The Beat with Ari Melber, Transcript 8/2/17 Trump Advisor: “None of us are ever really gone”(

Vanita Gupta, Ilya Shapiro, Jerry Nadler, Taylor Davis, Jamil Smith

Date: August 2, 2017
Guest: Vanita Gupta, Ilya Shapiro, Jerry Nadler, Taylor Davis, Jamil

CHUCK TODD, MSNBC HOST, “MTP DAILY”: That`s all we have for tonight, but
the beat goes on because THE BEAT with Ari Melber starts right now. Mr.
Melber, how are you doing, brother?

ARI MELBER, MSNBC HOST, THE BEAT: I`m good, Mr. Todd. And, Chuck, I`m old
enough to remember 1999, 2000 back when McCain was then more popular among
the Democrats, right?

TODD: Everything old is new again.

MELBER: Thank you, Chuck.

TODD: You got it, brother.

MELBER: The story we brought you exclusively last night, allegations “Fox
News” pushed a false murder report to undercut the Russian inquiry is
heading towards the White House tonight.

Did President Trump personally push that false “Fox News” story? The White
House again beating back allegations from an investigator who worked with
Fox News on a now retracted story that a murdered DNC staffer might have
fed emails to WikiLeaks?

A discredited conspiracy theory that Fox News pushed hard before backing
down, in this case, includes a private investigator who says “Fox”
slandered him by misquoting him in the story.

A wealthy Trump supporter rebutting the allegations who previously said he
texted the president about it and the president`s people and Sean Spicer,
who met with both men.

Now, let me be clear. There is a lot we still don`t know about this
unfolding case, but it is raising tough questions. Like, why “Fox” rested
their conspiracy theory on a source they now say is incredible and whether
a president who calls the truth “fake news” was actually getting into the
fake news business himself.

This lawsuit argues the answers to those questions can actually be found in
the texts, emails and calendar entries they have, specifically calendar
entries that overlap with the president`s activities in the run up to the
“Fox” story.

That was rocky period, including May 15, when Trump revealed classified
info to Russian officials at the Oval Office; May 16 when the news broke
that Trump pushed James Comey to try to go easy on Mike Flynn; and then May
17, the day that marks the before-and-after for the Trump presidency, that
appointment of special counsel Robert Mueller.

A president under siege, “The New York Times” was reporting on that day on
the chaos and confusion roiling the Trump White House, saying the
president`s mood was sour and dark that he`s turned against most of his
aides, even his son-in-law Jared Kushner, describing them in a fury as

That was the backdrop for the “Fox News” report at the time on the unsolved
murder of a DNC staffer, Seth Rich, beginning to make headlines. And
investigator Rod Wheeler, his new lawsuit against “Fox” says that he was
misquoted in those headlines, in those articles to push a fake news story.

Here`s what he told me.


MELBER: Why do you think, as you allege, they made up quotes from you?

ROD WHEELER, PRIVATE INVESTIGATOR: Well, I think - well, I know for a fact
that Ed Butowsky, who was the individual that was funding my investigation,
he had been in contact with people from the White House and he was the one
that was pushing this Russian hacking narrative, by the way, that I didn`t
know a whole lot about because I wasn`t trying to debunk a narrative or
support a narrative. I was trying to find a murderer. I do know that.

And Ed even admitted himself.


MELBER: He may not have known a lot about that and a lot of people don`t
know a lot about Ed Butowsky, but this is all coming to a head tonight for
the Trump White House.

Now, we`ve obtained a voice mailer from Wheeler - this is a May 14
voicemail, a message was left by that man, Ed Butowsky.

Now, this is just - to put in context - a day-and-a-half before that story
first appeared on “Fox News”. Here`s a portion of the audio.


couple of minutes ago, I got a note that we have the full attention of the
White House on this. And, tomorrow, let`s close this deal, whatever we`ve
got to do, but you can feel free to say that the White House is on to this


Joining me now, Christina Greer, professor of political science at Fordham
University; White House correspondent for “The Daily Beast”, who previously
worked at the Heritage Foundation; and Jonathan Capehart, an opinion writer
for “The Washington Post” and an MSNBC contributor.

Jonathan, if the president or his staff were involved in this, as Mr.
Butowsky asserted at the time in that voicemail, what does that mean and
where does this story go from here?

CONTRIBUTOR: Wow! It means that the administration from the president on
down that complains constantly about fake news was actually involved in
perpetuating and proliferating actual fake news.

This lawsuit is incredibly damaging that. Even the allegations, the audio
that you just played, the implications that come from this, this comes at a
time when the Trump administration, when the president himself, the
credibility of the institution is now at stake.

There are people in the briefing room, people around the country who are
now looking and wondering what is it that comes from the White House that
can be believed.

And the fact that there is a lawsuit alleging that the president was
personally in on this, briefed on these things, and wanted this false story
out as part of a larger effort to distract from the Russia collusion story
is something that should concern this White House.

