ALI VELSHI, MSNBC ANCHOR: That is tonight`s LAST WORD. "THE 11TH HOUR" with Brian Williams starts right now.
BRIAN WILLIAMS, MSNBC ANCHOR: Tonight, revealing new details on the span and scope of Mueller`s investigation into Michael Cohen and why the probe believes so many pages that were not allowed to see that there are still more to come. Tonight, one FBI veterans says, the President might have a lot to worry about from this case. Plus, why suddenly Rod Rosenstein has decided to stay longer at the Department of Justice. Is his departure being held up planning a release of a Mueller report? And could the effort to do away with the Electoral College ever really succeed, as THE 11TH HOUR gets underway on a Tuesday night.
Good evening once again for our NBC News Headquarters here in New York. Day 789 of the Trump administration and against all we don`t know about the Mueller investigation and a subsequent Mueller report. Just today some newly released documents are revealing details about the earliest stages of investigation in this man, former Trump lawyer Michael Cohen.
Hundreds of pages of court documents concerning Cohen were unsealed today. It`s a lot. It shows Mueller team started requesting search warrants just two months after Robert Mueller was appointed to the job, in May 2017. Prosecutors and the FBI received permission to execute search warrants for Cohen`s two Gmail accounts and stored data in his iCloud account, that was July, August and November of 2017.
Mueller was seeking evidence of Cohen`s involvement in a number of potential crimes, including acting as an unregistered foreign agent and violating the Foreign Agents Registration Act or FARA. That first warrant specifically sought communication records and documents and other files involving essential consultants LLC. That`s the name of a shell company that Cohen set up weeks before the 2016 election for the purpose of funneling hush hundred for Stormy Daniels.
Cohen was never charged with violating the Foreign Agents Act and it`s not clear if Mueller is still pursuing that particular angle. We do know that in February of 2018, the Special Counsel ultimately referred to "certain aspects of the Cohen case to the fed, New York`s office," otherwise known as the Southern District of New York. That eventually led to the FBI`s April 9th, 2018 search of Cohen`s home and office. That prompted this reaction from President Trump.
(BEGIN VIDEO CLIP)
DONALD TRUMP, PRESIDENT OF UNITED STATES: I just heard that they broke into the office of one of my personal attorneys, good man. And it`s a disgraceful situation. It`s a total witch hunt that I heard like you did. I said that is really now in a whole new level of unfairness.
This is the most bias group of people. This people have the biggest conflicts of interests I`ve ever seen. They only keep on looking at us. So they find no collusion and they go from there, and they say, well, let`s keep going. And they raided an office of a personal attorney early in the morning. I think it`s a disgrace to say an attack on our country in a true sense.
(END VIDEO CLIP)
WILLIAMS: Earlier on this network, a former Chief Counsel for the Senate Judiciary Committee was asked about Trump`s reaction to the Cohen`s search.
(BEGIN VIDEO CLIP)
RON KLAIN, FORMER CHIEF COUNSEL FOR SENATE JUDICIARY COMMITTEE: He always known that he`s incredibly vulnerable from the material that Cohen has. He was still at the same time writing hush money checks --
UNIDENTIFIED FEMALE: That`s right.
KLAIN: -- as President of the United States to reimburse Michael Cohen, the good man. He was in the middle of a criminal conspiracy as president of the United States. He knew that.
(END VIDEO CLIP)
WILLIAMS: Last year Michael Cohen pleaded guilty to tax violations, lying to a bank, lying to Congress, and to arranging hush money payments during the campaign to women who claimed they once had affairs with Donald Trump.
Much of the part of today`s filings, the deal with those payments or what we call the illegal campaign contribution scheme remains a mystery, 18 pages in all redacted. As we await Special Counsel Mueller`s next move, NBC News has reporting Deputy Attorney General Rod Rosenstein, who first appointed Mueller, let`s not forget and has been on his way out, now intends to stay on at the Justice Department a little longer.
A period of time is undefined. The Department refused comment when if that meant that Mueller is not yet ready to deliver a report. However, we did learn today that Mueller`s team has asked for an extension to respond to a request from the Washington Post from court documents related to the Paul Manafort case.
The Mueller`s team filing indicated it won`t be able to meet a deadline this week in part because of the "press of other work." We just don`t know how much to read into that.
Meanwhile, the head of the House Intelligence Committee, the Democrat from California, Adam Schiff has his own concerns about the scope of the Mueller`s investigation. Schiff tells NBC News that, "The President has tried to draw a red line around certain aspects of his finances." The chairman also says he intents to have his committee focus on whether Trump of anyone around him is under the influence of a foreign government.
