new yorker, even hiring ex-mossad agents. david: now the manhattan d.a. is going to seek an indictment sometime next week, not looking good for him. melissa: incredible story. "risk and reward" starts now. >> for those who are telling me to shut up, they told hillary that a couple of months ago. you know what i tell them? go to hell. i'm going to tell my story. >> allegations simply aren't true. >> you have to have some concern about how that's going to play out in virginia. >> nobody cares. >> she feels like she's warning her democratic party to move on and look at these elections as inevitable. >> it strengthens my call and that of others for a special prosecutor. >> i don't know whether donna brazile is a kook, but what she said is kooky. >> the entire democratic party stinks from the head down. elizabeth: it is election night in the united states, just hours

away from polls closing in virginia and new jersey where voters will choose their new governors. now top democrats trying to show the world it does have momentum and unity, but behind the scenes they're going full bore, attacking donna brazile for telling her truth about the collapse of the party in her scathing expose. it's an expose which now threatens to rip the democrat party apart. this as market watchers pay close attention to president trump's aid ya tour -- asia tour where he is trying to get china and russia to push north korea to the table while back home the senate may rip apart the house's tax reform and start fresh, start from scratch. aztec giant apple now faces new accusations it uses tax havens to lower its tax bills, all this as a record bull run on the one-year anniversary of trump's victory. the 75th record close for the dow hangs in the balance.

we've got an all-star lineup tonight. former governor mike huckabee, congressman jason chaffetz, ambassador john bolton, former reagan economic adviser art laffer, and judge andrew napolitano. the dow, s&p and nasdaq hitting intraday, all-time highs while the dow closed in record territory, up eight points to 23,557. that's less than 500 points away from 24,000. it is the 75th record close for the dow since election day, and president trump's post-election stock market rally, it is the fourth best since 1936. yes, we're going back in this history as the senate now threatens to rip apart the house's version of tax reform. we've got senator john cornyn saying the senate will likely start from scratch with its own tax cut package. this as tomorrow marks the one-year anniversary since hillary clinton lost. it's been a year of the democrats blaming russia, james comey, wikileaks, but donna brazile says in her new scathing

expose about the democrat party that it is the democrats themselves who are also to blame. a, quote, cancer at the center of that party that was hillary clinton's takeover of the democrat party long before she became the nominee. and now top democrats including tom perez, john poe december that, robby mook signed an open letter attacking donna brazile. she's punching back hard against her critics. roll tape. >> for those who are telling me to shut up, they told hillary that a couple of months ago. you know what i tell them? go to hell. i'm going to tell my story. elizabeth: the democrat party did lose 1,042 seats nationwide at the federal, state and local level under the obama administration. insiders say brazile is a cassandra warning that the same problems will pop up again in the midterms, also the presidential election 2020. but democrats must now clean house and unify or risk losing

tight races like those on deck tonight. former clinton ally doug schoen is now calling for a special prosecutor to investigate hillary clinton. >> this new revelation tonight on the e-mails that it probably involved gross negligence, it strengthens my call and that of others for a special prosecutor to look at that, comey, the gross negligence, to look at the e-mail deal more generally, to look at uranium one, the dossier, all of it. because at this point what we know is getting more and more troubling. elizabeth: we're going to get to that with governor mike huckabee, but let's get to the gubernatorial races in virginia and new jersey. neil cavuto will pick up these races live at 8 p.m. eastern time. he's going to have special coverage of the results. in virginia, let's get to adam shapiro live on the ground. adam? >> reporter: as you've said, this is a race that the entire nation is keeping an eye on because the stakes are great not

only for republicans, but for democrats, and polls will close here in just under two hours. as you take a look at video of ralph northam, the lieutenant governor, the democrat who had a commanding lead a few weeks ago, but it has shrunk, this morning when he was in richmond he actually said that this race was a bellwether. the quote was we're the bellwether, people are looking at us to see what direction we go in. they want a governor who has some fire in his belly. we will stand up to the detrimental policies coming out of washington. in some respects, trying to make this a national referendum. then you get ed gillespie, in the video you see, he has some help from president trump, but president trump did in the come to virginia to campaign on his behalf. this morning gillespie was talking about the momentum that has been building with his base. here's what he said. >> as i talk to the voters, they're concerned about our economy and the fact that it's six-tenths of 1% economic growth rate, 39th out of 50 states in,