MELBER: Yes. And this man, Mr. Butowsky there, we heard the voicemail, we
also now know publicly confirm that he did meet with Sean Spicer. So, it`s
not just any random guy`s voicemail.

Now, here was Sean Spicer when asked about that around that time.


UNIDENTIFIED FEMALE: Can we get a White House reaction or the president`s
reaction to the report that Seth Rich was emailing WikiLeaks before his

- generally, I don`t get updates on DNC - former DNC staffers. I`m not
aware of that. I don`t even know the status of it in terms of DC. But it
would be highly inappropriate to do that.


MELBER: Christina, that`s what we call a generalized denial because he
didn`t say I don`t generally get updates.

The most interesting part is him acknowledging that kind of thing would
actually be inappropriate.

I think in this particular administration, with this particular president,
we know that they traffic in lies, in chaos and collusion.

And so, this - if it is any other president, this would be a story that
would last a week, a month, it would be on every single front page.

However, with this president, we have Jared testifying in front of Senate
committees, we have the president making outlandish comments to middle
school boys at a jamboree, we have him going to Long Island making
outlandish comments, such as saying that the police should collude and harm

So, every day, there`s something else thrown at the American public. And
so, in many ways, this administration is like a Three-Card Monte. We don`t
know where to look.

And this is a story that we must actually stay on because in political
science we talk about the media being the fourth wing of the government,
right? There is the executive, legislative, judicial branches and the
media is the fourth branch.

The media is not actually listed in the Constitution as the fourth branch.
The president is listed as one of the three branches of government, and so
we have to hold him accountable.

And it`s the media`s job to make sure that they`re not trafficking in fake
news. But this president certainly does not understand or respect the
boundaries of his job. And we know that he likes to meddle. He likes to
meddle with this son, father of five, right? He likes to meddle with
others who are trying to do their jobs because he fundamentally doesn`t get
the gravitas of the office.

And so, when you have something like this, where he`s just like, well, I
mean, you know - he`s talking to different people, he`s making sure a story
gets out there because he loves Fox.

He was just having dinner with executives from Fox and media personnel from
Fox. So, he wants them to be his extra wing because he feels like people
aren`t sort of sticking up for him the way they should.

But this is something that actually could get him in a lot of trouble. The
problem is, tomorrow, we know that it would probably be some other story
that`s just as egregious, just as chaotic. That`s not good (ph) for
American democracy.

MELBER: Well, lucky for you and people who care about this story, it`s not
tomorrow, it`s tonight.

Lachlan, is this a fake news chickens coming home to roost at the Trump
White House or do you view this and do conservatives at this point view
this as somehow overblown?

these allegations right now are just that. They are allegations.

But I thought it was very interesting during yesterday`s White House press
briefing, at the very end, when Sarah Sanders was asked about the merits,
does the president believe the predicate of this initial “Fox News” story
that Seth Rich was somehow involved in the hacking of the DNC, and she said
I`m not sure and then immediately ended the press briefing.

And I don`t think that`s a tenable position for the White House to sort of
leave that out in the open like that. I think, with this lawsuit, they`re
now going to be forced to weigh in sort of more on the merits of the story
and what does the president actually here. Does he sort of buy into this
conspiracy theory?

MELBER: Well, and I appreciate your word choice because we all choose our
words carefully. Predicate is a very fancy word for a discredited,
scurrilous and frankly disgusting allegation built on the unsolved murder
of a young man, who by no public evidence had anything to do with the
felonious hacking in the Russia case.

MARKAY: Yes. The attorney for Mr. Wheeler is now saying he might even be
looking to depose the president at some point as part of this lawsuit. So,
we`re looking at potentially explosive developments with respect to the
White House going forward and I expect this to continue coming up.

And I agree with Christina that reporters need to continue pressing this
because this sort of I-don`t-know-what-the-president-thinks that is thrown
out in response to so many questions in that briefing room, I don`t think
is going to cut it here.

MELBER: Right. I mean, it`s very significant for all those reasons.
Jonathan Capehart, I want to play Mr. Butowsky`s response. I want to
mention, as I did last night, we invited him as well as White House
officials on this program.

White House is not responding (INAUDIBLE) when Mr. Butowsky was in touch
with our staff, but at this juncture isn`t doing TV interview tonight. We
respect that.

But here is how he tried to recharacterize what are pretty blanket
statements that he had White House contact. Take a listen.


BUTOWSKY: I was never talking about the White House. By the way, I`ve
never talked to President Trump in my life. And President Trump nor the
White House has anything to do with any of this.

This was a tongue-in-cheek talking, just texting, wasn`t serious because
Rod Wheeler was always looking for a job because he has no money.


MELBER: Jonathan Capehart, what do you think of that defense? You covered
a lot of stories where political explanations shift?

He`s saying the texting, the emailing, the voicemail which we played at the
top of THE BEAT here tonight were all jokes.

I don`t know, the voicemail didn`t have a lot of jokey format to me. It`s
his voice.