Former FBI Assistant Director for Counterintelligence Frank Figliuzzi warns, "This scrutiny from Congress as well as from federal and state agencies will make life increasingly challenging for Donald Trump."
(BEGIN VIDEO CLIP)
FRANK FIGLIUZZI, FBI ASSISTANT DIRECTOR FOR COUNTERINTELLIGENCE: He should be worried right now. Because the worse decision he has ever made has been to accept the nomination of his party for presidency of United States. He is looking at the destruction of his organization, his foundation, certainly his presidency and its legacy, and possibly even criminal exposure for family members. He should be worried everyday.
(END VIDEO CLIP)
WILLIAMS: On that note, let`s bring in our lead-off panel on a Tuesday night. Jeremy Bash, former Chief of Staff of the CIA and Pentagon, Former Chief Counsel for House Intel, Barbara McQuade Veteran Federal Prosecutor, former US Attorney for the Eastern District of the State of Michigan, and Clint Watts is here, he`s a former FBI Special Agent, an expert in this area and the Author of "Messing With the Enemy: Surviving in a Social Media World of Hackers, Terrorists, Russians and Fake News."
Clint, I`d like to begin with you. Talk having gone on raids like this, talk about the under-pending documents and what you read in here. What they are looking for and timing and what stands out to you here?
CLINT WATTS, FORMER FBI SPECIAL AGENT: I think the thing that stands out the most is how quickly this came after the Special Counsel essentially started. That is a book essentially, of document.
This does not happen over night. I would imagine they were already looking into Cohen somewhere in the FBI or some sort of investigated apparatus. And what you learn in that is that within 60 days they have gone up on multiple e-mail accounts and they were looking for various specific things. They had fraud down there, they had foreign influences.
And so when you look at that stack and how quickly that occurred, remember when you rewind to the summer before, they were talking about Russian influence and there were four people that were essentially named, is coming being the target of a FISA. Now, you`re looking at a hard search warrant that is being filed within two months of the counsel starting. The first two weeks is where are the offices at and how do we get everybody in the room. That is a pretty remarkable turnaround.
And the other thing that we always need to remember, there are always two people in an investigation that are essentially the choke point for investigations, lawyer and accountants. That`s where the finances flow through, that`s where the communications go through. And here you see the President`s lawyer being looked at in a very detailed way, looking at very specific months. And you see pen register being used which really shows where the incoming and outgoing phone calls are from those communications.
WILLIAMS: Let me stop you right there. This term pen register sounds quaint from the old day of law enforcement.
WATTS: Yes.
WILLIAMS: If you`ve crossed the threshold with the judge, and the judge is saying "I am going to allow you to listen into phone calls." Why would you opt for a pen register and pleased to find that verses a straight up wiretap?
WATTS: Right. A pen register does now allow you to listen to phone calls, it just allows you to see incoming and outgoing phone calls.
WILLIAMS: So you log numbers.
WATTS: Yes. And so, you can see who`s calling in and who is calling out. That usually is a less intrusive search warrant. It`s a less intrusive means of search, meaning --
WILLIAMS: Easier to get from a judge?
WATTS: It`s easier to get from a judge that actually going in and doing what`s known as a title three or wire as you`ll commonly hear it refer to in the criminal code. And so, what they are doing is trying to build a case for going to more intrusive method.
Whatever they decided to do which is kind of interesting. Because you -- we don`t see a title three application for going up on a wire, all you see is a pen register in this, is to either got what they wanted in this case or when they did the raid on Cohen`s office, they got everything that they needed. And so there is no indication that anyone in the White House`s orbit was being tapped which is also a question that we have to ask probably Special Counsel Mueller is very in tuned of this to do that very intrusive method. You have to say there`s no other way I can find this evidence unless I go for this method. Seems in this case they did not need to do it or at least we don`t know about it at this point.
WILLIAMS: Jeremy Bash, let`s take a second and remind people choice of words here. The President called this a break-in of Cohen`s office, Rudy Giuliani former US Attorney referred to the FBI as storm troopers. With that in mind, what stands out to you in these hundreds of pages?
JEREMY BASH, FORMER CIA CHIEF OF STAFF: Well, these investigative tactics, Brian, were conducted under the purview of a court, under the purview of the Article Three judge in which warrants were obtained after the government showed particularity. They showed with specificity and predication the things to be seized and searched, and the places in manner that the searches that we conducted.
So this was no violation of the law. In fact, this is upholding the law in the way we want our federal government to do so.