you know, virginia. we should be first in the country in economic growth, and that's what the voters are concerned about here as well as our schools and our roads and, you know, people just want to be able to get home in time for dinner with their family. i've got transportation plans, jobs plans, increase our employment by 25 percent. we need those jobs and opportunities here. >> reporter: and gillespie has gotten some assistance from president trump. the virginia republican party putting out a robocall with a president in which he says, quote: if you let ralph northam be governor, he will be a total disaster for your state. northam is weak on crime, weak on immigration, and as your lieutenant governor, he's driven your economy right into a ditch. just a bit of the robocall from president trump on behalf of ed gillespie. so we're at gillespie headquarters. polls close in just under two hours. it could be a nail-biter or a blowout, but everyone's going to be watching virginia. elizabeth: wow, tough language there. thanks for coming on, adam. that's virginia where voters

have elected a democrat in every single statewide election since 2009. now to the new jersey governor's election where democrat phil murphy wants to raise taxes, he's going head to head with republican lieutenant governor kim guadagno, they're facing off to replace chris christie's seat. connell mcshane is live in asbury park in new jersey with the latest. connell? >> reporter: hey there, liz. you know, chris christie not on the ballot, of course, because of term limits, but almost every day of this campaign including election day, he manages to become part of the story, and that's not necessarily been in this campaign good news for his lieutenant governor, kim guadagno. she has tried to assert herself talking about things like lower property taxes, attacking her opponent, phil murphy, on immigration and a number of different issues, but it's been tough with christie hanging over things. now, as for murphy, you made the point about his plans economically, and he talked about that earlier today when we watched him vote in the red bank area. here he is. >> the economy.

the economy, it's busted. we've gotten better since the recession, but everybody has. we've been left behind, so we've got to strengthen it, grow it again, make it fair and make it touch everybody. >> reporter: you heard that word, it's the key one in the murphy campaign, make it fair. that's been a theme. what it means is raise taxes and raise them on the upper income people in the state of new jersey, something he's talked a lot about. now, then there's christie. with all this talk back and forth between guadagno and murphy, the governor, the sitting governor -- even on his way out -- manages to insert himself into this campaign. of as an example of that, earlier today when he was voting the governor made headlines. he got into it, a verbal back and forth with a female voter. here it is. all right. so apparently we don't -- well, you know what? if we don't have that, liz, i can paraphrase pretty easily. there was a woman watching chris christie as he was voting, and she started to ask him a

question like a reporter would. next thing you know, christie's letting her have it and saying, listen, if it's so easy, why don't you try it? back and forth. and here at the murphy headquarters where we are, they hope for more of that from the governor. they hope that he's the story, and they hope that voters are sick of that, quite frankly, and they hope that it helps their candidate. we'll see how it goes tonight. we have the polls closing at 8 p.m. eastern time. elizabeth: i saw that sound bite, it was quite the back and forth, really illuminating. connell mcshane, even terrific stuff. good to see you. our election coverage at fox business kicks off at 7 p.m. eastern time with lou dobbs when virginia polls close followed by neil cavuto at 8 eastern time right here on fox business. democrats help a win in both virginia and new jersey could set aside donna brazile's explosive expose about the failures of the hillary clinton campaign and the democrat party. plus, unify and give that party important momentum. a loss, though, would be a big

blow to other democrats plotting anti-trump strategies for next year's midterm congressional races and could spur calls for radical changes in the dnc heading into the presidential election in 020. former clinton pollster doug schoen believes the entire party is in trouble and it's time for the democrats to clean house. let's roll tape. >> the entire democratic party stinks from the head down. the whole process, everyone has really stain on their hands. elizabeth: former arkansas governor, fox news contributor mike huckabee joins me now. good to see you, governor. >> well, good to see you, liz. i'm pretty sure doug schoen is not going to get invited to address the next democratic national convention. he probably lost that invitation. [laughter] with that comment about the whole thing stinking from the head down. elizabeth: yeah. it was quite a comment. i want to get your call, who wins virginia and new jersey tonight? i know who you want to win. and the question is, you know,

