The white house stands firm for its demands for a border well. A live report where everything stands at this hour coming up. A judge who ruled obamacare unconstitutional tonight, even some republicans dont think the texas judges reasoning will hold up if the case goes on appeal. After a legal eagle, the chances it goes all the way to the Supreme Court. A defiant fire of the fbi director behind closed doors today. Came out swinging. Our own chief correspondent Catherine Herridge facetoface, challenging james comey. Weve got all the details coming up. Welcome to fox news night, im Shannon Bream in washington. Begin with corresponding Kristin Fisher and the status of a possible government shutdown. We are four days away. There was a moment this afternoon where it seemed like may be a compromise was in sight. The day and then with almost zero progress. In fact, a Senior Senate republican source said we are as unsettled as we have been for some time. Not a single republican senator walking into the weekly Leadership Meeting tonight said they knew anything about a specific plausible proposal that would keep the government from partially shutting down on friday. There is talk right now, just waiting. The last three days. Because i dont know. If the white house has a plan, they are keeping it to themselves. Because there is no way mrs. Pelosi is going to agree to a single, solitary dime for a border wall. Because she wants to be speaker. When senator schumer and congresswoman pelosi met President Trump in the oval office, they passed really serious as they claim could pass the house and senate. A one year standing resolution for all seven appropriations, or a continuing one Year Resolution for homeland security, that would include 1. 3 billion for a fence, but not a concrete wall. Speak up resident trump should support some President Trump should support one of these options and avoid the pain of a government shutdown. The democrats say they have not heard a peep from a direct quote, from the white house or republican colleagues about those two options. President trump doesnt like them because neither proposal contains the 5 billion hes demanding for the border wall and he said last week youd be proud to shut the government down in the fight for his wallet. He might not be giving any guidance for republicans on how to avoid the shutdown, the president is keeping his fight front and center. Any time you hear a democrat saying that you can have good Border Security without a wall, write them off as another politician on party line. It would impact 800,000 Government Employees four days before christmas. Its a big deal. The shutdown standoffs have almost become routine. This time, though, and i want to quote my colleague chad per from here, what surprising about this is the silence, the darth of information, the lack of panic and anxiety. He attributes this to lawmakers wanting to push President Trump up until the deadline in an attempt to force the president to take it or leave it, whatever the it may ultimately be, shannon. Shannon that is the question. Kristin fisher, thank you very much. A federal judge taking the government to task in the Michael Flynn case. Getting more information from the special counsel on how the fbi went about interviewing flynn and what they learned. Prosecutors providing a new memo to the judge tonight about the interview with the form of National Security advisor that ultimately led to his guilty plea lying to investigators. Also tonight, former director james comey testifying in congress again about the alleged bias at the doj. Cheap intelligent correspondent following every step of the way. Shannon, after the closeddoor session, james comey took questions because they took a big hit because the president of the United States with his accos has lied about it constantly. But that damage has nothing to do with me. Comey stood by the former interview of security advisor mike flynn, the critics emphasized that flynn was discouraged from having a lawyer and not warned that any false statements could be prosecuted. Comey declined to answer foxs questions about he mishandled classified informations when he shared with his lawyers memos documenting conversations with the president. Thats nonsense. Im proud of the way the fbi conducted itself. Following a sixhour session behind closed doors, prosecutors were focused by flynn. Its all about jim comey. The heavily redacted that the fbi memos described them as private clients. He seemed to indicate the other day that he wasnt aware of that until he read reports long after he was gone. I find that very hard to substantiate based on the other evidence. On fox news, the president s personal attorneys said his comments are sufficient. Over my dead body. I disgusted by the abuse in this case. Calling his former personal attorney a wrath, the legality of a cohen search warrant is more evidence that the mueller needs more protections from republicans. They want to play defense counsel for the president. The republicans will continue to rakes jim colby over the coals for as long as they can and it seems to be at the direction of President Trump. The transcript from todays closeddoor session should be public as early as tuesday. Shannon Catherine Herridge, thank you very much for the new filing on Michael Flynn begins with this fact. It was now fired fbi agent peter strzok that interviewed the former as an essay advisor. The former National Spokesperson for the fbi, john iannarelli. Way to see you tonight, gentlemen. The judge in this case wanted all the documents. Apparently there was still some backandforth going on about these additional notes from the fbi from january of 