Show: ALL IN with CHRIS HAYES Date: December 17, 2018 Guest: Christina Wilkie, David Fahrenthold, Sheldon Whitehouse, Sherrilyn Ifill,. Jeff Merkley, Nicholas Bagley
CHRIS MATTHEWS, MSNBC HOST: Thanks for being with us. "ALL IN" with Chris Hayes starts right now.
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CHRIS HAYES, MSNBC HOST: Tonight on ALL IN.
JAMES COMEY, FORMER DIRECTOR, FBI: The President of the United States is lying about the FBI, attacking the FBI, and attacking the rule of law in this country. How does that make any sense at all?
HAYES: Donald Trump under fire.
COMEY: This is the President of the United States calling a witness who has cooperated with his own Justice Department a rat.
HAYES: Tonight, new movement on Cohen, Flynn and more as 17 separate investigations bear down on the President. Plus, how the Russians and the Trump campaign each tried to suppress African-American voters.
DONALD TRUMP, PRESIDENT OF THE UNITED STATES: They didn`t come out to vote for Hillary. They didn`t come out.
HAYES: Then, making sense of the new legal threat to ObamaCare. And just what exactly is happening on the border?
UNIDENTIFIED MALE: People who tried to lawfully petition for asylum at our ports of entry are turned away with a number of permanent marker written on their wrist.
HAYES: When ALL IN starts right now.
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HAYES: Good evening from New York I`m Chris Hayes. Every day it seems the President sounds more and more like a mob boss. We`ve been watching him intimidate witnesses, rail against law enforcement, talk about flipping, but this weekend it was the first time he actually owned ironically used the term rat to describe a guy who by the way is about to go to prison.
Remember FBI director James Comey who first made the comparison to Trump acting like a mob boss in their very first meeting was on Capitol Hill today and he was not holding back.
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UNIDENTIFIED MALE: What impact does it have when the President calls Michael Cohen a rat, someone who is cooperating with the investigation that questions how his office was raided by the FBI.
COMEY: It undermines the rule of law. This was the President of the United States calling a witness who has cooperated with his own Justice Department a rat. Say that again to yourself at home and remind yourself where we have ended up. This is not about Republicans and Democrats. This is about what does it mean to be an American. What are the things that we care about above our policy disputes which are important.
There`s a set of values that represent the goal of this country and they are under attack by things just like that. We have to stop being numb to it. Whether you`re Republican or Democrat, you need to stand on your feet overcome your shame and say something.
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HAYES: Trump is also now facing down the kind of legal troubles that would make of lifelong professional criminal worry. Michael Cohen is just one of many concerns. Tomorrow, Trump`s former National Security Adviser Michael Flynn will be sentenced in federal court. And if the unregistered Turkish agent working on the Trump transition who is federally indicted today is news to you, don`t blame yourself, it`s because there are at least 17 ongoing lines of investigation into Trump and his associates.
Wired`s Garret Graff laid them out. First, there`s the Russian government`s election attack, then there`s WikiLeaks, and whether Trump associates had advanced a knowledge or coordinated those plans, there`s the question of middle-eastern influence into the Trump campaign. Former Trump campaign chairman Paul Manafort has already been convicted of eight felonies and there`s still a whole world things we don`t know about the extent of his legal troubles.
Just last week Michael Cohen pleaded guilty to lying about the time and scope of the Trump Tower Moscow project. Remember that, which is last week. Robert Mueller is looking into even more contacts being Russia on the campaign and transition teams including the infamous Trump Tower meeting between Manafort, Donald Trump Jr., Jared Kushner, and several Russians.
He is also investigating possible obstruction of justice resulting from Trump`s dismissal of James Comey and his efforts to get Michael Flynn off the hook. the SDNY named then-candidate Trump as individual one in Cohen`s guilty plea last week relating to alleged hush money payments in violation of federal law. We know prosecutors are looking into the record $107 million raised by Trump`s inaugural committee. $40 million or so of which we don`t know what happened to.
There are also reports they`re looking into possible foreign money flowing into the Trump super PAC, investigations into foreign lobbying resulted in a Dutch lawyer pleading guilty earlier this year. Just last week Russian agent Maria Butina agreed to cooperate about Russian attempts to influence prominent U.S. organizations like the NRA which backed Trump in record donations. There`s also separate charge for the alleged chief accountant of Russia`s Internet research agency and an investigation into Turkish influence that led to those two indictments today.
Finally, on a state level, their investigations into Trump taxes, a state lawsuit charging Trump`s charity with sweeping violations of campaign finance laws, and finally the 17th investigation, the emoluments lawsuit alleging the President is accepting payments from foreign powers while in office in violation of the U.S. Constitution. And keep in mind, these are the investigations that we know about.