the debate is, is virginia really a bellwether? back in 2009, a year after barack obama won, virginia elected a republican, bob mcdonald. does it really set the stage about messaging for the next year's election? >> not necessarily. i mean, most governor races have more to do with local issues than they do national. but the fact that ed gillespie has really brought this margin in and is in, you know, spitting distance is really a story. and the big question is why. was it a blowback to that incredibly nasty ad? was it that people have decided that a maybe with the democrat implosion that we're seeing thanks to donna brazil that that's not a party they want to show up with? it'll take some post-election polling to know. but one thing is for certain, this was supposed to be a runaway for the dems just two weeks ago. it isn't. it could go to gillespie tonight tonight. it would be a huge upset. new jersey, no surprise there. i think everybody expects that

to go to the democrat. elizabeth: it's amazing they're going to vote in, in new jersey, more tax hikes. butting you know, we want to get your take on donna brazile's tell-all about the clinton campaign and democrat party. she's saying clinton took control of a bankrupt dnc, hillary clinton ran a robotic campaign heavy on data analytics, didn't move the hearts and souls of voters, not even minorities enthusiastic about it. ended up alienating everything. what are your thoughts on donna brazile? >> well, you remember that scene in "ghostbusters" where they say don't cross the streams, because if you do, terrible things happen? well, donna brazile has crossed the the streams, crossed the clintons. and when you do that, the equivalent is crossing the streams in "ghostbusters." and donna has created an extraordinary explosion within democratic circles. i believe that her motive is, quite frankly, to say it's time to put the clintons behind us and the future of the country in

front of us, and i think that there are a lot of democrats who deep down -- they don't want to say it, because they don't want to cross those streams, that's not a safe place to be. but i think a lot of them would like to say, clintons, thanks for your past service, but we're done with you. you've got to go. here's the door, we'd like to see you go through it. elizabeth: you think this is the end of the clinton era. is that what you think? >> look, if there's more to it, i can't imagine how that would play out. i mean, hillary has pretty much alienated so many of the activists. she certainly burned the bernie voters. they're feeling the burn, because they know they got hosed. and you've got people who are half the country, a bunch of deplorables. i mean, how worse could it get to keep them in charge? and then add to that the uranium scandal and the honorariums for bill speaking in moscow. i mean, it just -- doug schoen was right, his language was punchy, but it stinks from the top down. elizabeth: governor, come back

soon. good to see you. >> thanks, liz. elizabeth: president trump's post-election stock market rally is the fourth best since 1936 as the push is on for comprehensive tax reform in the senate. the senate could upend what the house is doing. nicole nicole petallides has the latest. nicole? >> reporter: well, liz, it was a nail-biter right to the closing bell. we've had some back and forth action throughout the day, but the i dow -- which had been higher than 50 points, had been lower by more than 60 -- the closing bell was still close. by the end the dow squeezed out a gain of more than eight points and clocked in yet another record for the dow jones industrial average. the nasdaq and the s&p 500 each hit records during the day but did not move higher on the close and, therefore, missed those record closes. on the dow jones industrial average, you did have zell names hitting all- several names hitting all-time highs. apple, visa, mcdonald's, american express. those are the dow names.

also a few others including amazon, royal caribbean and weight watchers. those were some highs as well that were notable. and we did see priceline and trip adviser come under some serious pressure after weaker than expected outlooks. last but not least, those financials, jpmorgan, goldman sachs weighed on the dow jones industrial average as did whale wells fargo, bank of america, citigroup on the other averages as well. liz? elizabeth: we've got more after the break. we've got art 4r56er coming up, and we're also going to be looking at a bunch of things including, look at this, the social media uproar over a $375 antifa-inspired jacket sold at high-end retailer barney's. you're going to want to hear about that. also new revelations from the paradise papers showing ceo item cook at apple, they've got a new tax shelter problem on their hands. we're going to show you what art lover thinks about that.