CONTRIBUTOR: You mean to tell me that on a story this big - let`s just say
that this big story was actually true. A story where you`re in contact
with the White House, where the president is saying we`ve got to get this
story out immediately, where you`ve gone in to meet with the White House
Press Secretary Sean Spicer to talk about this story, and now that it`s
been blown up and shown to be false that suddenly all of these things are

It doesn`t pass the laugh test. It doesn`t pass the smell test. And I
think because of that - because Spicer was - when he first asked about it
denied it, and then to NPR, when the story broke, actually said yes, in
fact, I did meet with them.

That says at least to my reporter nose and ears that there is smoke there
and there`s crackling there. And because the president`s name has been
invoked in this horrible case, reporters, I think, are duty-bound to run
this story down as far as they can to find out what actually happened, how
is it possible that someone pedaling in a conspiracy theory and pushing out
fake stories was actually able to have a meeting with the White House Press
Secretary to help push the story along.

There are big troubling questions here for our country, to be quite frank.

MELBER: Christina, final thoughts?

GREER: So, we know a few things. One, Trump`s base loves conspiracy
theories. Two, we know that Trump has no bottom and he is willing to throw
a murdered innocent man under the bus to protect himself.

And I think if we remember those two things, hopefully, the media will
stand the story and Congress will do their jobs and actually Republican
members of Congress to really push to make sure that there`s a committee to
really investigate this much more heavily.

MELBER: All important points. And I reiterate the White House has issued
some blanket denials, but the invitation is open if they want to come and
really submit to questioning.

That`s what Mr. Wheeler was willing to do last night and the invite is
open. Christina, Lachlan and Jonathan, appreciate your time and reporting
on this.

No, coming up, other fireworks at the White House briefing today. A
controversial aide, back in the spotlight on immigration.

And will the Trump Justice Department really use these civil rights
division to launch a new attack on Affirmative Action. We have a debate
tonight including the DoJ prosecutor who led that division under Barack
Obama and a conservative perspective.

Later, a special breakdown on Trump`s evolving legal defense on the Russian
inquiry, what he was saying then and what he`s saying now. You won`t see
this anywhere else.

I`m Ari Melber and you`re watching THE BEAT on MSNBC.


MELBER: Donald Trump`s aides, they come, they go and then they come back.
Controversial advisor Stephen Miller had been in a media block out for
months since his widely panned round of interviews in February about the
travel ban.

But today, after six months, he came roaring back in the briefing room.


STATES: Maybe we`ll make a carve-out in the bill that says “The New York
Times” can hire all the low-skilled, less pay workers they want from other
countries and see how you feel then about low-wage substitution.

are people who come -

MILLER: But that`s not what you said. And it shows your cosmopolitan
bias. And I just want to say -

ACOSTA: This seems like that you`re trying to engineer the racial and
ethnic flow of people into this country.

MILLER: That is one of the most outrageous, insulting, ignorant and
foolish things you`ve ever said. And for you, that`s still a really - the
notion that you think that this is a racist bill is so wrong and so


MELBER: Miller kept repeating that phrase cosmopolitan bias, which sounds
like a cross between elite prejudice and some kind of cranberry cocktail at
a DC happy hour.

But Miller`s return from Trump probation does follow a pattern. Once
you`re in Trump world, you may get benched to tack your set (ph), but the
rule is he who fights and runs away may live to fight another day.

New reporting that even Anthony Scaramucci could fit the bill. “The
Huffington Post” Vicky Ward notes he might find a second act working for
Trump. Longtime Trump advisor Roger Stone telling her, none of us are ever
really gone. He still has the president`s cell phone, the president`s
private number. Just because he`s not in the White House, no one should
think his influence has gone.

Turns out the same story for Corey Lewandowski, who Trump fired as campaign
manager and had escorted out of Trump Tower by security. “The New York
Times” reporting that the former Trump campaign manager has now started a
new consulting business that puts him “at the center of the ethical
quandary surrounding the Trump White House.”

Indeed, he has the president helping him give him access and power to
friends and loyalists who aren`t on the government payroll, but work as
lobbyists. That, from Nick Confessore.

Now, Donald Trump certainly ends political lies, but political death is
clearly not always the end of the road when there are zombie lobbyists and
zombie advisors roaming the town.

Joining us now, the perfect panel. Nick Confessore, “The Times” reporter
who broke that story as well as our friend Vicky Ward from “The Huffington
Post” who broke the other story.

Heads or tails, that can go either way. But Vicky, you look at this
situation. Scaramucci, does he have a credible reason to think he can

talked to him this morning. He`s fielding calls from various people in the

MELBER: Current cabinet secretaries are talking to Anthony Scaramucci

WARD: Absolutely. He certainly - he might disappear as he said - as I
wrote in the piece, he`s going to go dark for a bit, but he will completely
come back.

And I think that - one of the things I`ve discovered in my reporting and
talking with Anthony is that the president actually quite likes it when
people who`ve worked for him sort of blow themselves up and then sort of
work - have to work their way back.