Here to help unravel all this, David Fahrenthold, a Washington Post Reporter covering President Trump`s businesses, conflicts of interest, and Christina Wilkie White House Reporter for CNBC.com, her latest reporting is titled the Trump inaugural committee`s fundraising was a mess from the start but a new investigation could finally provide some answers.
And Christina, let me start with you on precisely that question. This is a kind of thing that`s been sitting out in front of everyone for a while, but I think a variety of things have focused attention to it not the least of the fact that it now appears there are actual federal investigations into the inaugural committee.
CHRISTINA WILKIE, WHITE HOUSE REPORTER, CNBC: Yes. Ever since the first reports came out of who these inaugural donors were, it began to raise red flags among people like David and me who look at the profiles of big donors all day long. You know, you have a typical kind of a profile of someone who`s going to donate say $100,000 dollars to a Presidential Inaugural. They might be a big corporation or they might be you know, a big oil CEO for Trump or a Republican philanthropist but it`s typically a person who has a pattern in history in politics.
And what we saw almost immediately with the Trump inaugural were all of these -- of these sort of black box kind of donors who either had untraceable addresses or whose names didn`t match up with any public records or who had strong business interests and potentially guests from Russia and in Russia and who were giving enormous, I mean, sums. There aren`t any limits to what you can give to an inaugural committee but they - - so they were giving $100,000, $200,000, $500,000. And it -- you know we looked at them really closely. But journalist could only go so far so it sounds like investigators are taking the next steps.
HAYES: You know, David it strikes me there`s a theme here in the timing of all this. When you look at the reporting that you had about the Saudis essentially running the scam where they wrap a block of rooms in Trump hotels, when you look at Christina`s investigations and others in the inaugural committee, Flynn`s lying during the transition, it really does seem like there`s this period where Donald Trump wins the presidency against all odds and a scramble, a kind of mad rush in a bunch of different directions of like how do we get to these people and how do we influence them and they seem to like money, maybe that`s the way to go.
DAVID FAHRENTHOLD, REPORTER, WASHINGTON POST: That`s right and we`re still unraveling that. You did see a lot of people connected to Donald Trump trying to kind of cash in either as lobbyists or in Mike Flynn`s cases as basically unregistered foreign lobbyists in that period. There was kind of this all these people who had come to the Trump campaign because the Trump campaign was sort of the last resort from people on the conservative sight. It was only people who had sort of nothing to lose.
Now all of a sudden, they`re giving all this power and access and influence they all of a sudden are now the people who are in demand in Washington as Washington`s interests try to reorient and influence this new administration. The inauguration is a great example that we as Christina said, we still don`t know a lot about what happened there. But this is clearly what was going on. People trying to find OK, who can I influence, who can I buy in this world, and the inauguration was that was a huge example of that.
HAYES: What -- I want to follow up on that because one of the other three lines here for me about both the Trump org and the inaugural committee are we don`t know the answers but the answers are knowable, right David? Which is to say there exists on some computer somewhere records of flows of money into the Trump Org and their sources it`s just that we publicly don`t have access to them.
FAHRENTHOLD: That`s right. And I think we are moving closer or you know, not me, but there are people who are out there getting a little bit closer. The emoluments clause lawsuit you mentioned. In the grand scheme of things, for Trump, that may seem like a small issue. But the plaintiffs in that case have now gotten the right to discovery.
So they`re able to ask the Trump Organization with the courts backing who are your foreign government clients, who are your state government clients, what did they buy, how much do they pay, did you advertise to them. That whole world of influence that we`ve just been left to sort of scratch and claw and we`ve only seen that the sort of bear outlines of it. There`s people out there who are now using the power of the courts to try to see the whole picture. Go ahead.
HAYES: Yes, and that`s -- and Christina, that`s the same thing on the inaugural committee. It`s why I might sort of perked up because you did this amazing pioneering work where you`re crowdsourcing on a spreadsheet like who are these donors? Who are these people? What are these LLCs that got created out of nowhere to give money? And there`s only so much with the public record and what they have to disclose legally. But the idea that you have people with some subpoena power or some -- who could compel testimony or who were in a U.S. Attorney`s Office going through those records, that`s a whole different ballgame.
WILKIE: Yes, it is. And what`s I think also so interesting about the inaugural committee is that the way inaugural fundraising works is that there are very few rules. So you can take -- in Donald Trump`s take or in this case, he could take unlimited contributions from corporations and he did, and you could take unlimited contributions from individuals. So that the only real rules are that you have to report the money and that you`re not allowed to take money from foreign nationals and foreign governments.
So when we look at a lot of these records, that don`t add up, addresses that don`t exist, people who`d never given before all of a sudden are you know, show up who don`t say have very lucrative jobs and show up with hundreds of thousands of dollars, you really have to ask more deeply in a setting where you can disclose anything and there are very few illegal donations the really -- only rule is that in the no foreign money. You know, it makes -- it`s a setting with very few rules. So when these rules look like they`re being bent, they`re only so many places you can look.