but first, tucker carlson is saying his sources telling him cnn is asking its anchors and hosts to discredit donna brazile and defend hillary. cnn hotly objects to that, says that's wrong. we've got jason chaffetz on that story after this. ♪ ♪

elizabeth: welcome back. for all you twitter fans and for president trump, look at this. twitter with announcing today it will roll out a 280-character limit. it is now 140. it has been testing that option among a handful of users since september. it looks like it's going to do it. no more pithy tweets for you. twitter's stock closed today in the between, look at that. next to this story, tucker carlson says his sources are telling him that cnn is

instructing its hosts to discreditton that brazil -- discredit donna brazile. roll tape. >> according to highly informed sources we spoke to, highly informed, top management at cnn directed its employees to undermine brazile's credibility. anchors and producers were vocally offended, many of them, by her attacks on the clintons. if you've been watching, many of them have suggested donna where civil cannot be trusted precisely because she took part in efforts to rig the primaries for clinton. watch. >> she is the one who got access to one town hall question and sent an e-mail, which we know from wikileaks, to someone in the clinton campaign to give them a town hall question, which is completely unethical. she doesn't doing that for bernie sanders. >> do you take her at her word, sam, given the fact that she lied about that cnn debate and

giving those questions to hillary clinton ahead of time? [laughter] >> it's unbelievable. in retrospect, they're so obviously talking points. in. elizabeth: joining me now, fox business contributor jason chaffetz. what are your thoughts on this? >> wait a second, twitter doubling to 280? [laughter] i mean, as fast as twitter goes, i don't know that doubling is what you need. look, as it relates to donna brazile, i mean, these are quite the revelations. i mean, you have a party that's in disarray. not only do they not have a message, right? they don't have a leader of their party -- elizabeth: wait a second. what do you think of the story that tucker's breaking, that cnn is telling its anchors to basically through donna brazile under the bus? >> and then you have tucker carlson reporting that, and i trust tucker. he's an honorable person, full of integrity, and then look at what you saw on air, and it kind of dovetails exactly with what he put on the air.

look, donna brazile's been involved for decades in democratic politics, and what she did was wrong in terms of giving the questions. but suddenly she's come to light and saying, hey, these joint fundraising agreements, all these other things, some of these things are against the law. elizabeth: in other words, you're saying that the clintons could have taken their donations to the clinton campaign and funneled them or money launderedded them to the dnc? >> here's the problem, joint fundraising agreements, almost everybody in politics does them, but you can't go around donation limits by putting a contract in place that allows you to still control that money and go pass those campaign -- past those campaign limits. very serious -- elizabeth: yeah. i hear what you're saying. let's get back to the democrats throwing donna brazile under the bus. she's saying, listen, democrats, you lost more than 1,040 seats under obama, and the party's in collapse. in her expose she's saying you are not grabbing the hearts and souls of the voter out there.

you're taking kind of a clinical view of it, and democrat strategist richard goodstein, he used to be a supporter of donna brazile, championed her. watch his fight with tucker carlson. tucker carlson takes him down when he tries to discredit donna brazile. roll tape. >> i don't know whether donna brazile is a kook, but what she said is kooky in the book -- >> wait a second. i don't know why -- hold on. i thought the basic precept of liberalism is when a woman says she was mistreated for being a woman, that you take her seriously. you don't dismiss her as a crazy person. am i the feminist here? elizabeth: go ahead. [laughter] >> look, the reality is donna brazile is exposing things that are black and white. this joint fund raising agreement, they produced the documents, she was right. she's now listed out several things that cause all kinds of consternation within the party. they don't have a policy, they don't have the --