I would just add to Clint`s point, though, that there are maybe things that we don`t know about. There could have also been a FISA warrant, a national security warrant up on potentially Michael Cohen if the fed suspected that he was working in conjunction with the Russian federation in the aftermath of say the Moscow/Trump Tower deal.
WILLIAMS: And, Clint, what would that mean?
WATTS: That would mean it`s almost a duo case in the sense that what you saw there with the pen register, the warrants that were found were criminal codes. If it goes to a national security, any tied to a foreign influence or foreign country, then it goes to the Foreign Intelligence Surveillance Act, which is really part of the national security branch of the FBI. So it could be something done in parallel whenever ties into a foreign power.
WILLIAMS: And now to the former US Attorney among us, and that`s you, Barb, and that we hate the black pages of redaction around here. But the judge explained the pages that were blank today. They had to do with campaign finance hush money. Quote, and this is Federal Judge William Pauley, "At this stage, wholesale disclosure of the materials would reveal the scope and direction of the government`s ongoing investigation. It would also unveil subjects of the investigation and the potential conduct under scrutiny." Barb, what does that tell you?
BARBARA MCQUADE, FORMER US ATTORNEY: Yes. I thought the redacted pages spoke more loudly than any other page among these disclosed documents today, 18 pages. What it says is they`re still investigating either additional crimes or additional defendants. The fact that Michael Cohen is now been prosecuted, pleaded guilty and sentenced suggest to me that what they`re looking for is other defendants. And it is under that category of illegal campaign contribution scheme.
And os what we know about that scheme so far is that Michael Cohen has admitted that being involved in paying hush money and involving AMI, the National Inquirer, David Pecker, President Trump and Donald Trump Jr. We know AMI and David Pecker have entered into non-prosecution agreements or immunity agreements. That leaves President Trump and DONALD TRUMP Jr. as potential targets of the investigation.
Maybe other people we don`t know about yet, but the fact that the judge made that finding and continues to keep that part redacted which requires a showing before they are going to do that, suggests to me that there are individuals under investigation that could include those two that are yet to be charged.
WILLIAMS: And, Barb, we tend to forget at least on our part, we tend to not repeat often enough, Southern District of New York during Cohen`s plea in court, didn`t they say that he admitted the crimes that were done at the direction of individual one later identified as our president?
MCQUADE: Yes. It says even in the document itself, it was at the direction of in coordination with individual one. People have said that is, you know, a kin to saying he is an unindicted co-conspirator there. You know, then we run against this whole idea of whether a sitting president can be charged.
So it could relate to President Trump himself, it could relate to other people who are involved in this scheme. And based on the Judge`s statements, Robert Mueller continues to look at that piece of the investigation.
WILLIAMS: Clint, I`m with Barbara. When you hear the judge talk about additional subjects of the investigation, I don`t mean to be smart, it doesn`t sound like a witch hunt, does it?
WATTS: No, it sounds like a broad base investigation, looking at multiple points of entry. And we already know this. I think what we learn from each piece of this case before it reveal itself, it that this is already splendored in many different directions. You learned that the Southern District of New York was, it appears most likely from this, already looking into those campaign finance violations or some sort of violation in New York separate from the Special Counsel`s office.
So when you look at how this branches out, this book, essential have search warrants that we look at here today, is expansive and deep. And just -- I would like to add one thing about the pen register and how they play together for the audience.
So a pen register allows you to see phone numbers coming in and going out. But that also informs who is the actually communicating in and out with Cohen. So if it`s overseas target that relates to a foreign power, that can at least give you the probable cause to look into or use FISA or a Title Three wire if it is a criminal case, that`s how this sort of play to get their steps in the chain. But one, oftentimes, leads to another if they need to pursuit that investigation further.
WILLIAMS: Jeremy Bash, as you saw it took Ron Klain to kind of remind everybody in this very studio earlier today, oh yes, it is alleged the President was making these payments while President during this period.
BASH: That`s right. And so his presidential conduct I think is of acute interest to Mueller and of course to Congressional investigators. But I think it`s also important to note that in the initial months of the Trump presidency. And even on this broadcast, Brian, in 2017, we knew about Michael Cohen`s role facilitating the real estate deal in Moscow. We knew of the role that Michael Cohen is playing as a conduit between the Russian Federation and the Trump Organization.
So we now know that the FBI and Special Counsel was looking intensively on Michael Cohen in early 2017, that tells me they were intensively looking at the Trump organization and Donald Trump himself as well.
WILLIAMS: Barb, you get the last word. What does it tell you that Rosenstein is saying even if for a day?