MELBER: What does he like about -?

WARD: Well, it`s a sort of - it`s an extra demonstration of loyalty, isn`t

MELBER: Is it?

WARD: Even sort of after kamikaze, they are still there.

MELBER: I know this is a - I don`t want to put you on the spot. I know
it`s a great British turn on phrase when we say, it`s loyalty, isn`t it?
But I would ask you back, is it?

WARD: Well, I think - take Anthony, for example. He could wander off. I
mean, he`s made a lot of money, unlike a lot of the other Trump people who
are very reliant on Donald Trump for their livelihood.

Anthony Scaramucci could walk away and go back into the Wall Street world.
But I think the fact that they sort of left on these good terms and
Scaramucci has sort of said, he`d still like to work with the president
when he invites him. That means a lot to Donald Trump.

TIMES”: Look, there`s also a second reason here. The pool of people who
want to work for President Trump is not growing. It is staying the same or
it is shrinking. This is a real problem the president has.

He can`t hire people from the traditional establishment in Washington who
have traditional experience because those people were against him in the
campaign or don`t want to work for a president who is under investigation
for the Russia stuff.

So, he has to rely on the same people over and over again. So, (INAUDIBLE)
and stays swirling around forever, if they are loyal, which is the key

MELBER: Yes. Well, you raise a big point, which is oftentimes, you start
a new job, sometimes you get a new email address, you get a new phone, if
you start at a senior level in the Trump White House, you also have to get
a new lawyer, like right on the way in and you haven`t done anything yet.

But, Nick, you also dug into the fact that it seems that if the concern is
the swamp and pay for play, they are adding zombie alligators to the swamp,
not subtracting.

CONFESSORE: That`s true. Although I would say that the Trump idea of the
swamp is different from the journalistic idea of the swamp, and in fairness
to them.

So, their idea of the swamp is some combination of the media and the
permanent DC establishment and the bureaucracy first and foremost. So,
their idea of the swamp is bureaucrats. It`s not the interaction of money
and influence in Washington.

There is almost no evidence that they intend to get rid of that version of
the swamp.

MELBER: I think you`re right that they talk that way now, but that has
evolved. I was at Trump campaign rallies where he talked explicitly about
bankers, about Goldman money going to Hillary Clinton, which was a
compelling critique we know because it`s one that Bernie and Donald Trump

The problem is that now that finance money and some of that lobby money is
going to Corey Lewandowski as you report.

As for Scaramucci, I want to read the entire quote, if that`s all right
with you.

WARD: Of course.

MELBER: He says to you, I`m now going to go dark. Then I will reemerge as
me. Was it going to - maybe he`d come back as somebody else (INAUDIBLE).

WARD: No. I think Anthony Scaramucci sees himself - and he probably
wouldn`t like me for saying this as mini me to Donald Trump.

One of the things he admires about Donald Trump is the sort of Teflon -
Trump`s invincibility that nothing can -

MELBER: Perseverance.

WARD: Not perseverance. Nothing can sink him.

MELBER: Tenacity.

WARD: Tenacity, thank you. And Scaramucci has that. There`s nothing -

CONFESSORE: And so has Corey Lewandowski. He`s a guy who stuck it out.
Look, he had a first lobbying firm. He basically blew it up because he had
associations with foreign clients, which he didn`t want.

So, he started a new lobbying firm or a pseudo-lobbying firm and has some
of the same clients as the old firm. He is not giving up. He`s staying in
the mix.

MELBER: Final thought. Since you both have such good sources here, what
do you want your sources to know as they`re watching TV, as so many people
in Trump world do. Why did Anthony call you?

WARD: I`ve been talking to - I`ve known Anthony for quite a long time,
many years. And I think he had a few things that needed clarification. I
think most people wanted to know why someone wouldn`t be there for the
birth of their child and why they would have that profanity-laden
conversation with Ryan Lizza of the “New Yorker.”

I think he was actually right to maybe try and put -

MELBER: Add to it. Not let the now infamous New Yorker interview be his
sort of last interview.

Well, thank you both. Appreciate it. Interesting stuff.

Ahead, we take a turn. Can the Trump administration sue colleges over
Affirmative Action policies, by arguing the policies hurt white and Asian

And after the break, we will have the Department of Justice civil rights
division under President Obama here to explain.

Plus later, constitutional crisis. What does that even mean? And are we
approaching one?


MELBER: There are always two sets of stories about the Trump
administration. The story of the Trump White House, a dramatic swirl of
intrigue, leaks, tweets and a shifting cast of characters who spend as much
time talking about each other as they do about the people`s business.

And then, there is the rest of the Trump administration, where many career
Republicans are quietly governing and enacting policy.

That White House story is dramatic, but the story at the agencies often has
more impact on Americans` lives. And that is where drastic policy change
is underway. And there were no big tweets about this. No one called the
“New Yorker” magazine to swear about it.