elizabeth: they won 60 million of the popular vote. that's their argument. >> okay. they did really well in california and some of the coastal places. but in the heartland, 30 of the 50 states went for donald trump. they lost states that they haven't lost in a long, long time. elizabeth: it's not rocket science. the voters said what are you going to do for me, and this wasn't an answer on the democrat side. this is not our parents' democrat party anymore. we are the jfk democrats. nobody knows -- donna brazile is the canary in the coal mine saying you're in collapse mode. fix yourself, or you're going to keep losing. final word. >> absolutely. it'll play out tonight in some of the gubernatorial races. they rant -- want to raise taxes, republicans want to reduce taxes. elizabeth: good to see you, jason chaffetz. thank you so much. just a reminder, donna brazile will appear with tucker carlson this wednesday at 8 p.m. on fox news. snap, shares plunging dramatically after hours after snap reporting that losses more

than tripled. user growth only slightly up, more than estimates. snap shares down, more than -- look at that -- 16% in after-hours trading. now this for you, new revelations about secret tax havens used by the rich and powerful now snaring apple. the paradise papers, huge leak of financial documents, shows apple found a brand new tax haven after ireland tightened its status for companies after the u.s. senate and e.u. started investigating. we're bringing in art laffer on that. he says apple, silicon valley lecturing, telling everyone else how to live, that those lectures stop when it comes to apple cutting its own tax bill. more on that after this. don't go away. >> apple is engaged in a sophisticated scheme to pay little or no corporate taxes. >> that is total political crap. ♪ we couldn't live there.

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elizabeth: look at these new revelations fm the paradise papers. this is a huge leak of financial

documents now showing apple found a brand new tax haven after ireland tightened its rules on its corporate tax haven status when the e.u. and the u.s. senate were cracking down. the tech giant moved its untaxed offshore tax reserve to the channel island of, look at this, jersey. this island has a zero corporate tax rate. apple is reportedly holding more than $252 billion in cash overseas. let's look at the stock, the tech giant ending the day in the green. let's bring in one of the best economists around, the very brilliant and smart former reagan economic adviser, art laffer. >> thank you very much, that's a nice introduction. would you mind repeating that? elizabeth: i love your name's art laffer, because you have the best giggle in the world. >> thank you. elizabeth: is apple doing anything wrong? >> nothing wrong, no. they're doing exactly what the shareholders want them to do. if you owned shares, would you want them to pay extra taxes and hurt your stock? no.

i mean, this is what companies are supposed to do and what jurisdictions are supposed to do is tax the proper tax base to collect the revenues. obviously, a profits tax is not a very good tax. it discriminates against high quality companies that make wonderful products cheaply and don't use lawyers and accountants. and with lots of profits, these guys seek places where they get taxed the least. elizabeth: and the cbo has said anywhere from 25-70% of the increase in corporate taxes is paid for by workers or investors. >> of course they are. elizabeth: do you think apple will bring any of its cash overseas back home to create jobs if that corporate rate is cut to 20? they can borrow cheaply in the bond markets and leave that cash hoard overseas. >> depends on what they do with the private profits they've made. if they are required to match u.s. taxes and they pay a lot less, like a 7.5%ax on the iris pfit, you kw, i don't know if ty would or not.

but i don't see why they would i mean, they can do all the same things with them in their foreign incorporated subsidiary. so i don't think they'll bring it back unless they can get it back very, very cheaply to use here to create jobs. elizabeth: interesting. let's get back to apple's tim cook. apple is a silicon valley titan that often lectures even else on how to live. and tim cook was asked, hey, wait a sec, are you scheming to avoid paying taxes? he said, absolutely not. cook saying it's not patriotic to pay more than what you owe in taxes. quite an interesting controversy here. let's roll tape. >> it is. well -- >> here's what they concluded. apple is engaged in a sophisticated scheme to pay little or no corporate taxes on $74 billion in revenues held overseas. >> that is total political crap. finish -- there's no truth behind it. apple pays every tax dollar we owe.