MCQUADE: I think it says that the Mueller investigation may be extending a little bit longer than we thought. Two other clues that we got in recent days today in this finding by the judge, he permitted Robert Mueller in additional 60 days before he has to come back and discuss whether those redactions will continued. 60 days was the amount of time Robert Mueller asked for to extend the sentencing date for Richard Gates, that gets us to about May 15th.
And Rod Rosenstein is staying a little longer that expected, maybe all those things are coinciding with the end of the Mueller investigation.
WILLIAMS: Oh that`s very crafty of you. That`s why we`ve invited the very best guests in television. To Jeremy Bash, to Barbara McQuade, to Clint Watts, are thanks for starting off our conversation tonight.
And coming up, one of the biggest names in the President`s circle is the third wheel, in an increasingly nasty skirmish between her boss and her spouse. And later, you may have heard the President mentioned the electoral college a time or two tonight, why Democrats are talking about it in a different way. THE 11TH HOUR just getting started on a Tuesday night.
(COMMERCIAL BREAK)
WILLIAMS: President Trump is going after the husband of Kellyanne Conway, one of his longest serving and top White House aids. Earlier today, he called the prominent Conservative D.C. Lawyer, George Conway, "a total loser."
Trump was responding to a post from his campaign manager that said, "We all know that Donald Trump turned down Mr. Kellyanne Conway for a job he desperately wanted. Now, he hurts his wife because he`s jealous of his success. Potus doesn`t even know him."
George Conway is a frequent critic of Donald Trump. And as we mentioned here last night, he posted the diagnostic criteria for narcissistic personality disorder and antisocial personality disorder after Trump`s weekend tweet storm.
Well today, the Washington Post published the new interview with George Conway pointing out among other things, of course the President knows him. He points to a number of notable interactions with Trump over the past decade. Conway also said that he was the one that turned down a job at DOJ.
The Post also reports, "Conway suggested his own tweets questioning the President`s mental health were aimed in part at avoiding conflicts with his wife. It`s so maddening to watch," said Conway. The mendacity, the incompetence, it`s just maddening to watch. "The tweeting is just a way to get it out the way so I can get off my chest and move on with my life that day, that`s basically it. Frankly, it`s so I don`t end up screaming at her," his wife, "about it."
Earlier today, Former FBI Assistant Director for Counterintelligence, Frank Figliuzzi we hear from earlier, offered this analysis on Conway`s post about Trump`s mental health.
FIGLIUZZI: If this were somebody else, what I would be thinking about would be what behavioral talk about is the pathway to violence. There`s a flash point that has warning signs and indicators before it occurs. And it involves obsessive behavior and bruting (ph) on one issue, the inability to step back and see reality for what it is.
Where is this going? I`m concerned about where it`s going because on a workplace violence level, it would headed toward violence. If you`re president of the United States, that flash point can look like something that is completely unexpected on the world scene or on the national scene. And that`s what you`d be troubling us about what Conway is warning us about.
(END VIDEO CLIP)
WILLIAMS: With us for more tonight and returning to our broadcast from maternity leave and months on in without sleep, Ashley Parker, Pulitzer Prize winning White House Reporter for the Washington Post. And Robert Acosta, National Political Reporter also with the Washington Post. He is also a Moderator of Washington Week on PBS. And during a good week, he doesn`t sleep much either.
Ashley, welcome back, it`s great to see you. And I guess I`ll start by saying if this is couples performance art, it is of the hyper uncomfortable look away variety. What do you think is at work here? And I know you have a very, very memorable vignette from election night regarding this couple.
ASHLEY PARKER, WHITE HOUSE REPORTER, THE WASHINGTON POST: Yes, that`s true. So on election night, I was in the ballroom, the Midtown Ballroom for President Trump`s party and I was standing there and George Conway, once it became clear that Trump was going to win, he came barely in and tears were just streaming down his face. He was standing with a group of people next to me and he was sort of weeping with joy and pride, and saying, "She did it. She did it," referring to his wife, Kellyanne Conway.
And saying, you know, she managed this campaign and she got him elected. And he was just so deeply proud and truly happy for her in that moment. So it`s sort of striking to see how things seem to at least from a public point of view descended in just those two years.
And so, when you ask is this sort of performance arc for the Trumpian era, it`s a great question. It`s something I`ve been asking this, is sort of the James Carville and Mary Matalin (inaudible). And the people in the President`s orbit I`ve talked to have said, "No."
Again, if you are not in a marriage, you don`t know exactly what`s going on. But they have said that this is, their sense is this is real and these are actually tension points, and it`s not just something to, you know, give them a book deal or TV deal after they leave the White House or after she leaves the White House rather.