2017. Tonight, we get a look. Very redacted. I was struck by reading it that flynn was a very equivocal and noncommittal about a lot of his answers saying, i dont remember, im not sure. That could have been. Do you think the fact he wasnt so blatantly adhering to the things that later turned out to be true is part of the reason we didnt get it right away . John . Im not sure we didnt get it for that reason. I think the fbi is trying to hold everything close to the events fest until its close to the actual hearing. There is references to flynn saying things like saying, good reminder. Those are indications of somebody whos trying to tell the truth and is being encouraged to do so by them providing information he hadnt thought of. To this point, whether or not the flynn interview was unusual of any way, we experience now its interesting to find out that they intentionally decided they were not going to remind him or warn him about that, bradley, also the fact that last week the former fbi director james comey said we essentially got away with something because we went over there, and fresh new administration. Told him he didnt need an attorney. You know thats going to give ammunition to the critics who say that the fix was in. For a political narrative, im sure that some ammunition. But lets get it straight here, when Andrew Mccabe went in, he ventured the contacts in terms of the recent media reports about the contact with kyslyak. Flynn said, no matter, i dont need it. They ran through a standard interview. Im reading through this 302, its everything ive seen with every interview with client sitting with the fbi. Someone of Michael Flynn stature, his seniority, should have known how this process played out. He is not a junior intern. Shannon john, it was clear they noted in some of these documents in the case that he viewed them as allies. He was relaxed, having a conversation with them. He was not guarded at all. Clearly its the purpose appeared thats how you want a subject to be interviewed. Does it suggest to you that he was lulled into being just a little bit too comfortable with these agents . There is nothing about this interview that strikes me as the typical fbi interview. First of all, peter strzok was a Deputy Assistant director of the fbi. Deputy assistant directors dont conduct interviews. Special agents, street age of the conduct interviews. Even at that level, i have interviewed very high level people myself. That shows me that they were dealing with this outside the norm of fbi procedure. Shannon i want to touch on jim comey on the hill today. Catherine herridge had a chance to meet up with him today. Heres a little bit of their interchange. The fbis reputation that has taken a big hit over the last year. Do you share any other response abilities for that . No. The fbis repetition has taken a big hit because the president of the United States with his accolades has lied about it constantly. How much of that is the president s fault, and both democrats and republicans have been furious at comey at some point the last year oratorical. Especially when james comey come there are plenty of reasons to criticize and whether you are a liberal, conservative, democrat. I think what the forward director was getting it in particular was what we saw the last few years of every aspect of Law Enforcement being politicized with the president with his former tweet tweets. He went after peter strzok. Look, this is a simple process, lets run these investigations. This doesnt have to be this hard. Doesnt have to be this vitriolic. But the president cannot stand that his Justice Department is still inquiring to this probe, cannot stand that they were able to convict his former lawyer of committing felonies. Shannon s its clear that this administration doesnt trust a lot of these agencies because they look back to the carter page, the fisa warrants,a lot of questions there. Surprised they didnt declassify a lot of it. In the meantime, bradley and john, thank you both very much. Thank you. Have a good evening. Thank you. Shannon the judge that declared obamacare and unconstitutional late friday. Has another obamacare hearing coming up. This has to deal with obama administrations the Transgender Health and abortionrelated services for Trace Gallagher digging in. Hes on the case tonight. We have a good road map, a legal road map of where district judge rita carter stands on federal transgender protections because judge oconnor how an Appeals Court later stayed the judges ruling but it will come up again on february 4th but thats not judge oconnors controversial obamacare ruling. In august 2016, the judge appointed by george w. Bush also blocked an obama administrations order allowing transgender students to use the bathrooms of their choice. Meantime, judge oconnors ruling is getting hammered by obamacare supporters and opponents alike. University of michigan law professor of Nicholas Bagley who supports the Affordable Care act because judge oconnors decision frivolous, quoting i think the judges opinion could be naked as a piece of judicial activism as ive ever seen. I dont even think its close to jonathan adler, conferred conservative called it nonsensical and surprisingly weak. Legal expert also noted the Supreme Court where the case could be had egg has historically been reluctant to strike down federal laws that have become ingrained in the lives of millions of citizens. The wall street journal published a oped board titled texas obamacare blunder. Democrats are now confirming that it was designed as a way station to government run health care, but a federal judges ruling friday that the laws unconstitutional is likely to be overturned