Yes, we should note there`s already one case of an indictment about a straw purchase for a foreign donor right? There`s a Washington lobbyist who did that. So this is not an idle speculation. We have one example concretely where this happened. David, where do you think it goes next in terms of how -- I guess here`s my question. How much of Trump work is cabined off from what these investigators might be looking into and -- or is it just so all interconnected that they start to follow one part of the spider web they`re going to end up at the center?
FAHRENTHOLD: Well I think we don`t know exactly what people like the SDNY and Mueller, what their intentions are. How far in the Trump Org they want to go? But Donald Trump, his M.O. had always been to be very, very secretive toward the outside world, but to limit knowledge about his business to a small circle of people.
And we`re starting to see people from that circle getting pulled out, turned. Michael Cohen is a great example, but their there`s also a guy named Allen Weisselberg who`s been Trump`s CFO since the 80s knows about all the money flows in the Trump Organization which is a pretty small company. He knew it all. He`s already testified we agreed to cooperate with authorities some degree in the case against Cohen.
If people like that start to turn or if they start to see a real risk to themselves, then they value themselves over Trump and the information is not that compartmentalized. A few people know it all.
HAYES: David Fahrenthold and the Christina Wilkie, thank you both. That was great. Speaking of reporters today, after his closed-door testimony in the Hill, James Comey called out Republican lawmakers for failing to stand up to President Trump.
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COMEY: So another day of Hillary Clinton`s e-mails and the Steel Dossier, this while the President of the United States is lying about the FBI, attacking the FBI, and attacking the rule of law in this country, how does that make any sense at all. Republicans used to understand that the actions of a president matter. The words of a president matter, the rule of law matters, and the truth matters. Where are those Republicans today?
At some point someone has to stand up at in the face of fear of Fox News, fear of their base, fear of mean tweets, stand up for the values of this country and not slink away into retirement but stand up and speak the truth. I find it frustrating to be here answering questions about things that are far less important than the values that this country is built upon.
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HAYES: Joining me now Democratic Senator Sheldon Whitehouse of Rhode Island who`s a member of the Senate Judiciary Committee. First, I want to get your reaction, Senator, to something that James Comey responded to which is the President United States referring to Michael Cohen as a rat. As a former U.S. Attorney yourself, a member of the Senate Judiciary Committee, what do you -- what do you think about that?
SEN. SHELDON WHITEHOUSE (D), RHODE ISLAND: Well, I think it seems a lot like a signal to other potential co-operators that he will turn on them and that there will be a price. So to the extent that he`s been engaged in obstruction of justice in plain view for months and months and months now, this is just yet another episode of obstruction in plain view.
HAYES: There`s also some news tonight about Michael Flynn. There -- I don`t know the degree you followed this but there has been a kind of conservative theory spun out that Michael Flynn was the unwitting victim of some kind of entrapment by the FBI officers that questioned him. And there`s actually tonight the actual notes from those FBI investigators have been released and it`s somewhat remarkable they show Flynn being given time and time again opportunity to come clean and tell the truth about the nature of his conversation with -- conversations with Sergei Kislyak, the interviewing agents, asked Flynn if he recalled any conversation with Kislyak which the expulsion that meaning the expulsion of Russian diplomats were discussed where Flynn might have encouraged Kislyak not escalate the situation to keep the Russian response reciprocal or not to engage in a tip for tat. Flynn responded not really. I don`t remember. What do you think of that?
WHITEHOUSE: Well, I think the opposite of the Republican narrative is likely the truth. I think that when FBI agents go up and actually enter the White House to do a formal interview of the National Security Director, they`ve got to be pretty anxious going in that they really have to stay well within bounds. They don`t want to be tangling with the White House or the national security director. They want to be well within you know, proper procedures and give the guy every chance he can to clean up his story and give them an out not to have to come back and report to as they turned out to have to do, Sally Yates, oh my God, we just got lied to on a national security matter by the National Security Director involving the Russians. And that set this all off.
But you`re right, the 302 form that they filled out seems very consistent with kind of caution you`d expect from FBI agents as they go into the White House to take an interview of a prominent national figure.
HAYES: You know, since Michael Cohen has pleaded guilty to lying to Congress which you are a member of in the United States Senate and we have this sort of additional information from the sentencing about what the U.S. Southern District looks at in terms of the violation of campaign finance law. Many people feel like we`re on a different terrain now than we were before that. And I wonder if it feels that way in Capitol Hill if you feel like in the last week or so things are on different terrain legally for the president.
WHITEHOUSE: Yes. I think two things are happening. One I think the investigations in courts and in grand juries are piling up enough that they`re starting to kind of surround the President and put him in a position where it becomes increasingly complicated to try to deceive your way around thing. I mean, the tangled web starts to actually tangle and start to snare him and the people around him. It`s too many investigations to keep your story`s straight.