Instead political appointees are recruiting staff to potentially sue
universities over Affirmative Action to benefit white or Asian applicants
instead of minorities.

The DOJ says it will neither confirm or deny any ongoing investigation on
this issue. Now, we should tell you the Supreme Court has already weighed
in repeatedly upholding at least narrow Affirmative Action programs as

So, it`s not clear how far the Trump DOJ plan, but it could be used to
develop new cases that narrow those policies even further.

Let`s get right to it with Vanita Gupta, former head of the civil rights
division at the Justice Department and Ilya Shapiro, a senior fellow in
constitutional studies at the libertarian Cato Institute.

Vanita, when you look at this report, what does it say to you about the
Trump administration`s approach to Affirmative Action and diversity

OF JUSTICE: Well, I think it was a tele sign that they were asking for
employees to come join the political front office of the civil rights
division to engage in this work.

There already are a number of career lawyers at the civil rights division
who day in and day out are enforcing our anti-discrimination laws to ensure
that there is equal opportunity for all students in this country.

And I think it was just an odd move to move that position into a political
front office that really suggested that there is a different underlying
agenda here aimed at kind of parsing out discrimination against white
students in particular.

MELBER: Ilya, the Supreme Court has decided this multiple times. Is this
really a good place for conservative energy?

don`t know about conservative energy, but if we care about civil rights, if
we care about treating people based on the content of their character
rather than the color of their skin then absolutely, the Justice
Department, I`m heartened, is going to look at whether similarly qualified
applicants are being treated differently. And frankly, this going toward
the lawsuit against Harvard and allegations made there. It looks like
Asian applicants that are similarly qualified are 16 times less likely to
get in compared to black applicants, six times more less likely than
Hispanic applicants. And I`m not surprised by the way that this is being
taken care of by the front office because under the Obama Justice
Department and especially under the Vanita`s tenure, the career officials
were only hired if they had time spent in radical left organizations that
most of which didn`t even recognize that defense is going to be taken -

MELBER: Ilya, Ilya, hold up.

SHAPIRO: - against white applicants.

MELBER: If you want to make those kinds of charges at least on this show,
you`re going to have to do more than use the word radical. Do you want to
name an organization? And then I`ll let Vanita respond.

SHAPIRO: Well, all of these so called traditional civil rights
organizations that are the only kind of diversity they`re interested in is
different colored liberals.

MELBER: I`m not hearing an answer to my question.

SHAPIRO: The Lawyers Committee on Civil Rights, Human Rights First, I mean
all of the traditional -

MELBER: OK. You`re giving a bit of a tell. You think Human Rights First
is radical for advocating human rights?

SHAPIRO: No, the type of - look, this is - we`re getting off track.

MELBER: we`re not getting off track.

SHAPIRO: No, no.

MELBER: You come on TV and you call people radical left because they
support now your words, human rights.

SHAPIRO: No, because - I`m calling them radical because they would not -
countenance claims that someone - that a white person can be - or Asian
person can be discriminated against in the context of educational
admissions. What`s - we just don`t know what`s going on at Harvard and
these other places. And I hope that the Justice Department will

MELBER: OK. It`s your words — your words was radical, your words was
just human rights first. I want to get that on the record, I want to give
Vanita a chance to respond. Go ahead.

GUPTA: The organizations that Ilya is claiming to be radical are all
organizations that are engaged in enforcing the law and protecting our
constitutional rights. If that`s radical then I`m afraid we`re in a
different part of the zone in this country that I don`t want to be a part
of. These are organizations that about preserving the rule of law and
ensuring that the federal civil rights that Congress enacted over for the
Justice Department to enforce over many decades are enforced thoroughly and
appropriately. Look, if there`s real intentional race discrimination in
these programs, that is exactly what the career employees of the civil
rights division do day in and day out. That is what they - that is what
they root out. And so, to call this work radical in any way, I think
really does a disservice to the very real work of civil rights enforcement
that these organization (INAUDIBLE) civil rights division does every day.

SHAPIRO: Except they`re not interested, Ari, in pursuing cases or
investigating even when, for example, Asians are the largest growing
segment in the American populous and yet their numbers at your Harvard`s,
at your elite universities don`t change. They`re not interested in
pursuing cases whether it`s in the voting rights division, whether it`s in
education where there`s allegations of racial preferences being used in
ways that aren`t countenanced by the Supreme Court. And we just don`t know
this kind of holistic investigation or use of race is a black box. And
hopefully, the Justice Department before suing anyone is actually going to
investigate and get the statistics and get data from these universities.

MELBER: Sure. So two things, wait just two things. Vanita, I want you to
speak to that point because Ilya is arguing essentially that these programs
even when well intentions can basically become a sort of quota or act as
he`s saying a kind of discriminatory cap on certain student bodies. In
this case, he`s proposing Asian students. That`s number one I`d like you
to respond. Two, though, for both you, I do want to play then candidate
Donald Trump who said he was fine with affirmative action. So again, we`re
seeing sometimes in the agencies something different than what he ran on.
Let`s take a listen to that.


affirmative action.