on appeal and may boomerang politically on republicans. Finally, California Attorney general Javier Becerra is vowing to fight judge oconnors ruling saying, quote, the courts left it to the Trump Administration and states to decide how to respond. With the health of millions of people at risk, we want to for this backwards and dangerous determination. We should note that the five Supreme Court justices who voted to uphold the Affordable Care act in 2012 are still on the court. Yes, they are. Lets bring in the robert had a key, assistant general john yoo. Thank you for having me on the program. Shannon we are going to fight this tooth and nail. The first thing we are going to do when we get back there in the senate is urge, put a vote on the floor urging an intervention in the case. I think this will be overturned on appeal. You do . I do. Shannon lets talk about that. This goes to the fifth circuit which is viewed as middle of the road leading conservative a little bit and then all the way to the Supreme Court. What do you make of the prognostications that it wont stand up . The critics are wrong. Federal justice read oconnor got it right. He followed the statute, the text of the Affordable Care act. He followed the language of the Supreme Court when it ruled obamacare could only be constitutional because the taxability generated revenue for the federal government. Not a hasbeen zeroed out, the individual mandate recognized to be unconstitutional in the aspect remained. Its right for the judge to strike down the entirety of the act because it wouldve been judicial activism for him to cherry pick bits and pieces of the act he wanted to keep her set aside. He did his job. Now the case moves forward. To remind folks come back in 2012 when the Supreme Court upheld the dash it still exists, but this judge essentially saying at that point, it really the rest of the law cant hold up. There is this question about severability where you keep the parts of the law that can survive and get rid of those that cant. This is part of judge oconnors decision. Congress stated many times unequivocally through an active tech side by the president that the individual mandate is essential to the aca. Rewriting the aca without its essential features beyond the power of a article three chord, congress expressed intent to find the individual mandate is inseparable from the acas remaining provisions. John . First i think the court did get it right on the individual banded. Its unconstitutional because its based on the tax power and its gone now. Severability is very difficult. I have a lot of sympathy for the idea that the whole law would fall because the individual mandate is now unconstitutional. So intertwined in the law and congress may not have intended it to be struck out as a piece and keep everything else. The problem is in 2012 in the case went to the Supreme Court, that view that the whole law should be struck down was held by the four dissenters. Kennedy, thomas, alito, scalia. That means, i think, its likely to fail on appeal because, as you said, in the report for the justices, the five justices in the majority who upheld obamacare who rejected the severability argument are still there on the floor. Chief Justice Roberts is avoiding to make a sweeping decision striking down the whole law which led him to uphold obamacare twice to the disappointment to me and many other conservatives. Shannon thats true. You know a number of groups are weighing in. Outside groups too, the president of planned parenthood saying this. This would take Health Care Away from millions and the direct attack on anyone who cannot afford basic health care. This would harm those who face systemic barriers, what do you make of that criticism . Does it change your feeling that the law needs to go as it stands . There needs to be parallel paths. That criticism is misplaced but lets recognize that obamacare has failed. You have 220 increase in premiums, millions of people who lost their Health Insurance because they cannot afford it. You have people who lost their doctors because it will be covered by one of these obamacare type plans. The system is crumbling. It was doing so long before this ruling. But while the case works its way through the appellate courts, i think the important pivot point is to now pivot to get the policy right. We need to not look to washington, d. C. , to be the solution on this. Instead, we need to look at the states. We need to look at the states to stand up and use marketbased solutions to make sure that those who are sick can get care, can afford care, can get that care from the doctors that they choose. Lets look for the right solutions. Not just the partisan rhetoric. Recognize that obamacare has failed. We need to find the path for it. Thats going to be for state readership leadership. I couldnt agree more. The problem is those decisions should be in the hands of congress and i do not expect the next few years that the Democratic House and Republican Senate are going to be able to pass anything with obamacare which unfortunately kicks the football into the arena of the courts, the last institution i think should be making decisions on how health care should look. The other thing we are overlooking is it also puts it in the hands of the executive branch. A lot of discretion to shape how the Health Care System is going to work for the next circle years. Shannon this takes us also into the 2020 election, so we will see. Robert and john, thank you both very much. A group of democratic lawmakers heading to the border tomorrow to investigate the circumstances surrounding a 7yearold migrant girls death. 2020 hopeful beto orourke already visiting a