On the other side, outside of the judicial branch and these executive investigations in grand juries and in courts and so forth, you have Congress. The House was engaged for a long time and what very much appeared to be a coordinated effort to obstruct the FBI investigation. And we don`t know anywhere near enough about the House members and their staff and what connections and coordination and collusion they had with the President and his lawyers and the White House Council in coordinating the response to this.
We don`t know anything about it but we do know that the House was just hopeless in terms of looking into this in any kind of a sincere way. They were just blocking for the President. Now the White House is in Democratic hands and in addition to the 17 investigations that you showed, there are going to be subpoenas starting to land, there are going to be witnesses starting to be interviewed these dubious assertions of privilege are going to be explored and I think exploded and a whole new amount of public information is going to come pouring out through the legislative branch.
HAYES: There`s a story today about Nancy Pelosi sort of successfully reining her caucus in persuading members of the Democratic caucus to not jump ahead on things like impeachment, to wait until the Mueller report comes out and not to get ahead of things. I do wonder sometimes and I hear this from Democrats that I interview all the time, they`re very cautious about it politically. But I also wonder like what lens are you looking at this fact through, the politics or the constitutional duty of the oath of office of President to take care of the laws are faithfully executed and you`re a constitutional duty to constrain a possible criminal presidency?
WHITEHOUSE: I think what you want to do in these circumstances is proceed firmly but cautiously enough that you`re not out way with your mouth ahead of the evidence because you don`t want to be caught with your mouth way out ahead of your evidence. You want to take your time, you want to be patient and smart and thorough about building your case and you probably want to hold a few things back if you possibly can so that when you deliver they really come as punches and not just a lot of speculation.
So I think that people like Jerry Nadler and Adam Schiff are very, very good lawyers and they understand this very well and I don`t think they`re going to be investigating with their mouth. I think they`re going to be using their tools very cautiously very prudently and very firmly to make sure that they actually get the real facts out. But some of its going to be like shooting ducks in a barrel. I mean these bogus assertions of executive privilege, good luck defending that.
HAYES: All right, Senator Sheldon Whitehouse, great thanks for taking some time tonight.
WHITEHOUSE: Good to be with you.
HAYES: Coming up, what we learned from newly released Senate reports about Russian efforts to suppress African-American vote turnout and how the Russian strategy lined up uncannily well with the Trump strategy in two minutes.
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HAYES: The misinformation effort on the part of Russian trolls to help get Donald Trump elected was far greater than we had previously known. Two new reports prepared for the Senate Intelligence Committee examined millions of posts that Russia`s internet research agency posted online with the Russians pretending to be Americans.
Some of the memes are quite something. This one, for instance, tells you to "like for Jesus team, ignore for Satan team" or even fake hotlines. They set up actual hotlines posted online for people struggling with their sexuality or other issues creating an opportunity in the words the report to blackmail or manipulate these individuals in the future.
But what stuck out most to me was the aggressive Russian effort to target African-Americans specifically. They deployed memes like this opposed to a page called Black matters in an effort to suppress African American support for Hillary Clinton. Part of the reason that tactic jumped out of me is that it`s a very strange tactic. It is not normally part of the campaign toolkit to take some demographic group and try to suppress them in your messaging. And it also happens to be the same tactic used by none other than the Trump campaign.
Shortly before the election, a senior official told Bloomberg "we have three major voter suppression operations underway targeting idealistic white liberals, young women, and African Americans. After he won the presidency, Trump even took a victory lap where he celebrated the suppression of black votes.
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TRUMP: We did great with the African-American community. They didn`t come out to vote for Hillary. They didn`t come out. And that was big so thank you to the African-American community.
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HAYES: Joining me now to discuss the voter suppression efforts, Sherrilyn Ifill, President, and Director-Counsel NAACP Legal Defense and Educational Fund. Sherrilyn, obviously voter suppression is a time-honored tool in American politics going all the way back and from you know, the Reconstruction era, but the tactic of selecting groups with a message to tell them not to turn out struck me as weird when the Trump campaign copped to it, and it`s weird to see it show up in the Russian report. What do you think of it?
SHERRILYN IFILL, PRESIDENT AND DIRECTOR-COUNSEL, NAACP LEGAL DEFENSE AND EDUCATIONAL FUND: Well, last week, Chris, we filed a complaint in federal district court in Alabama challenging the way members of the City Council are elected in Pleasant Grove, Alabama where the black population is 46 percent but no African-American has ever been elected to serve on the City Council. That`s the kind of voting scheme that we are familiar with that is designed to keep African-Americans from being able to elect representatives of their choice.
We also sued Waller County during the Midterm because of the disparities in early voting that they provided to students at Prairie View A&M. That`s the kind of voter suppression tactics were used to seeing. We all saw what happened in Georgia with absentee ballots and we`ve seen some of the work around election fraud that has emerged in the in the last few weeks.