elizabeth: sounds like he should be voting for donald trump. go ahead, art, what do you think? >> yeah, i think as long as they're not evading taxes, i don't know why schumer would say scheme, because it implies illegality. but these guys seem to be paying the taxes they do owe. they just have a great tax planner that does it and makes it now in the channel islands where we've all known for years, lots of people have their money to lower their taxes and avoid taxes. but it's not tax evasion, elizabeth, and i don't think they should be accused of tax evasion or even made slight of. tim cook does, is a preachy guy, and you sort of catch him on his own hypocrisy, but that's not illegal. if we got people on hypocrisy, we'd get a lot of people. elizabeth: art, quickly, the senate's going to take up their version of tax reform, john cornyn saying they're going to ditch the house version, start from scratch, and they may not touch the mortgage interest deduction. that's news there. what do you think's going to happen, quickly, with the senate

version? >> i think we're going to get the tax rate reductions on corporate taxes and get the inheritance tax removed and some of the others, and i hope they just leave it at that. 450 pages is way too long, elizabeth, and i hope the senate does do something. elizabeth: all right, art laffer, come back -- >> hey, with that introduction, anytime. elizabeth: do you want to pay $9,000 for silver yarn or $1,000 for a tin can? tiffany raising eyebrows with its glitzy, jeweled-up everyday household line of items that cost a fortune. but first, another hot spot and geopolitical fight, president trump pushing north korea to come to the table and make a deal while at the same time asking congress for $4 billion to update missile defenses in asia against north korean missiles. my next guest says it's about time that trump's reagan-esque peace through strength will deliver a victory over the night against north korea. he's ambassador john bolton, here to weigh in next.

elizabeth: the north korea nuclear missile threat still looming, president trump asking congress for an additional $4 billion for missile defenses to upgrade them in asia against the rogue regime and also to improve u.s. navy ships there. take a look at defense stocks, how they did today. boeing, raytheon, lockheed martin all ending the day up arrows there, in the green. president trump warning north korea he is prepared to use strong military force. he also urges north korea to

come to a peaceful solution. listen. >> we have many things happening that we hope, we hope -- in fact, i'll go a step further, we help to the god we never have to use. with that being said, i really believe that it makes sense for north korea to come to the table and to make a deal that's good for the people of north korea and the people of the world. elizabeth: let's bring in former u.s. ambassador to the u.n. and fox news contributor, ambassador john bolton. good to see you, ambassador. >> glad to be with you, liz. elizabeth: what do you think, north korea comes to the table? >> if it did, it would only be as a ruse to provide more camouflage as they sprint across the finish line. this is something north korea's done many times before. it's a variant on a communist party of china strategy called da da tan tan that means fight fight talk talk.

for the north koreans it means develop your nuclear weapons until the united states gets too upset and then talk with them for a while while you continue the program clandestinely. look, the only agreement with north korea on their nuclear weapons that makes sense to me is the entire north korean government resigning and disappearing somewhere. elizabeth: the president is pushing for more missile defense money for the area, for the region. he wants china and russia to put the pressure on north korea. will this work? >> well, i think it's important to upgrade our missile defense capabilities not only for what we used to call theater missile defense for japan, south korea, our forces deployed there, but for national missile defense, the kind of program that george w. bush started and the obama administration all but killed. the purpose is to defend us from missiles. we've got a partial system in place, it's nothing like what bush contemplated. it's not technically our capabilities are good, but the

extent of the system and its redundancy are not good enough, not nearly. you can blame all of that on obama. so i think it's a big deal that the president's proposed this significant budget increase. i'm sure there are $4 billion of wasteful domestic spending that we could cut and would have no effect on the deficit. elizabeth: saudi arabia, oil prices surging to highest levels in two years amid rising tensions in the middle east. motorists paying more at the pump. saudi arabia basically blaming iranian-backed yemeni rebels for launching a missile, saudi arabia's saying the today tack, quote, may be -- attack, quote, may be considered an act of war. is the middle east now at leading edge of a big, massive change of societal revolution? what's going on? >> really for the last 20 years the middle east has been disintegrating into chaos. the rise of islamic terrorism,