WILLIAMS: Robert, here`s how your colleagues at the Post reported one of these interactions between George Conway and Donald Trump.
In a conversation with Trump and the wedding of Treasury Secretary Steven Mnuchin, in June 2017, Conway said, Trump approached him and complimented him for not taking a job under then Attorney General Jeff Sessions. He said to me, "I remember it clearly you were smart not to work for that guy," Conway said. "He`s so weak." Trump then complained for several minutes that Sessions should not recused himself from the Mueller investigation, Conway said. I told him, "I`d heard the recusal issue was pretty clear, that Sessions had to recused himself," Conway said. He took great at upfront at that.
Robert, what`s the lesson of that interaction and what do you think is going on here?
ROBERT ACOSTA, NATIONAL POLITICAL REPORTER, THE WASHINGTON POST. Those scenes with President Trump are common when you talk to top Republicans in Washington. But this situation with Mr. Conway is revealing microcosm into the Republican civil war. So many Republicans recant these kind of scenes, often privately to reporters about how they see the President operate in unorthodox ways in their interactions when the doors are closed.
But they choose to continue to support him publicly because they`ve made a political bargain, in some way a personal bargain that despite his behavior, his conduct, some of which they criticize in severe ways, they feel he is responsible for bringing along conservatives on the Supreme Court. He provided a tax cut and tax overhaul law that Republicans are pleased with.
And so they`ve accepted his behavior. But Republicans like Bill Kristol, the Never Trump Movement, Mr. Conway, they do not accept it and they publically rail against it. Those are the fault lines, but those scenes both sides say they happen with frequency.
WILLIAMS: And, Ashley, this public airing of diagnoses from a physician`s handbook, for a long time it was Michael Moore, it was Bill Mar and kind of that corner of the public realm using diagnoses like malignant narcissism. Now we have a respected DC attorney who happens to be married to the -- one of the longest serving aids to this President, just posting diagnoses and this is all in the public realm now.
PARKER: That`s right, And that`s what is so striking. If you look at George Conway`s earlier criticisms of the President, they sort of started out in his area of expertise, legal criticisms, criticisms from the point of view of a constitution conservative. And then, you saw him going delving into mental health diagnoses.
And that is seems to be one of the things that possibly got under the President`s skin. Our understanding is that the President has long been deeply frustrated with George Conway`s tweets and his public pronouncements and his sort of willingness to take on his wife`s boss.
But the attacks from George Conway recently got more personal, and even though you still had aides urging the President not to attack him publically, not to tweet back. It seems like sort of this personal level of attack and ratchet it up is what prompted the President to ultimately responding kind.
WILLIAMS: Robert, we`re coming to you on the other side of the break. And when we come back, we`re going to talk about this. Trump lashing out at the memory of the late Senator John McCain, this time from the Oval Office in response to a direct question. More on that with our guests when we come back.
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WILLIAMS: We mentioned this before the break, President Trump once again attacking the late Senator John McCain nearly seven months after his death. It was earlier today at the White House, our own Kristen Welker asked about Trump why he attacked McCain over the weekend.
(BEGIN VIDEO CLIP)
DONALD TRUMP, PRESIDENT OF THE UNITED STATES: I`m very unhappy that he didn`t repeal and replace Obamacare as you know. He campaigned on repealing and replacing Obamacare for years and then he got to a vote and he said thumbs down. And our country would have saved a trillion dollars that we would have had great healthcare. So he campaigned, he told us hours before that he was going to repeal and replace and then for some reason, I think I understand the reason, he ended up going thumbs up.
And frankly, had we even known that, I think we would have gotten the book because we could have gotten somebody else. So I think that`s disgraceful, plus there are other things. I was never a fan of John McCain and I never will be.
(END VIDEO CLIP)
WILLIAMS: Senator Mitt Romney who liked McCain and Trump held the title of Republican Party Presidential nominee weighed in on this today saying, "I can`t understand why the President would, once again, disparage a man as exemplary as my friend, John McCain, heroic, courageous, patriotic, honorable, self-effacing, self-sacrificing, empathetic, and driven by duty to family, country, and God.
Still with us our Ashley Parker and Robert Costa of "The Washington Post." Robert, everyone should know by now but it bears repeating John McCain was tortured for the better part -- the worst part actually of six years in the Hanoi Hilton. At times driven only by love of country to survive to make it through to the next day. At the risk of going into even more psychiatric diagnoses, trace the antipathy that Donald Trump has for John McCain, where does it go to, how far back?
