different issues at play here. So names for sure if they're picked up in any incidental collection of any kind, they should be minimized.

However, the other issue you're bringing up is unmasking. So if there was an unmasking of a name, additional names, we need to know who requested that unmasking, what was the purpose for unmasking, because it should be pretty rare that American names are unmasked. And that's what we're trying to get to the bottom of and hope that we get some of the information tomorrow so that the rest of our committee can review it.

HANNITY: And then that would also mean that in the case of General Flynn, not only did an unmasking take place but also on intelligence leak, which as I understand it never happens in a case where signal intelligence such as this is in fact obtained, is that correct?

NUNES: Yes. I've never heard of that happening before, and as I've said many times, the only crime that we know that has been committed is that one, and it's quite clear that it was a crime.

I think you said it right, Sean. These programs are vitally important to the security of our country and that's why we take this seriously here in Congress to conduct our oversight. And clearly when I see a problem, I'm going to pointed out.

HANNITY: In the case of any type of leak that would be a violation of the espionage act, that would be a felony, that would be five years potentially in prison?

NUNES: That's correct. And it appears like that happened, right. We won't know till we get all the details, but from my perspective, it appears like that was a crime.

HANNITY: And that raises another question, because you talked about it being widely dispensed within the intelligence community, meaning many people saw the surveillance of the president-elect and his transition team and they were identified. Then it goes to the issue to how many people have access to it. Two weeks before President Obama left office he modified executive order 12333 which allowed in the sharing of this type of intelligence, which has never happened before, with 16 other agencies. Is there a possibility that was done so that leaks could be covered up, sir?

NUNES: In the reports that I read, they were clearly disseminated far and wide. And I don't think it actually has anything to do with the change in that procedure. But what I saw was disseminated pretty far, and in many cases you have to wonder why, which is why I raised the question.

HANNITY: But prior to that the modification of executive order 12333, it was not usual practice to widely disseminate. So certainly, look, if this happened in November and December, that didn't happen until January, the alteration of 12333, is there anybody you saw that had dissemination of these documents?

NUNES: I don't want to get in the weeds here, Sean. I don't believe that change impacted what I saw.

HANNITY: OK.

NUNES: With that said, I will say that the dissemination was pretty far and wide. And like I've said before, I think it appears to me that it was all legal. The question is should it have been done in the first place, did it meet foreign intelligence value? And then secondly were any other American names unmasked? And I have information that says that there were.

HANNITY: Do you question whether or not it was necessary for surveillance? In other words, when you read it, OK, so-and-so was talking to so-and-so. Did you get the impression why would this be surveilled in the first place?

I think there is in a lot of what I saw, there is a lot of foreign intelligence value. Our analysts do a really good job, our intelligence agents do a great job. And so what it was, it was on the margins. I'm just not sure it should have been included into an intelligence report. And then surely there shouldn't have been an unmasking of an additional Americans' name.

HANNITY: Congressman, did you see any legal issues that would worry the president in any way, shape, matter, or form?

NUNES: No. And I've said that too. What I saw had nothing to do with Russia. This has nothing to do with the Russian investigation. But it was important enough that I thought the president of the United States should know what is being said about him and his transition team.

The FBI director did confirm, it is usual practice and I heard James Comey say it himself that they don't comment on potential or ongoing investigations. He did confirm an investigation into Russian influencing of the election, but he wouldn't confirm whether or not there will be an investigation. And you pressed him hard on the issue of whether or not to those people leaking intelligence, whether that's being investigated. It seems to me that the FBI director should be able to have it both ways.

NUNES: The leak investigation or lack of the leak investigation is quite concerning. We need to make sure that these leaks are being tracked down, and it's part of our investigation is to make sure that we do try to find who was at least knowledgeable of the information that eventually got leaked.

HANNITY: One last question. In terms of the ability, we look at the leak of General Flynn, we know that's a felony. Do agree that's a felony?

NUNES: Yes.

HANNITY: Is it something that would have to come -- could this happen at a low level or is this something that could happen at a very high level, meaning a director or just below a director? In other words, who would actually have access to that type of intelligence?

NUNES: If we do expect that his name was unmasked, I think the key would be able to figure out who unmasked the names and who requested that unmasking. There has to be a record of that. Once we get a hold of that, we'll know a lot more from there.

HANNITY: Yes. And so do you suspect then that people go to jail over this?

NUNES: Once you understand who did the unmasking, then you have to know who it was pushed down to, what's the complete audience of people that would have had the name. And then you kind of know at least your initial folks that would know about it.

HANNITY: I think that also goes back to 12333 because it could have been now 16 other agencies involved and maybe something hand-delivered and not sent over electronic devices. Sir, I appreciate your time, thank you for being with us.

NUNES: Thanks, Sean.