the collapse of the post-world war i boundaries drawn by the europeans, terrorists really right across africa and northeast, the iranian nuclear weapons program just one conflict after another. this missile launched by the houthi rebels in yemen a good example. undoubtedly, they got that missile from iran, so i think the saudis are exactly right on that point. but this is going to be very complicated, very difficult. we need a comprehensive strategy in the middle east. we don't have one now. and we need to finally decide if we're going to go after the iranian nuclear weapons program at the same time the president's got to deal with the north korean nuclear weapons program. the president inherited a lot, and most of it's a mess from his predecessor. it's all coming due, all the bills are coming due very, very quickly. elizabeth: ambassador, we love having you on. please come back soon. >> will do, thank you. elizabeth: for that perfect anti-trump rally look, look at

this. social media uproar. barney's high-end retailer selling a $375 antifa inspired jacket. first, a newly-revealed memo to congress shows that former fbi director james comey softened his initial gross negligence charge against hillary clinton, watering it down to extreme recklessness after she won the nomination. the judge is here to react to that next. >> james comey thought he could pull a fast one on the american people. ♪ ♪

elizabeth: we've got newly-revealed memos o congress showing former fbi director james comey originally used tougher language, accusing hillary clinton of being, quote, grossly negligent with respect to the handling of 110 e-mails that had classified information in them. but as you know, that tough

language was toned down in comey's final draft with the much softer accusation that clinton had been extremely careless in her handling of -- >> that they were extremely careless in their handling of very sensitive highly classified information. elizabeth: my next guest says comey thought he could pull a fast one and that hillary clinton may not be out of hot water just yet. judge andrew napolitano with us. >> e. mac, always a pleasure. elizabeth: walk us through what's going on here. >> well, chuck grassley, the chair of the senate judiciary committee, sought and received drafts of james comey's statement that he read. you ran a little clip from it. this is july 5, 2016, when he sort of bigfooted his bosses in the justice department, said i'm taking over on this case, and she's not going to be indicted because she was extremely careless, and the statute requires that she be grossly negligent or the statute requires intent. he was wrong on the law, but what we learned today from what senator grassley unearthed is

that his original draft did use the word gross negligence. now, what's the significance of this? 99.9% of all federal statutes require the government to prove to a jury beyond a reasonable doubt the intent of the defendant to violate the statute. espionage is in that .1% where the government does not have to prove intent. it can win its case by proving gross negligence. is there -- elizabeth: you don't need intent for gross negligence. >> correct. and jim comey's a smart lawyer and knows that. is there a difference between gross negligence, the language that the courts have said is the standard for proving guilt under the statute, and extreme carelessness, the language that jim comey described mrs. clinton and her colleagues? there's no difference whatsoever except that extreme carelessness and -- is a softer and different phrase from the ones accustomed the using. elizabeth: but if she was charged with that, that means prison -- >> yes. elizabeth: convicted it's prison

time or fines, right? >> yes, per violation. and there's 120 potential violations. these are classified materials, confidential, secret and top secret that she put on her non-secured server. our colleagues, pam brown and catherine herridge, found an e-mail from an fbi agent during the investigation complaining to comey, why are you asking us to find evidence of intent? the statute doesn't require intent. so the fbi actually went through this. if jim comey told the cia or the public or anybody that the statute required intent, that was wrong under the law. it's the rare statute that you can prove guilt by a high degree of negligence. >> what does this mean for hillary clinton? >> it means if jim comey was truly fired as the president and the attorney general have said for dropping the ball on hillary clinton, that the attorney general should pick up that ball and run with it. meaning, he can present the evidence of her guilt to a grand jury and ask whether or not it chooses to indict her.

the government is not bound by comey's decision made a year and a half ago to let her -- elizabeth: well, chuck grassley could basically push or advise or suggest that hillary clinton be brought before a grand jury. there was never a grand jury impaneled on this, right? >> there was -- it turned out what we learned later after the case had been shut down that they did impanel a grand jury only for the purpose of issuing subpoenas so they could get documents. elizabeth: but not about the charges. >> correct. they doesn't bring evidence of guilt before this grand jury. i know chuck grassley fairly well and i have a lot of respect for him. you can bet your bottom dollar he's going to ask jeff sessions the next time the alternative general's before him and under oath, why aren't you presenting this evidence to a grand jury? you fired the fbi director because he failed to do so, now are you as well? elizabeth: judge napolitano, we love you. >> see you in the morning with stuart. elizabeth: coming up tomorrow northerning, as usual. -- morning, as usual. cvs coming up with plans for

a next day delivery service for next year. this as speculation is rising that amazon is about to do just that in a number of states. look at cvs closing the day up 3% on the news. next up, limousine liberals can now find the perfect look for their anti-trump rallies. [laughter] the judge is laughing here, dying laughing. barney's, high-end retailer selling a $375 antifa jacket. details next. is this a phone?