ROBERT COSTA, NATIONAL POLITICAL REPORTER, THE WASHINGTON POST: It goes back decades. At least to 1999 when then businessman Donald Trump was flirting with the White House bid. Senator McCain was running for the White House at the time ahead of the 2000. In an interview, television interview at the time, Mr. Trump said he couldn`t believe how McCain could be a hero because he was captured. The same language he used years later in 2015 when he was sitting with the Republican pollster Frank Luntz at an Iowa event.
Comments back in 2015 that many in the Republicans establishment some people forget thought would end Mr. Trump`s campaign. But he was only fueled by that incident, continue to grow popular within the Republican Party. This is a President and a politician who was unapologetic about these incendiary reviews, about a later senator. He does not apologize.
People inside at the White House tell us they can`t control his rhetoric on Senator McCain. It`s been a fixation for the President for years. And there`s no real answer or solution from those close to him.
WILLIAMS: Ashley Parker, how do you military vets who make up a large portion of the President`s base react? How do fellow Republicans react and how do Republicans working in the West Wing for this guy react to this, all of this episode?
ASHLEY PARKER, WHITE HOUSE REPORTER, THE WASHINGTON POST: Well, what`s interesting here is the President does a number of things, says a number of things that are slanderous and scandalous and controversial. But when it comes to Senator McCain, even people inside of the White House find this deeply uncomfortable. A lot of the people in his orbit in the White House sort of share the same sentiment that Senator Romney expressed publicly.
Now they don`t necessarily express it publicly, but when he goes after McCain which he did on the Senator when he`s alive and especially now that the Senator has passed, there is just a level of unease and discomfort and, you know, people in the White House and people in the Republican establishment, even if they agreed with McCain on some issues, they respected his service to the country, in the military, in the Senate in running for president and it`s just not how they want to see the President act.
WILLIAMS: Is there any provable upside if you`re Donald Trump, Ashley, and let`s assume people have maybe approached him and say, boss, you may want to lay off this line of reasoning? Is there any upside to Donald Trump?
PARKER: It`s hard to see the upside right now especially after McCain is dead. He`s, you know -- and healthcare is a dead issue as well. The President is relitigating things with a man who can no longer fight back.
And there`s just about no one in his orbit who thinks it is effective politically or in any other way. Perhaps, the personal upside for President Trump is he likes to vent, he likes to get stuff off of his chest and he gives him something of a relief valve. But I think there is no one who is telling him that, yes, this is a good strategy. This is the question you should be responding to while sitting next to the President of Brazil.
WILLIAMS: And Robert, the question I try to ask at least once a week, you get the first asking for this week. How did the Trump agenda advance today in Washington?
COSTA: The most interesting event today was the meeting with the Brazilian leader Bolsonaro. You have a far right populist connecting with a conservative Republican populist in President Trump. We also talk about Brexit and the struggles in the U.K., the rise of nationalism in Western Europe, the nationalistic agenda going on with Xi Jinping and China.
But pay attention to the south, our southern border and beyond, there is nationalism rising there and to have that kind of amiable relationship between the head of Brazil and the head of the United States, that tells you a lot about where global politics are going. It`s much more than the Muller report and all of this news recovery in here. There`s forces far beyond this country that are growing in strength and have real consequences for the global economy and global discourse.
WILLIAMS: Two of the best informed and hardest working reporters on this story, and in Washington, Ashley Parker, Robert Costa, our thanks to you both as always.
Coming up, an interesting incident in federal court today. In a case against Donald Trump, something you don`t see everyday. Josh Gerstein takes us inside that courtroom when we come back.
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WILLIAMS: President Trump has been accused of profiting off of his presidency and today a lawsuit to determine if he violated the Constitution reached its highest level thus far. At issue is the rarely use emoluments clause which basically says the President can accept money from a foreign state.
In this, a lawsuit filed by the attorneys general of D.C. and Maryland point to the profits brought in by the Trump international hotel. It`s just down the street from the White House. It`s the landmark converted former post office building just steps from the mall, a popular spot for visiting foreign governments. The future of this case seems uncertain right now however.
Josh Gerstein of POLITICO who was in the courtroom and waiting to join us in just a moment wrote today, "A federal appeals court panel was indisputably hostile Tuesday to a lawsuit accusing President Donald Trump of violating the Constitution. The uphill battle the suit faces was evident before the arguments even began when it was revealed that all three 4th Circuit Court of Appeals judges assigned to the case are GOP appointees."