So frankly the targeting, particularly of African-American communities to try to keep African-Americans from voting whether by robocalls, by discriminatory voting schemes or even by campaign tactics, is tried-and- true and not weird at all. It`s also not weird that outside forces recognize that racism is a vulnerability in the United States that can be exploited.
It used to be during the Cold War that the American leadership, white American leadership feared that the Soviet Union would benefit from images flashing across American screens of civil rights workers being beaten. And that was part of the reason for some of the support for civil rights gains within Africa -- within white leadership in this country.
So it`s also not surprising that that`s a vulnerability. What`s shocking and really intense in the two reports, the studies of the 2016 election is the extent to which Russians targeted African-American voters in particular with messages designed to provide misinformation, to manipulate and to divide. We knew some of this from Mueller`s indictment of this same group in February about paragraph 46 of his indictment, lays it out in detail. We knew that Facebook and Instagram had been used but we did not know the extent of it until these reports. And the extent of it is quite extraordinary.
In fact, principally among all the groups targeted African Americans received the most attention by these Russian troll farms. The understanding that African Americans should be targeted to try to keep them from voting for Democrats but also recognizing the way in which racism and racial tropes could be used to stir up racial divides in the election. Very shocking and very concerning.
HAYES: Yes, there was -- the quote from the African Americans were single group targeted most heavily by the IRA and it wasn`t even close margin. I want you -- had an interesting thread this morning and obviously this -- you`ve been doing work specifically on race and the franchise and access to voting for a very long time in a domestic political context. And you know, the thread this morning that was sort of about the kind of pinch of this, the bite of this in that context and specifically why it matters to you.
I think there are a lot of people say, look America`s racial issues the problems of white supremacy in America and disenfranchisement, Russia didn`t make those. That`s born and raised in the USA and this is a search -- an attempt escape goat. Why does it matter to you that the Russians were using this particular tactic?
IFILL: Because I just -- you know, this is exactly right. I just described how the kind of intense resources we have to bring to challenge voter suppression and voting discrimination at the local level, at the municipal level, at the state level. We had to sue President Trump for his election integrity commission. So African Americans have to deal with the challenge of voter suppression that is you know, that comes at us from state and local governments and since the Trump election even from the federal government.
Now what we`re learning is that we have to face voter suppression efforts by foreign governments. And in this case, what is concerning and what we have to learn from the Mueller investigation is whether not only do we have to face that challenge from foreign governments using social media platforms but whether or not social media platforms, Facebook, and Instagram, and others are willing to be sufficiently vigilant to try and stop this effort, and whether there are domestic campaigns who rather than as the American government during the Cold War was concerned and responded to civil rights efforts in an effort to keep that influence from happening whether there are domestic campaigns who align themselves with these efforts by Russia and Russian interests to try and suppress black votes.
There were efforts here to keep black people from voting. If you look at the messages, the messages are trying to keep black voters from coming out to the polls and that`s voter suppression. Those are messages of voter suppression like robocalls saying don`t come out on Tuesday, come out on Wednesday. So the question now is not only are these efforts happening and what are we going to do to stop them, but are there domestic political interests that would be willing to line up with foreign nationals and foreign interests to try and suppress the African American vote.
HAYES: Sherrilyn Ifill, thank you so much for being with me tonight.
IFILL: Thank you, Chris.
HAYES: Ahead, a federal judge rules ObamaCare unconstitutional and while Trump takes a victory lap, why this could ultimately be bad news for Republicans. We`ll make sense of it all after this.
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HAYES: The 40 House seats the Democrats gained in the midterms came in no small part from their focus on health care, particularly the protection of preexisting conditions and the protections for them. While Republican candidates, many of whom had joined the lawsuit asking a court to strike down all of Obamacare, pretended they wanted to protect people with preexisting conditions.
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SEN. TED CRUZ, (R) TEXAS: I want to repeal Obamacare, reduce premiums, protect preexisting conditions.
UNIDENTIFIED MALE: That`s why I`m taking on both parties and fighting for those with preexisting conditions.
UNIDENTIFIED FEMALE: I voted to protect people with preexisting conditions.
GOV. SCOTT WALKER, (R) WISCONSIN: So, covering preexisting conditions is personal to me. Plus, it`s just the right thing to do.
JOSH HAWLEY, (R) SENATOR-ELECT MISSOURI: Earlier this year, we learned our oldest has a rare chronic disease, a preexisting condition. I`m Josh Hawley. I support forcing insurance companies to cover all preexisting conditions.
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HAYES: Nice, Missouri senator-elect Josh Hawley was one of the 20 state attorneys general who have now won a lawsuit in federal district court to destroy Obamacare and get rid of all of its consumer protections, including protections for those with preexisting conditions. If the ruling had gone into immediate effect, his own son would lose the protections that the law now afford him.