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elizabeth: just in time for christmas, limousine liberals, you can now find that perfect look if you want to hit the anti-trump rallies. apparel company alpha industries getting major social media backlash over its

antifa-inspired jacket now on sale at barney's. the jacket features the word revolution printed across the front along with anarchy symbols. some calling for a boycott of barney's, others saying, you know, antifa, making it trendy makes it less serious, not funny. joining me now, ford to o'connell and kelly grace gibson. come on, kelly grace, you want one, don't you? >> oh, i mean, i think politics and fashion has a long, rich history. what we want is people to be engaged in our democratic conversation through words and conversations, but clothes too. i'm not sure that coat's for me, but i'm pretty stoked about the conversation about politics keeping up with this tradition of staying inside of the -- elizabeth: so we want to wear on our coats and jackets, ford, antifa slogans. how do you feel about it? [laughter] >> you obviously can't fight fascism unless you're dressed to kill. nothing screams anti-capitalism like a $375 dry clean-only

jacket that lets the rich kids join the resistance. i don't get why it doesn't come in jet black with a mask and a stick. this is the bottom line to the discussion. if the antifa folks hate it this much, guess what? i'm getting one for christmas. elizabeth: okay, for both of you for christmas. [laughter] look at this, high-end jeweler tiffany coming up with an everyday household line. for instance, you could shell out $1,000, look at this, for a shiny silver can. look at that. tiffany's stock closing in the red. people are not impressed. ford, what do you think? people running out of things to buy? >> well, i think that tiffany's needs to change its motto and basically say when feeding your money through a shredder becomes too tedious, try tiffany's everyday object toes. i love capitalism, but this is downrightly dick louse. >> it's encouraging savings, which you guys should love --

elizabeth: what do you mean, you guys? >> people love to encourage savings -- >> but, kelly, look, tiffany's caters to the well-heeled, and if you buy a $1,000 tin cup and a $350 accompanying silver straw, guess what? you're actually the heel, okay? >> well, maybe -- [inaudible conversations] elizabeth: kelly, let me ask you something, can you wear your antifa jacket going shopping at tiffany's? >> i mean, if you bring your barney's receipt, maybe. elizabeth: what do you think, ford? you going to put your jacket on and buy those things? >> i wouldn't buy either item, but you're darn right, i'm going to go down to the village and wear it if it's going to hack off antifa. elizabeth: we know what to get you guys for christmas. breaking news on tax reform, senate democrats calling president trump just moments ago. what they had to say after this. don't go away. ♪ ♪ with fidelity's real-time analytics, you'll get clear, actionable alerts

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>> liz: breaking news, senate democrats talk to president trump in asia on the phone, they called them on the phone to

complain about tax reform. spoke about 15 minutes we'll continue to bring you any developments on that story. doesn't matter about zero vote, as senate republicans try to avoid democrats. thank you for watching charles payne is making money. take it away charles. >> charles: thank you very very much. good evening i am charles payne gop pushing tax reform and what the senate expected to release their own plan in the house on thursday while they're expected to vote on their plan next week. several hurdles remain and we'll talk about them but first the major story of the hour with implications for 2018 and beyond the voting and races in both new jersey and virginia coming to an end soon, polls closing in virginia at 7:00 p.m. , 8:00 p.m. in new jersey we're covering them from all angle our very own covering the new jersey race, and adam shapiro covering the virginia race both let's go to adam first >> adam: as you said, this is a race that people are watching nationwide, virginia just one of the testst