Back with us tonight, Josh Gerstein, Senior Legal Affairs Contributor for POLITICO. So Josh, take us in the courtroom starting with the entrance of these three jurors and why was even that a surprise to counsel?
JOHN GERSTEIN, SENIOR LEGAL AFFAIRS CONTRIBUTOR, POLITICO: Well, counsel I think got their first indication of what kind of a battle this was going to just minutes the judges actually enter the courtroom on some boards outside the courtroom. They post the names of the judges and then a lot of courts those names are available for a week or more before arguments Fourth Circuit happens to do it this way. Maybe it`s a bit old fashion where you don`t learn until just minutes before the argument.
And it became clear that we were going to have three GOP judges, George W. Bush appointee, George H.W. Bush appointee and a Trump appointee which is a very unusual draw on the Fourth Circuit. It may become more common in the years to come as the numerous Trump appointees get on to their bench. But the four circuit is a court that had swung from being very conservative at one time following the Reagan and Bush and even Clinton years to being a fairly liberal court more recently. And so, the folks from D.C. and Maryland were challenging Trump on these emoluments issues, knew they were in for a rough ride and that`s exactly what they got.
WILLIAMS: When you reach adult life, you realize that what they teach you in civics about justice being blind isn`t quite the case. And it looks like you saw the display, the illustration of that today that there are consequences following our elections. Tell folks what happens to this case now is whatever the Fourth Circuit determination is going to be the end of the line for this.
GERSTEIN: I think it effectively could be the end of the line. Obviously, these three judges of whatever resolutions they come to which I think will be throwing a significant hurdle in front of this case, discovery, depositions and subpoenas in this case are already on hold. It could be taken to the broader bench of the Fourth Circuit, but that all takes time. And there are several other cases like this that also seem to be moving at a rather glacial pace.
And I have to say after listening to the arguments and seeing some of the lawyers involved here that the attorney general of Maryland came in the courtroom and when he saw that panel, he literally slapped his hand against his forehead in disbelief and his colleague from D.C. said to him, you know, keep your head up, keep your head up.
So, it was pretty clear that they`re facing a very tough road to hoe here. And I really do wonder if the action on this emoluments issue may move to the House of Representatives because they do have subpoena power. And even if the White House may be able to obstruct those kinds of subpoenas, businesses even like the Trump organization will have a harder time I think fighting a congressional action like that.
WILLIAMS: That`s a really interesting point. And I have to ask you back to the story that normally has you on this broadcast, what stood out to you today? This book lengths release of documents regarding the Michael Cohen`s case.
GERSTEIN: Yes. I was really interested in this murky question of what investigations are still going on here. Did the redacted portions of those documents referred to President Trump? Do they refer to other individuals particularly, are there other folks in the Trump organization who may have equities in those documents?
And also the way we saw that there is some sort of continued role for Robert Mueller here. I mean, we thought that a lot of this investigation had been handed off to the prosecutors in Manhattan but sort of reading between the black out lines, it seems like there are still things there that do relate to ongoing Mueller issues. And perhaps as we`ve seen in some other court filings that will come to ahead in the next few weeks and there will be more to be able to be said on these subjects.
WILLIAMS: Josh Gerstein, always a pleasure having you on the broadcast. Thanks for your work today and your reporting tonight.
And coming up for us, the effort among Democrats to abolish the vehicle that delivered Donald Trump the U.S. presidency. Back with that story after this.
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SEN. ELIZABETH WARREN (D), MASSACHUSETTS: Well, my view is that every vote matters. We can have been having national voting and that means get rid of the Electoral College and everybody counts.
REP. BETO O`ROURKE (D), TEXAS: If we really want every person to vote and give them every reason to vote, we got to make sure their votes count and go to the candidate of their choosing. So I think there`s a lot of wisdom in that.
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WILLIAMS: So this is becoming something of a thing on the campaign trail, this list of litmus test questions that the Democrats are all being asked. Do you support the Green New Deal? Do you support reparations? Do you support adding more justices to the Supreme Court? And another one is, do you support doing away with the Electoral College?
It`s not hard to figure out why it might be popular among Democrats. Their candidates, after all, won the popular vote in 2000 and again in 2016, as you might have heard, but lost the Electoral College vote and thus the election. And you`ll recall our current President has mentioned his deep affection for the Electoral College.
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TRUMP: It started on November 8th. Remember that beautiful, beautiful day?
We had a massive landslide victory, as you know, in the Electoral College.
Huge disadvantage, the Electoral College is very, very tough. They say almost impossible for Republican to win.
They say there is no route to 270 and we ended up with 306.
We were not supposed to crack 220. You know that, right?