HANNITY: Coming up, we'll get reactions to our interview with House Intelligence Committee Chairman Devin Nunes. Also, James Rosen reporting that sources are not telling Fox News that Republican congressional investigators are expecting a, quote, "smoking gun" to come out this week related to the president and surveillance. Jay Sekulow and Sara Carter from Circa News will joins us next.

Then later Michelle Malkin weighs in on all things Washington and of this health care bill.

(COMMERCIAL BREAK)

HANNITY: Welcome back to "Hannity." So tonight our own James Rosen is reporting that according to sources, Republican congressional investigators, they expect this week to receive a potential, quote, "smoking gun," one that will prove the Obama administration spied on the Trump transition team in the weeks following the November election. Rosen in an article posted up right now on FOXNews.com writes, quote, "The intelligence is said to leave no doubt that the Obama administration in its closing days was using the cover of legitimate surveillance on foreign targets to spy on president-elect Trump according to sources."

Here now with reaction, from Circa News, Sara Carter, from the American Center for Law and Justice, Jay Sekulow. I see you smiling, Sara, because every day, everything you said is coming true. I expect this is going to come out tomorrow. Based on my interview, what did you think, A, of what Devin Nunes said, and what do you think about this Rosen report?

SARA CARTER, CIRCA NEWS: On the Rosen report first, I think that it's going to be an accumulation of evidence, not just one little piece of evidence but an accumulation of evidence that's going to expose what's been going on. We are going to have more facts tomorrow when the information is delivered to the chairman.

And if we're looking at the scope of this, I think the most important thing that Chairman Nunes said, and you brought up, Sean, yourself was this expansion of the 12333. If we look at the evidence, a lot of this information that the chairman selected happened before that. So the question we have to be asking ourselves is what changed? If it was legal to collect this evidence, not the unmasking of all of these names, but if this was collected legally, was there something else that happened before this that we're not aware of yet? And I saw Chairman Nunes kind of dancing around that a little bit.

HANNITY: By the way, you've confirmed that stuff happened before that.

CARTER: Correct.

HANNITY: That was the FISA warrant and the separate criminal warrant, if you will. Jay, from your perspective, I'm dying to get to what you think of all this.

JAY SEKULOW, AMERICAN CENTER FOR LAW AND JUSTICE: I'll tell you the biggest take away from your interview, and it was a great interview with Congressman Nunes, was the fact that he said some this was not 12333 information. In other words, it was the change to allow the broad dissemination of this material which previous you weren't able to do. He is saying it doesn't implicate that, which means this information could well have been disclosed without any cover of legitimacy under at an executive order, not that that executive order was legitimate in my view, but that executive order may be gone.

You know what I think we've got here, Sean? I think we've got a constitutional crisis of James Comey's making. So this is a constitutional crisis from Comey. And Comey was an administration official also under President Obama. This idea that President Obama did not order it does not answer the question of was the Obama administration responsible for this, because the fact is, and this is clear, they were the administration in power. So this surveillance that we now know was going on, they're responsible, period.

HANNITY: It gets to what he knew or what others knew, who knew what when and where, and what did they know and when did they knew it? So Jay told me where he think it's going, Sara. Where do you think it's going?

CARTER: I think the expansion goes way beyond Comey. I think this goes straight to the highest levels of the Obama administration. And that's where these answers need to come from. We need to find out who unmasked these names.

And it wasn't just Director Comey. There were other people that had access to this. The NSA can unmask these names, so who requested that? That's one of the most important, important questions here, Sean, and why. And I think once those questions start to get answered, just like Chairman Nunez said, then we'll know, was their political espionage? And if there was, Sean, this is the greatest civil liberties violation that we have seen in our country in a long time.

HANNITY: This would make Watergate look like kindergarten?

SEKULOW: Oh, yes. Sean, here's what I would tell you. You want to get to the answer of this question? Subpoena a couple of people including the former president of the United States. You want to find out what he knew and when knew it? Ask him, especially if this was not anything outside of the scope of legitimacy. If this was, quote, "a legal surveillance" but they unmasked this information, which is not --ask the president directly.

HANNITY: The bottom line is they were surveilling the president. And Sara, you believe it was before the election and now we are getting it confirmed by James Rosen after the election. You also said it had happened after the election, but we're getting more specific.

Now, there should be ways to determine who had access to what this intelligence was. The fact that Devin Nunes said it was widely disseminated before 12333 was amended, that tells me that maybe that in and of itself was wrong. It would have to be the highest level of intelligence agencies that had it, because nobody else would otherwise have access, right, Sara?

CARTER: That's absolutely correct. And remember, every time you go into a SCIF, every time you go into these secured compartmentalized facilities to view this information, you have to swipe in. You have to swipe in, you have to sign a log. It doesn't matter if you're an analyst working on a case or if you're John Brennan, the former director of the CIA. You have to swipe in. So there are logs out there, Sean, and there is evidence out there. Some of that's classified, but they are able to get a hold of it. If Chairman Nunes can get a hold of that information he can start finding out who --

(CROSSTALK)

HANNITY: Jay, I'm running out of time. What should Nunes be doing and what should the attorney general perhaps be doing here?