UNIDENTIFIED MALE: Should it be expanded or should it be limited?

TRUMP: Well, it should be - you know, you have to also go free market, you
have to go capability, you have to do a lot of things but I`m fine with
affirmative action. We lived with it for a long time. And I lived with it
for a long time. And I`ve had great relationships with lots of people so
I`m fine with it.


MELBER: So, Vinita, speak to the point and I`d love your response Ilya, on
the quote there.

GUPTA: Well, first of all, Ilya`s (INAUDIBLE) made a lot of allegations.
I don`t know what his evidence is whatsoever that the division was in
countenance saying discrimination against any and all groups. And so, let
me just put that to one side. But the reality is that these universities
have been struggling with the reality of needing to engage and produce
diverse student bodies that are going to be able to perform in the global
economy and that is something that they take very seriously. You can`t -
this isn`t about quotas.

The University of Texas case that went up to the Supreme Court and where
the decision came down in June of 2016, so a very recently considered case
was about whether the University of Texas could consider race as one of
many factors in creating a diverse student body. And among factors whether
the person has an athletic ability, whether they are a violinist, whether
they are a legacy student for instance. So, this is a very complicated mix
for admissions officers who aren`t just looking at race at all. That would
be unconstitutional. They are looking at a number of different factors
about what brings the student into diversity.

MELBER: Understood.

GUPTA: If we acted on pure numbers, that would be an easy thing to say
well, this person didn`t get in because they didn`t make the test.

MELBER: And because we`re running out of time, Ilya, your view of if
Donald Trump was going to do this, shouldn`t have he - shouldn`t he have
said so when he was running?

SHAPIRO: Look, I`m against racial preference. I`m not against affirmative
action. And the - by the way, the office of Professional Responsibility at
the Justice Department, it was the - is the agency that found
discrimination claims against whites and others none politically -

GUPTA: Not during my time.

MELBER: Vanita Gupta and Ilya Shapiro, this important issue, it may be
back in the headlines with these cases continue and we`ll have you both
back on if you join us. Appreciate your time.

GUPTA: Great. Thank you.

SHAPIRO: My pleasure.

MELBER: We heard lots of talk about the Russia inquiry and how it could
lead to a constitutional crisis. What does that really mean and how do you
avoid it? I have Congressman Jerry Nadler here straight ahead.


MELBER: Two words we keep hearing, constitutional crisis but not everyone
agrees on the definition.


UNIDENTIFIED MALE: We were heading toward all along and that`s a
constitutional crisis.

SEN. AL FRANKEN (D), MINNESOTA: You know, recess appointment of Attorney
General who can then fire Mueller, that`s a constitutional crisis.

SEN. CHUCK SCHUMER (D), NEW YORK: I can`t imagine they could be complicit
in creating a constitutional crisis.

SEN. RON WYDEN (D) OREGON: My own view is if the President fires Bob
Mueller without cause that is going to trigger a constitutional crisis.

UNIDENTIFIED MALE: These two actions alone bring us closer to a
constitutional crisis.

UNIDENTIFIED MALE: He puts us in a constitutional crisis perhaps worse
than October 20th, 1973 when President Nixon fired the Special Prosecutor
who was investigating him.

MICHAEL BESCHLOSS, AMERICAN HISTORIAN: We are on our way if that happens
to see a constitutional crisis that will make Watergate look like a minor
event by comparison.


MELBER: So what is a constitutional crisis? It`s when the governing
system faces a fundamental test. One scholar explained it happens when the
Constitution cannot and does not solve the crisis facing the country. That
is when there may be no tool in the Constitution to resolve the problem
between the branches of government. Take Watergate, with the President
follow the rule of law when it was against his personal interest, Nixon
broke some rules but ultimately followed the Supreme Court order to turn
over incriminating tapes. Another example is when the government
disagreements turned to violence like the nullification crisis. President
Jackson threatening to use the military against the state if it succeeded.
Those are historical examples, but what about today? Joining me now is
Congressman Jerry Nadler of New York, Attorney and Chairman or Ranking
Member of the Constitution Sub-Committee for 13 years. What does this term
mean and what does it mean potentially applied in the Trump era?

REP. JERRY NADLER (D), NEW YORK: Well, a constitutional crisis is really
when the constitutional scheme isn`t working. When there`s a basic problem
with the President, for instance, disobeys a court order and says what are
you going to do about it? That would be a constitutional crisis. Because,
what do you do about it, do you order the military, does he control the
military? What do you do? We almost had a constitutional crisis when the
President fired Comey.

He - and he said the reason for firing him, there was some - there was some
dishonesty about it but ultimately he told the Russians and he told NBC
News, the reason he fired Comey was to stop the investigation. That was
resolved by the appointment of Mueller as a Special Counsel. He`s
investigating it. If he were to be fired, that would be a constitutional
crisis because then you have a situation where the President who might or
might not be guilty of crimes and - of crimes against constitutional order
would have stopped the investigation of his own possible crime.