There is no path. There is no path to 270, right? How many times have you heard that? Thousands.
That was going to be 269 to 270. The one vote was going to be important so I went to Maine like four times.
And I ran the clock out. We ran that -- The whole thing, you ran up the east coast from North Carolina to Pennsylvania, then we`d go up to Wisconsin and Michigan, states that hadn`t been won for many, many years. We won those states.
I also got Michigan and Wisconsin and Pennsylvania.
We won South Carolina, we won North Carolina.
With the Electoral College, it totally changes the map.
The Electoral College is genius.
You know why I won? Because the Electoral College is a very special thing.
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WILLIAMS: So let`s agree it matters to him. His affection continued late tonight, writing in part, "With the popular vote, you could -- you go to just the large states. The cities would end up running the country. Smaller states and the entire Midwest would end up losing all power and we can`t let that happen. I used to like the idea of the popular vote, but now realize the Electoral College is far better for the USA."
Just days ago, Colorado joined a list of 11 states plus D.C. that plan to give their electoral votes to the winner of the national popular vote. But this is tricky, it`s unlikely the bill will pass by 2020. In order to get enacted, it needs to be signed by states representing at least 270 Electoral College votes. With the addition of Colorado, that number now stands at 181, speaking of numbers.
Another break for us. And then coming up, a guest in your home is celebrating a major anniversary. We`ll unlock the puzzle when we come back.
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WILLIAMS: Last thing before we go tonight. Back in the days before every American had the ability to broadcast their own personal television network, before individuals had viewers or followers of their own, it was a downright novelty to be able to watch our Congress at work. On this day, 1979, C-SPAN went live. First speech they aired was delivered by a young Congressman from Tennessee named Al Gore.
And on C-SPAN`s 40th anniversary, tonight we thought an expression of appreciation was in order. Starting with what we`ll call the big three. Brian Lamb, Steve Scully and Co-Chief Executive Susan Swain. Just three of the faces we`ve come to know as our on-air friends and interlocutors over the four decades.
C-SPAN is unique. They don`t get a dollar from the government. They`re funded by the cable and satellite industry and the idea of private industry funding a public service was brand-new. C-SPAN helped launch a lot of political careers back before it was apparent that some of those overwrought speeches were being delivered to an empty chamber. It started with cameras in the House of Representatives, and because everything takes longer in the Senate, it took the Senate seven years to allow C-SPAN cameras to come in.
And also there is this. It`s safe to say that whatever time you watch, whichever C-SPAN network you watch, you`ll come away smarter for it. A commercial network would probably market it as the C-Span guarantee, you will learn something, sometimes many things just for watching. And shows like "Booknotes" let us get to know the people whose books we`ve come to live. Not every C-SPAN moment has been great, but some of them have been member memorable.
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UNIDENTIFIED FEMALE: You ride down from (INAUDIBLE).
UNIDENTIFIED MALE: Oh God, it`s mom.
UNIDENTIFIED FEMALE: And I am your mother.
UNIDENTIFIED MALE: I do not like green eggs and ham.
(INAUDIBLE)
UNIDENTIFIED MALE: Meet the Mets. Meet the Mets.
(INAUDIBLE)
UNIDENTIFIED MALE: Are you stupid?
UNIDENTIFIED MALE: I like green eggs and ham.
(INAUDIBLE)
UNIDENTIFIED FEMALE: You should be fired.
UNIDENTIFIED MALE: Mike Lee, I am your father.
UNIDENTIFIED MALE: Everybody`s coming down to meet the M-E-T-S, Mets.
UNIDENTIFIED MALE: What kind of work do you do?
UNIDENTIFIED FEMALE: I`m an entertainer.
UNIDENTIFIED MALE: What kind of entertaining? Are you USO?
UNIDENTIFIED FEMALE: No, I actually was called by the USO, but I`m -- I`m just -- I`m an entertainer, I really -- I don`t want to go much past that, but --
UNIDENTIFIED MALE: Is this Cher?
UNIDENTIFIED FEMALE: Yes.
UNIDENTIFIED MALE: OK.
UNIDENTIFIED MALE: News reports say after a game-winning goal at a soccer match in Spain a player celebrated by biting his teammate who scored on the genitals. Beam me up. Now, I`ve heard of high-fives, back slaps, butt slaps, but --
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WILLIAMS: It all actually happened. Happy 40th to the Cable Satellite Public Affairs Network, a staple in 90 million American homes.
That`s our broadcast for this Tuesday night. Thank you so much for being here with us. Good night from NBC News headquarters here in New York.
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED. END