SEKULOW: I think the attorney general needs to empanel a grand jury, that's the first thing that needs to happen, and start this investigation, because what Sara said is correct. You can find out who did this. So that's number one.

Number two, for the chairman of the intelligence committee, he needs to get the background data, because what he saw in those reports shocked him, obviously, not just because it named President Trump potentially and his associates but also the nature of the dissemination itself. And that dissemination, that unmasking can well be a crime. So they need to get the background data.

And Sean, President Trump can get this information. He's got the highest security clearance, he is the president of the United States and the commander-in-chief, he can get that information and they need to get it and Jeff Sessions' needs to be working on it.

HANNITY: One last point and we've got go, James Comey needs to now come clean with the American people and tell the American people what he knows. He cannot leave this out there hanging any longer. All right, we'll have a lot more, I think tomorrow. We'll have you back both of you tomorrow to talk about it, thank you.

And up next, Michelle Malkin will join us live to weigh in on tomorrow's House vote and much more, straight ahead.

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REP. PAUL RYAN, R-WIS., HOUSE SPEAKER: For seven- and-a-half years, we have been promising the American people that we will repeal and replace this broken law because it's collapsing and it's failing families. And tomorrow we are proceeding.

(END VIDEO CLIP)

HANNITY: That was speaker of the house Paul Ryan vowing that tomorrow they will vote on the GOP bill to repeal and place Obamacare, they have the votes. Joining us now with reaction, the host of "Michelle Malkin Investigates" on CRTV.com, Michelle Malkin.

As of now, I know the Freedom Caucus, I don't know if the meeting is continuing. They we're meeting at the start of this program, and it seems to now all come down to them, and an issue that is important to them that the president given them a letter ensuring them that that would be done, the things they were specifically asking for. My big problem with all of this is the way it was rolled out, the way it was handled, the secrecy involved, the fact that they've had eight years to get this together. What are your thoughts?

MICHELLE MALKIN, HOST, "MICHELLE MALKIN INVESTIGATES": If you lie down with dogs, you get fleas. And if you lie down with Paul Ryan, you get fleeced. That has been the lesson that grassroots conservatives have learned over and over and over again, and unfortunately Donald Trump is learning now.

For seven, eight years now, Paul Ryan and the establishment GOP have promised, as he seems to brag with great self-unawareness over and over again, how many dozens of show votes did the establishment GOP members hold on the full repeal, which they fully never were committed to. That's what we are seeing. This is not full repeal. It's faux-peal, it's fake-peal.

HANNITY: The bottom line is --

MALKIN: But now that we see the negotiations going on over things that are important, for example the House Freedom Caucus pushing on something that is important, repealing the essential benefits, for example. That's just nibbling at the edges. The fundamental problem is this entire structure of the guaranteed issue plus the community rating, plus the Medicaid expansion, plus the millennial benefits mandate, all of it, the whole kahuna, you cannot just settle for half the loaf when the entire loaf is poisoned.

HANNITY: Is there anything you see from your perspective? And, look, I just don't understand how the president was put in the position after the Republicans in Congress said give us the House, give us the Senate, give us the White House and we'll get this done. And they unveil a bill that nobody saw, that many people had many of the criticisms you have, and then they hand it off to the president to do all the heavy lifting, shouldn't that consensus have been built after eight long years? Shouldn't have been prepared and written and agreed upon and ready to go? It seems to me that it should have been such a consensus bill by that point that the president could have gone out and said here's our replacement bill and, by the way, he could have done it in front of every Republican House member and every Republican senator, but they weren't prepared. How was that possible?

MALKIN: It's not about preparation on the part of members of the house Freedom Caucus, for example, or the people who truly work committed to full repeal. And the problem is not that President Trump doesn't have good people around him --

HANNITY: But the 2015 bill didn't fully repeal --

MALKIN: The problem is that he trusted Paul Ryan, and he let Paul Ryan lead. If Mark Meadows had been the one consulting primarily with President Trump we wouldn't be in the mess that we're in now. You know what the solution is here, for this thing to go down in flaming flames and for them to start over with a clean slate and put Paul Ryan in the back of the bus. That's what should happen.

HANNITY: I guarantee you if this dies tomorrow, it's over and they will move on to other issues of national defense, the economy, tax reform and other issues. That's my prediction based on knowledge. I've got to roll.

MALKIN: Voters voted for Donald Trump.

HANNITY: Thank you. And coming up next, more "Hannity" right after this.

(COMMERCIAL BREAK)

HANNITY: Time for our "Question of the Day." So who do you blame for the GOP health care mess? Go to Facebook.com/SeanHannity, @SeanHannity on Twitter. Who do you think is responsible? They had eight years to get this together. But that's all the time we have left this evening. As always, thank you for being with us. "Special Report," a special edition with Bret Baier is coming up next. We'll see you back here tomorrow night.

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