President Trump, whose Justice Department in a highly unusual move refused to defend the law, took a victory lap after the ruling. And now it is crucial to understand that the judge`s ruling will not take effect unless it is upheld on appeal. Many observers believe that is unlikely. But for Republicans trying for years to get rid of the health care law that is now widely popular, the dog looks like it might have finally caught the car.
Nicholas Bagley is a University of Michigan law professor whose op-ed in The Washington Post is entitled the latest ACA ruling is raw judicial activism and impossible to defend. I guess I know where you came down on it. Why do you not like this decision, Nick?
NICHOLAS BAGLEY, UNIVERSITY OF MICHIGAN: Because it`s impossible to defend.
You know, the judge here came up with a ruling that it`s hard for me even to describe how he reached the conclusion he did. What he said is that the individual mandate cannot be sustained now that congress has repealed the penalty for going without coverage. So even though congress repealed the penalty, which seemed to make the law less coercive...
HAYES: Right, less onerous. Like, you no longer pay a penalty. So, the thing that the conservatives didn`t like, which it was coerce. You had to pay a penalty. They took that away and now he`s saying, well, now it`s unconstitutional.
BAGLEY: Yeah, he`s saying the individual mandate because there`s this naked instruction that apparently, he says, is left in the statute. That`s a command that congress can`t -- doesn`t have the constitutional authority to adopt. And therefore, the individual mandate, which by the way, can`t be enforced, is unconstitutional.
And, you know what, that`s not even the most audacious part of the holding. What is audacious is what he does next is he says, well, what should the remedy be? What should we do if this individual mandate, which is unenforceable, happens to be unconstitutional? He says the whole act has to fall, every bit of it, not only the protections with people with preexisting conditions, but also the Medicaid expansion, also rules about calorie counts at chain restaurants...
HAYES: Everything. Down to every letter.
BAGLEY: Lock, stock, and barrel.
HAYES: This is the thing, though, also, let`s be clear, the plaintiffs, including Josh Hawley and Scott Walker and his attorney general, and the DOJ not defending it, that`s what they asked for, right. I mean, they said, get rid of the whole damn thing.
BAGLEY: This is exactly what they asked for.
Look, and every time they said they were supporting protections of people with preexisting conditions, while they`re supporting this lawsuit I think that`s just not telling the truth. This lawsuit is absolutely going to strip those protections away if it is upheld on appeal.
HAYES: Well, that`s the big question, what`s going to happen with it next?
BAGLEY: well, it looks like it`s going to stick with the District Court a little bit. It could take a little time.
But I think there is good reason to think that the court of appeals for the 5th Circuit, which is going to hear the case, is unlikely to sustain the judge`s ruling. There are a lot of problems with it. It looks like the plaintiffs probably don`t have standing. It looks like its constitutional analysis is wrong. And I can`t find any conservative who is willing to defend the view that the proper outcome here is the toppling of the entire statute. It`s very hard to find reputable conservative legal scholars who are willing to go out and defend this.
And then even if the 5th Circuit were to do the wrong thing and uphold this outrageous judgment, the Supreme Court has taken two swings at the Affordable Care Act and in both cases, Chief Justice Roberts said, you know what, this is an act of congress. I`m going to sustain it.
HAYES: Let`s just be clear, those two swings were much stronger cases than this, wouldn`t you say?
BAGLEY: Oh, infinitely stronger cases. So if you didn`t do it when the ACA was much closer to the point where it had just gotten -- just begun implementation, and much stronger challenges, I find it hard to see how you count to five at the Supreme Court, at least with its current composition.
Nicholas Bagley, thank you very much.
BAGLEY: Happy to be here. Thanks.
HAYES; Coming up, Senator Jeff Merkley of the nearly 3,000 children living in a tent city on the border and the families stuck in Mexico waiting for their chance to seek asylum.
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HAYES: Thing One tonight, as the scandals close in on Donald Trump, it`s no wonder he`s had a tough time filling positions at the White House. By all accounts, his search for a new chief of staff has been painful, and Trump was publicly turned down by his top choice, Nick Ayers, who decided he`d rather leave D.C. altogether than take the job. And then Chris Christie also very publicly turned down the president, perhaps deciding he has suffered enough humiliation standing behind Trump.
And then as the president became more desperate. It seemed started looking around the White House for anyone who could take the job. Son-in-law Jared Kushner was rumored to be under consideration, but escaped somehow. Strangely, though, as far as we can tell, Trump`s senior adviser Stephen Miller was never considered for the job. It`s weird because Miller has been with the president from the get-go, and has never wavered in his support.