MELBER: So, is that, in your view, what makes it different than say, bad
policy or irresponsible decisions? I mean, you followed presidents in both
parties frankly about things. You`re saying that the nature of the Mueller
investigation makes it a crisis because cutting it off means what?

NADLER: The fact that the President is suspected. His campaign is
suspected of having colluded with a foreign power in trying to in effect
rig an American election. Now that is (INAUDIBLE) if it - if it is true.
We don`t know whether it`s true. It`s being investigated properly. If
that investigation is stopped by the subject of the investigation then you
have a constitutional crisis. And how you solve it is a big question.

MELBER: From your dealings with the administration, do you think there are
officials in the White House who understand that?

NADLER: I think there are officials who understand it would be a real
problem at that point. Then the question would be, what do you do about
it? Now, the ultimate solution of a constitutional crisis is impeachment.

MELBER: Right.

NADLER: But that means, you have to have a majority in the House and two-
thirds of the Senate and that means - and it`s got to be bipartisan just by
the arithmetic.

MELBER: Right, exactly.

NADLER: So it can`t be one party trying to be -

MELBER: It can`t be partisan.

NADLER: It can`t be - although the impeachment of Clinton was partisan.
It was the Republicans not - with no Democratic support and of course, it
failed in the Senate because -

MELBER: Right. You didn`t get any kind of conviction.

NADLER: Right.

MELBER: Congressman Jerry Nadler, thank you very much for joining us.

NADLER: You`re quite welcome.

MELBER: Coming up, it is the people`s house but the current resident calls
it a dump. And later, my special breakdown to the ever changing legal
defense in the Russia inquiry.


House is the people`s house and Michelle and I always joke, we`re just
renters here and the owners are the American people and all those who have
invested in creating this amazing place.

MELBER: That is one way to put it. President Trump, for his part though,
just lit into his own public housing telling some golfers he stays at his
own properties because that White House is real dump. The attack joining
widespread combination especially since the White House is not Donald
Trump`s house to insult. It is the people`s house funded by taxpayers. He
is a temporary tenant. And it`s certainly a change of tone to when he
first moved in and called the White House a beautiful residence, very

Now, putting aside the language, Donald Trump also, more importantly, has a
personal conflict when promoting his own hotels over the White House. He
has spent now 58 days at his properties continuing to profit off of them.
He even doubled the initiation fee at Mar-A-Lago to $200,000 after the
election. With me now for a special discussion is Taylor Davis, a former
Obama and Bernie Sanders supporter who now voted for and backs Donald Trump
and Jamil Smith, a Contributing Writer for the Daily Beast. Welcome to you


TAYLOR DAVIS, TRUMP SUPPORTER: Hi, Ari. Thanks for having me on.

MELBER: Absolutely. Taylor, I want to start with you because you came to
our attention as one of those people out there that a lot of folks are
curious about having backed Obama, you like Bernie Sanders recently but
you`re with Trump. Starting with this sort of kerfuffle, how do you feel
when the President talks this way about the White House?

DAVIS: I think it really comes down do a matter of personal taste. I`m a
little more concerned that we`re making national headline over off handed
comment in a golfing magazine.

MELBER: Yes. Jamil, what do you think? I mean, there is a certain
standard that comes up where other presidents, Barack Obama is one but more
than Barack Obama have been held to a standard about a comment like this
and a lot of folks seem to want to look the other way with President Trump.
What do - what do you think?

SMITH: Yes. I mean, I think, when you look at the conservative media,
they he would have a field day if Obama had said this. So, I think it`s
relevant in that respect number one, but also it tells you a lot about the
man himself. What kind of person takes a job with that kind of importance,
with that kind of power and just disregards it to the point where he just
calls it a dump. I mean, there`s lots of hard working people there, cooks,
janitors, landscape folks who are working their tails off for probably not
nearly as much as Donald Trump is earning and you know, they make that
place beautiful. So I think he probably owes them an apology.

MELBER: Taylor, when you look at the - beyond this story, you look at the
President`s first six months, what grade would you give him and how do you
compare him to Obama who you did previously support?

DAVIS: I mean, it`s very different, I`ll give you that. But I support my
President now. I mean, I`ll never agree 100 percent with policy with
anybody but myself but I would give him an A.

MELBER: An A. And what do you think is the best thing he`s maybe achieved
or done in the first six months?

DAVIS: I think his infrastructure plan is very generous and I think it`s a
great thing for an economy, a reboot if you will.

MELBER: What do you think about the fact that - I mean, you mentioned
infrastructure, they are proposals but he hasn`t passed really any major
domestic spending or legislative program.

