[Harlow:] Happening today, CNN has learned the Justice Department is expected to issue a legal opinion that will defend President Trump's appointment of Matthew Whitaker as acting attorney general. This as some congressional Democrats continue call for Whitaker to recuse himself from Robert Mueller's Russia probe due to his past critical comments about the probe. Let's talk to a congressional Democrat about that. Denny Heck of Washington joins me. He sits on the House Intelligence Committee. Good morning, sir. It's nice to have you. And let me begin with whether you join some of your fellow Democrats in Congress who say Whitaker must recuse himself from the Mueller probe. Do you believe that he can adequately oversee it?
[Rep. Denny Heck , Washington:] I think Matthew Whitaker's appointment was unconstitutional, illegal, and just plain wrong. It's unconstitutional because he's not been subjected to the confirmation process. It's illegal because he violated the AG succession statute, and it's just plain wrong because we are learning now things about his background that should have absolutely been exposed during the vetting process. Absolutely. He should recuse himself. Because he's frankly not qualified to be the attorney general.
[Harlow:] So, Congressman, let's pick that bit by bit here on the law, on the constitutionality of it, two points that I would make. The Federal Vacancies Reform Act of 1998 lays out that the president can appoint someone to a position like this if they've served in that department for at least 90 days, which he has. And then when you look at precedent here, you have a Supreme Court case dating all the way back to 1898. And that's U.S. v. Eaten, right, where the Supreme Court decided that a temporary appointment to a principal office was constitutional. Where do you see a violation of the law here?
[Heck:] So let's look at precedent, Poppy. Matthew Whitaker is the first person to head a federal agency, I believe, in our nation's history, who had not been subjected to the vetting process and confirmed by the Senate for another position. There is an underlying statute I think that works also with respect to the succession for the AG's office. But here's the message, Poppy. The president can't have it both ways. When Director Mueller was appointed special counsel, he specifically mentioned the appointment clause in the Constitution saying anybody with that kind of authority had to be confirmed by the Senate. He can't have it both ways.
[Harlow:] Yes. Which is not factual, and he may be being hypocritical, but that aside, the question comes down to what the law is. And I wonder if you are willing to risk a government shutdown to fight Whitaker's appointment. You say it's unconstitutional. That's pretty serious.
[Heck:] I didn't know that we were at an either-or and
[Harlow:] Well, let me ask it this way. Because we heard Senator Chuck Schumer say over the weekend that there is enough support to add that to must-have legislation, which would be, for example, you know, funding the government. Do you think Democrats should do that? Is it are you supportive of going that far if necessary to shut down the government if you don't have legislation to protect Mueller attached?
[Heck:] So you're presuming that if the legislation is attached to it, the president won't sign it. I believe there's a majority support in the House and the Senate to support Bob Mueller completing his investigation.
[Harlow:] So you're you're saying it's not an either-or, but should Democrats be willing to go that far if it comes to that? Willing to come to not funding the government?
[Heck:] So, again, that's not a question that's before us at all. The question that's before us is whether or not Matthew Whitaker should be in that position or recuse himself. And whether Bob Mueller should be allowed to complete his work. And I think our efforts in the short term ought to be on doing what we can to assure him that he can go ahead and complete his work.
[Harlow:] Let me ask you about the potential for Articles of Impeachment against the president come January when Democrats take control of the House. This struck me, what the likely incoming chair of the House Judiciary Committee, Representative Jerry Nadler of New York, what he said about that. Listen.
[Rep. Jerry Nadler , Ranking Member, Judiciary Committee:] You don't want the country torn apart in a sense that half the country says for the next 30 years we won the election, you stole it. So one question before you do an impeachment is, do you think that the evidence of such terrible deeds is so strong that a large portion of the opposition vote base, of the president's vote base, will be convinced by the end of the process?
[Harlow:] Is that an important warning for Democrats? Do you agree with him?
[Heck:] I think Jerry's sentiment reflects that of a significant number of House Democrats. What he didn't say there, I'm sure he's said on other occasions is, we all eagerly await the conclusion of Director Mueller's work at the special counsel's office. That will be an important and significant predicate for any deliberation or direction that we take, while we're simultaneously going down the path of upholding our Article I constitutional responsibility to provide a check and balance to the president.
[Harlow:] Given your position on the House Intel Committee, and the potential use of subpoena power here. You have said that it will be used sparingly and carefully. Is there a risk for members of your party to overreach here in a way that alienates America?
[Heck:] If we proceed as each of the chairs of the relevant committees of jurisdiction have indicated, which is to say that we use subpoena power sparingly and carefully, then I think there is no risk whatsoever. I think that Chairman Nadler, Chairman Schiff, and chairman Cummings have all said essentially the same thing. We can walk and chew gum at the same time. We've got a lot of things to get done on behalf of the American people at the end of the day.
[Harlow:] Yes.
[Heck:] We need lower prescription drug prices, we need to protect people with pre-existing conditions. We need to create good jobs and infrastructure to set a long-term platform for economic growth. We need to do those things. We also need to be holding the administration accountable where appropriate. We can do both those things.
[Harlow:] And finally, leadership for the party. Nancy Pelosi, you have spoken glowingly of her. You've said, you know, she takes her work exceedingly seriously. You've been a supporter of hers. Do you support Nancy Pelosi's bid for leadership?
[Heck:] I do. And furthermore, I'm not sure why it's even a question. I think it's a moot point. There's nobody running against her. Nancy Pelosi has a significant majority of the members of the House Democratic caucus, period.
[Harlow:] You think she has the votes. There is no question in your mind.
[Heck:] She has a significant majority of the members of the House Democratic caucus. Of that, there is no question whatsoever.
[Harlow:] Congressman Denny Heck, we'll see how this all unfolds and if she does has those running against her. We appreciate you being here. Thank you.
[Heck:] You're welcome, Poppy.
[Harlow:] All right. So the Camp Fire, this is the deadly fire in northern California, is now the deadliest and the most destructive in the state's history. We're going to have a live report from one of the hardest hit areas next.