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Mueller eyes Facebook in Russia probe. TRANSCRIPT: 2/12/2018. The Beat with Ari Melber

Guests: Nick Akerman, Nicholas Thompson, Eric Swalwell, Liz Plank, Richard Painter

Show: THE BEAT WITH ARI MELBER Date: February 12, 2018 Guest: Nick Akerman, Nicholas Thompson, Eric Swalwell, Liz Plank, Richard Painter

KATY TUR, NBC NEWS CORRESPONDENT: So the "MTP Daily" team will do it for him.

Congratulations, Chuck, on a very well deserved honor.

That`s all for tonight. Chuck, the man of the hour, will be back in the chair tomorrow with more "MTP daily.`

Meanwhile, "the Beat" with Ari Melber starts right now.

Ari, I did not look that adorable in my high school photo.

ARI MELBER, MSNBC HOST: I`m trying to think of something nice to say. I think that`s probably not true but as a journalist I suppose I wasn`t there.

TUR: It was awkward. I`ll post it online. It`s awkward.

MELBER: Well, then you have kept it awkward all these years.

Katy Tur, thank you very much.

We begin with developing news tonight on the story that the Trump administration appeared to tried to bury heading in to the weekend. You may have heard about it.

Why did the number three official at the justice department leave after just nine months on the job? Her name, Rachel Brand. She was next in line to oversee Robert Mueller. And she said Friday night that she got a Walmart job offer that was too good to pass up.

Tonight sources telling NBC that Russia was also a potential factor and that Rachel Brand was worried that quote "Rod Rosenstein`s job would be in danger." If Rosenstein left, Brand would take over that DOJ probe.

Now tonight, the DOJ is disputing this report. I want to be clear about that. We have more on that. That is just the Russia part, though.

Sources also tell NBC Brand leaving in part because of other issues. Sources saying Brand left because her work as a leader and prosecutor was undercut by the Trump administration`s chronic vacancies. Now that`s a point that the Trump justice department and the Trump administration cannot dispute tonight because take a look, over a year into this administration, 30 percent of the divisions that Brand oversaw had no permanent leader.

This has also dogged the Trump state department as well. We reported on that and "the Washington Post" dogged in and found no nominees for 230 executive branch positions that require Senate confirmation. Donald Trump`s pitch has apparently gone from the best people to no people.

(BEGIN VIDEO CLIP)

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: We are going to deliver. We are going to get the best people in the world.

We don`t want people that are b-level, c-level, d-level. We have to get our absolute best.

(END VIDEO CLIP)

MELBER: The best. Well, Brand is the latest in a series, of course, of top justice department and FBI officials who have left, been ousted or reassigned. Now we have heard many comparisons these days between Donald Trump`s approach to the DOJ and Richard Nixon`s Saturday night massacre where he fired the Watergate prosecutor, the attorney general and his deputy all in one night.

The reason that Nixon`s massacre backfired was because it was so brazen. Everyone knew he was directly trying to fire the prosecutor investigating him. What we are seeing now with this Friday night news dump that we are keeping in the headlines because it`s important is the hints of a different approach from Donald Trump.

He is not explicitly ordering anyone right now to fire Mueller. That`s been reported before when there was a resignation threat. And he appears to be finding his way to technically legal ways to grind down pressure and reshape federal law enforcement. Some jobs left unfilled, some top officials publicly undercut, like Rod Rosenstein, and then some independent public servants driven out to the point that their replacements might not want those jobs.

So no matter what you think of Donald Trump or this approach, let`s be clear, when it comes to matters of his own self-interest, he can be a quick study. Through trial and error and some very clumsy moves like admitting that he did fire Comey over Russia, we now may be witnessing Donald Trump who has learned that blatantly removing Mueller would be as bad for him as the massacre was for Nixon. He may have learned that purges are best done slowly and that the path to corroding the DOJ may not be repeating Nixon`s massacre, but finding some effort towards the same objectives.

For more I want to turn to Katty kay, BBC World News America, John Harwood, CNBC`s editor-at-large and Richard Painter, who was an ethics lawyer for President George W. Bush.

Richard, I begin with that thesis for you that Donald Trump, although at one point "the Times" has reported that he did inquire about getting Mueller fired when his White House counsel said he would resign over it he backed off. How do you view the way that Donald Trump has sort of evolved and iterated an approach that still appears bent on grinding down federal law enforcement.

RICHARD PAINTER, FORMER WHITE HOUSE ETHIC LAWYER UNDER GEORGE W. BUSH: Well, there`s no predictability to Donald Trump. All this administration is about is Donald Trump and his family, his own ego. I would not want to work for him. And Rachel Brand is a very good lawyer. I knew her in the Bush administration. She has been at the United States chamber of commerce. She is an excellent lawyer. And she got an offer to be the top lawyer over at Walmart, I`m sure she grabbed that.