There he is on the left stumping for Trump on the campaign trail in 2016, on the right just yesterday out there yesterday on the Sunday shows pushing the Trump agenda. No matter what turmoil has engulfed the White House, Miller has stood strong with the president, whether he`s heading off to campaign rallies last month as seen on the left, or again on the right, acting as a faithful surrogate for the president`s message on TV yesterday.
No chief of staff offer for Steve Miller, no, it was a different guy who lost the high stakes game of musical chairs, and all because he happened to be in the White House on the wrong day. That`s Thing Two in 60 seconds.
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HAYES: So, two things have become pretty clear over the past week. One, that nobody wanted the job of chief of staff; and two, that fact was very embarrassing to the president. Trump tweeted over the weekend, "for the record, there were many people who wanted to be the white house chief of staff. announcing that after everyone else had turned it down, he had chosen Mick Mulvaney.
Mulvaney was, until recently, both the acting head of the Consumer Financial Protection Bureau, and the director of the Office of Management and Budget, and apparently he`s going to keep doing that job at OMB, because, well, everyone needs a plan b.
Mr. Mulvaney`s budget role that brought him to the White House on Friday in the first place, he went there for a scheduled meeting with the president about the budget and Trump just made him the chief of staff.
Mulvaney was reportedly reluctant to accept the position, but understood the president was in a jamb and felt he didn`t have much choice. But he insisted on the title of acting chief of staff because , you know, plan b. That`s quite a career path for a man who unlike Stephen Miller who has been steadfast in his support from 2016 to 2018, Mulvaney has waffled just a tad.
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MICK MULVANEY, DIRECTOR, OFFICE OF BUDGET AND MANAGEMENT: Yes, I`m supporting Donald Trump. I`m doing so as enthusiastically as I can. The fact I think he`s a terrible human being. Do I like Donald Trump? No. Is he a role model for -- my 16-year-old triplets, for those who don`t know, two boys and a girl? Is he a role model for my sons? Absolutely not.
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UNIDENTIFIED MALE: A political bombshell two days before the midterm elections in his role as secretary of state, Brian Kemp is accusing the Democratic Party of Georgia of trying to hack the state`s voter registration system. Now, it`s a move Democrats are calling a political stunt.
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HAYES: That happened the weekend before the election between Brian Kemp and Stacey Abrams, an election that Kemp would go on to win by a razor thin margin, as Georgia`s closest gubernatorial election in 52 years. And that win came with a lot of help from candidate Brian Kemp from Secretary of State Brian Kemp who used his position overseeing the state`s electoral systems to stack the deck in his own favor through things like voter purges and freezes on new voter registrations.
But nowhere was the abuse of his power more audacious than the grenade he threw into the campaign a few days before the election in which his office formally accused Democrats of, quote, a failed attempt to hack the state`s voter registration system.
Now, even at the time this seemed a truly outlandish accusation. I mean, think about it for a second. You think the Georgia Democratic Party really tried to brazenly hack the state`s election system?
But it also seemed outlandish the secretary of state would just, as brazenly, make up such a serious charge just in order to help him win an election.
Well, thanks to thorough investigation by the team at the Atlanta General Constitution, we now know the whole thing was utter bunk. Quote, "no evidence supported the allegations against the Democrats at the time, and none has emerged in the six weeks since." In fact, to anyone that watched Kemp attempt to spin his baseless accusation in real time in the normally friendly confines of Fox Business Network, you could have seen the truth right there on his face.
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UNIDENTIFIED FEMALE: Forgive me, the reason I`m asking you this is because people are questioning your intent. So if you want to clear that up now, I`m offering you that chance to clear up the intent here because they`re saying there was only concern that it could be hacked, that there`s no evidence that there was hacking. Do you have evidence -- sir, forgive me. Forgive me, is there evidence -- did you see evidence...
BRIAN KEMP, GEORGIA SECRETARY OF STATE: ...unless there was evidence to be looked at.
UNIDENTIFIED FEMALE: All right, did you see evidence there was hacking?
KEMP: We have a duty..
UNIDENTIFIED FEMALE: Did you see evidence there was hacking?
KEMP: Ma`am, we would not open an investigation if we didn`t feel like it was warranted. My job as secretary of state is to have...
UNIDENTIFIED FEMALE: OK, still not getting an answer.
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HAYES: Wouldn`t answer the question. Here`s the worst part, the baseless smear directed at his opponent`s party three days before the election was undertaken in order to, get this, cover up for Kemp`s own manifest incompetence, the fact that the state`s voter registration system, which he oversaw, had been left utterly exposed online to hackers.
And it wasn`t the first screw up of that kind. In fact, in 2015, his office managed by accident to publicly distribute a trove of confidential information about every single Georgia voter. Nice work.
And now he is about to be governor. But there is an enormous asterisk next to his name and his legitimacy. And one step he could take to try to clear that up would be to simply authorize the release of the more than 80 internal emails from the weekend before the election day that the agency is currently refusing to make public, but something tells me this man has a lot more to hide.