DAVIS: Yes, but according to the Hill, it doesn`t seem like it will get
much resistance. He got $1.6 billion put in already for the wall. So, I
mean, the rest is, I mean, even more, generous but I think he`ll get it

MELBER: Jamil, what do you think? And what do you say to people like
Taylor and others who think that Donald Trump deserves more than a six
months chance at this juncture?

SMITH: I`d love to know what infrastructure plan she`s talking about.
Frankly, there hasn`t been any infrastructure plan. There`s been - a wall
is an infrastructure plan. I`d like to - you know, have him talk to all
the folks in places like Cleveland and Minneapolis and Detroit whose
bridges and roads are falling apart. I think that he could have actually
scored a big win had he concentrated on the infrastructure to start. But
instead, he chose to use his political capital to wage the health care
fight, which as we can see, he can`t get that done either. So I`m curious
to know what exactly he`s done so well that has Taylor so happy about his
job performance.

MELBER: Taylor Davis - go ahead real quick.

DAVIS: Yes, you might not have heard but his plan is very generous.
Probably more generous than Bernie`s infrastructure plan was. And he is
allowing, he has proposed $100 billion to states to foresee how they want
to see it done. So that`s the roads in Cleveland and that`s for Cleveland
to decide.

MELBER: As we say in the business, to be continued. Taylor Davis, Jamil
Smith, I appreciate you both coming on. And coming up, the Russia defense,
I`ll explain that`s next.


MELBER: There was one thing many in Washington miss this week about that
report President Trump dictated Don Junior`s misleading defense of the
Russia meeting and has legal ramifications for the inquiry. So tonight,
let`s break down the state of team Trump`s Russia defense because it keeps
changing. Now there are two major defenses to criminal conduct, one,
denial. You didn`t do it. Or two, justification. You did it but it`s OK.
The Trump Campaign began with 100 percent denial.


UNIDENTIFIED MALE: Are there any ties between Mr. Trump, you or your
campaign, and Putin and his regime?

absurd and there`s no basis to it.

UNIDENTIFIED MALE: Did you ever meet with any other person from Russia
that you know?

DONALD TRUMP JR., PRESIDENT TRUMP`S SON: I don`t even know. I`ve probably
met with other people from Russia, certainly not in the context of actual -
a formalized meeting.

TRUMP: The entire thing has been a witch hunt and there`s no collusion
between certainly myself and my campaign.

Russia is a ruse. I have nothing to do with Russia. I haven`t made phone
call to Russia in years. I don`t speak to people from Russia.

I have nothing to do with Russia. To the best of my knowledge, no person
that I deal with does.


MELBER: That`s the clearest defense to any kind of crime, the claim that
it didn`t happen. But that defense fell apart, collapsing regarding a
series of Russia meetings which were exposed for most of Trump`s inner
circle and then came the smoking gun, written e-mail evidence Trump`s son
and top aides met with Russians promising dirt on Clinton. So the denial
went out the window. Trump defenders turn to a justification defense that
it`s OK even if they did it. To be clear, that can be a legitimate
defense, the idea that some actions would be criminal or justified by
special circumstances. A justification defense states that a crime is
justified when the conduct is necessary as an emergency measure to avoid,
say, imminent injury. Think of driving into the opposing lane to avoid
hitting a pedestrian. Now, after the Trump Tower meeting was exposed,
Trump defenders said, maybe if they did it, it`s OK.


JAY SEKULOW, PRESIDENT TRUMP`S LAWYER: There`s no illegality that a
meeting under the circumstances that were described by the release of the
e-mails that Donald Trump Jr. did yesterday, is not a violation of the law.

UNIDENTIFIED MALE: Collusion is not illegal, by the way.

SEAN HANNITY, FOX NEWS HOST: I never understood it anyway. What was the
collusion? Was that a crime? To say release it? To show the truth?


MELBER: Not normal. Never in American history of government leaders or
their close allies, openly suggested foreign collusion is acceptable and
the defense spread with some Republicans suggesting maybe this kind of
meetings were OK. But here`s the bad news for team Trump. A justification
defense is he much harder than a denial defense. It can work for an
emergency like using force and self-defense but it doesn`t usually apply to
crimes without an emergency or necessity. So you can punch someone the
second before they punch you. But you can`t commit tax fraud for six
months and say it was justified because you needed the money to do some
good deed.

And legally that bogus tax defense is closer to try to justify election
interference, because there`s no emergency to rescue the underlying crime
if there was one. Now, President Trump might be learning, as he goes along
because the most important thing about his dictation of Don Junior`s
defense is that it did not justify anymore. It did not mitigate. They
went back to denial. Whenever you think of Trump, he`s known the line
between controversy and danger and he told his son, the best defense was to
deny the purpose of the meeting and go back to adoptions. Now, think about
that and it explains why he brought it up in the New York Times interview.

TRUMP: It was very interesting. We talked about adoption.


TRUMP: Russian adoption. I always found that interesting because you
know, he ended that years ago. And I actually talked about Russian
adoption with him, which is interesting because that was a part of the
conversation that Don had in that meeting.



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