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HAYES: There is appalling new video tonight of migrants waiting for entry to the United States. As a reminder, the U.S. government is now in possible contravention of our laws, preventing many people from legally crossing the border to a port of entry to ask for asylum. And as people wait in Juarez, Mexico, this is how they`re tracking people. This is the method being used to keep track of migrants who want to ask this nation for refuge. Vaccine officials are writing numbers on people`s arms, something with obviously some awful historical connotations.
Meanwhile, in Tornillo, Texas 2,800 migrant children are now being housed in a giant tent camp, which was never meant to house children permanently.
Here with me now, Senator Jeff Merkley, Democrat of Oregon who just returned from a trip to Tornillo himself.
Senator, you were in Tornillo -- and I want to be clear, these are unaccompanied migrants who have come over as unaccompanied children. They have not been taken from their parents, by an large. What are the conditions like there?
SEN. JEFF MERKLEY, (D) OREGON: Well, the conditions in the camp are OK in the sense that there is food. There is heat. There is shelter.
But here is the big picture, you have those 2,800 children you mentioned, they`re part of a prison -- child prison camp system now housing more than 15,000 children across America.
And that particular camp that we went to, we found out a couple of things that really shocked us. Number one, the director said that 1,300 of those children, roughly half of them, could be in a house in five days if the Trump administration would complete the paperwork. They already have sponsors. They`ve already gone through the background checks.
Furthermore, when I asked about the Flores consent agreement in which children are not supposed to be in prison for more than 20 days, they told us that over 2,000 of those children have been there more than 20 days, that the administration is asserting that because this is an emergency and so-called temporary facility, they`re not bound by limiting the imprisonment for 20 days, and some children have been there for months, inflicting deep, profound life-long trauma on these children.
HAYES: The 1,300, both of those are startling facts. I want to go back to the 1,300 children. What you`re saying is there are people inside the U.S. who will sponsor them who are family members or caregivers connected to the children, that`s been verified, the children could go with them, and the government has yet to process the paperwork and is keeping them instead in a tent city?
MERKLEY: According to the director, he said he could have 1,300 children in homes within five days if the Trump administration would complete the paperwork.
HAYES: Wow.
What about the -- there`s also this question right now about the death of a 7-year-old girl, Jakelin Caal. I know that you have been part of the senate`s letter on that and have written about it.
There is a question about whether members of congress can talk to the agents or investigate the conditions under which she was given care and then eventually died. What do you know about that?
MERKLEY: Well, I hope the House is going to be able to have a full investigation. Clearly, it`s very difficult under the Republican leadership of the House and Senate, because they`re not interested in investigating these matters.
And by the way, in kind of a very related way, our congressional delegation, five of us there, three senators, two House members, we asked to speak to children at Tornillo to find out what`s really going on with their care and the circumstances of them being detained there for very long periods of time, and we could not get permission from the administration to talk to any of those children.
And we`re not talking about disclosing their names or their medical record or anything else that would create any danger for them, we wanted to find out their stories to understand what they`re suffering, what they`re going through. The administration would not let us exercise that oversight and have a conversation.
HAYES: So you are a member of congress, and congress has the power of the purse, and someone`s funding the Tornillo camp. I`m confused about like if congress said no more of this, don`t you have the leverage to cut it off?
HAYES: We do have that leverage. And under Republican control of the House and Senate, there has been no willingness to even hold a hearing, let alone consider exercising the power of the purse. That camp is costing the American taxpayers somewhere in the vicinity shy of a million dollars a day, not quite a million dollars a day. It`s vast sums, it`s extraordinarily expensive compared to case management for individuals who are with sponsors.
HAYES: Final question here about the children that are just over the border in Juarez, and we`re all seeing these images, which I think people just find appropriately viscerally morally shocking to watch numbers being written on people. The origin of that is the administration has chosen to close ports of entry. Is the U.S. government in violation of its own laws in doing so?
MERKLEY: I think it to me it clearly seems to be in violation. And even the administration has said don`t cross in between the ports of entry, come to the ports of entry. When they come to ports of entry, at port of entry in place after place, they have been blocked.
I witnessed this on Father`s Day, on June 17th at McAllen crossing. I saw four border guards stopping anyone who didn`t have a passport or visa who wanted to assert asylum. There was plenty of space on that day, plenty of place in the conversation dialogue rooms and in the processing center, and we certainly heard documentation from human rights groups that this is being done in a systematic way, throwing people back to the Mexican side where they have absolutely no support structure, where they`re incredibly vulnerable to gangs. It`s just a real plight and abuse of both our law and our international commitments under refugee agreements.
HAYES: Senator Jeff Merkley, thank you for sharing that.
MERKLEY: Thank you, Chris.
HAYES: That is All In for this evening. The Rachel Maddow Show starts right now. Good evening, Rachel.
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED. END