But I would take any job at Walmart, the jobs at the bottom of the pay scale over at Walmart rather than work for this administration in the justice department because she would have been put in a situation where Rod Rosenstein quit or was fired. She would be pressured to fire Robert Mueller or to somehow constrain the Russia investigation and that`s a very good way to end up in jail making license plates. As I say, I think any job at Walmart would be a heck of a lot better than that. So she got a good deal for herself and I would not be surprised to see some other people leave as well.

MELBER: Well, you put in evocatively.

John Harwood, speak to Richard`s points and what this means about who wants to end up holding these posts.

JOHN HARWOOD, EDITOR-AT-LARGE, CNBC NEWS: Well, look, President Trump has made it plain. He doesn`t care about public policy. He doesn`t care about government. And many of the people who work for him are actively hostile to the agencies that they oversee. So Rachel Brand, as Richard said, had a nice offer from Walmart. But it is not normal for someone to leave government service, a high-ranking job in the justice department that quickly.

Who can blame Rachel Brand? She is getting some criticism from people who want to confront Donald Trump for bailing out rather than face the potential angst of a Rosenstein being removed, her being in charge and then her facing the wrath of Donald Trump. But if she was prepared to stand up to the President in an attempt to stop the Mueller investigation, it wouldn`t matter anyway because she`d be fired and someone else would replace her.

So I`m not sure that you can blame Rachel Brand for wanting to get out of a situation that by all indications could get fairly ugly before too long.

MELBER: Katty.

KATTY KAY, BBC WORLD NEWS AMERICA: Well, this is a lawyer who have served in three different administrations. She was a clerk for justice Kennedy before that. She is clearly at the top of her field. It`s hard to imagine that during the course of her many years in public service she hasn`t been offered other lucrative positions in the private sector.

So she didn`t -- if she has been, and I don`t know her employment history, but I do know that lawyers in her position are desirable in the private sector. If she has been, she hasn`t taken one so far.

So this is a departure. We are hearing from her friends in reports that she was feeling overwhelmed at the justice department and put upon at the justice department.

You seem to be suggesting, Ari, that this is part of Steve Bannon`s deconstruction of the administrative state. And that it is the deliberate policy by the Trump administration. There are people in the state department certainly over the course of the last year who have suggested that that is the case, that there`s a deliberate policy of not pushing diplomacy by not having these positions filled. It`s possible, I guess, that that is also going on if it`s a deliberate pattern in the justice department.

Whether it`s deliberate or not, I don`t know. Certainly the case that there aren`t positions filled where there need to be positions filled makes other people in those departments feel that they have an awful lot of pressure. And when you add in the Russia investigation, no wonder she is under a huge amount of pressure.

MELBER: Well yes. And you raised it, Katty. I mean, I guess what I`m seeing is on the one hand there`s a larger -- there`s an overlap. There`s a larger tendency to leave things unfilled because they don`t care about it, don`t think about it, or aren`t good at it. I mean, never underestimate incompetence as an explanation for some of the factors.

Then specifically at DOJ, there`s an obsession because it relates back to Donald Trump and this potential criminal probe. I mean we just don`t hear him openly musing about the number three or four officials at the agriculture department. I mean, this seat -- you know, and Jeff Sessions` recusal, while dramatic and journalists cover it because this is a huge story, is not something that is on par with, you know, military policy or the Pentagon or, you know, what`s going to happen in Syria. I mean, there`s other important things Donald Trump could be fixated on.

Let`s go Katty and then John.

HARWOOD: OK.

KAY: Yes, I guess that were possible. I mean, I guess if you were going to extend that as a theory say, well, then, you know, is Bob Mueller also under resourced. We haven`t heard that he is under resourced in terms of his probe. We do know that some Republicans in the Senate and the House have put some pressure on trying to shut those investigations down.

I`m not sure that`s a deliberate policy. You know people at state are saying it. I haven`t heard people at Rachel Brand before say it`s a deliberate policy at DOJ. I just wouldn`t be able to answer that.

HARWOOD: Ari, I was just going to say the additional factor in all of this is the difficulty that the Trump administration is having in attracting people that want to work for them. Ordinarily working for a President in the White House or in a prominent cabinet agency is a career capstone for a lot of people. But this administration is doing poorly, it`s a mess, it`s in chaos. Look at the White House, look at the controversy over the last few days with John Kelly, Don McGahn and all this back and forth and shifting stories about Rob Porter and those allegations. Who wants to sign up for that? It may not enhance your reputation at all and may do the opposite.

MELBER: Richard, final thought?

PAINTER: Well, I think this administration is in complete chaos. And Donald Trump has always been about chaos. He will throw false allegations out there. For example, about President Obama`s birth certificate, locking Hillary up, it goes on and on. And there is no grounding in fact with respect to anything he has to say. And this so-called deconstruction theory that they are pursuing, you know, that`s something that was associated with the crazies on the left, deconstruction, wanting to tear everything apart.

But these people from the right wing want to go into the government and deconstruct, tear apart our agencies, our state department, our department of justice. And of course somebody like Rachel Brand who has a great resume and could go just about anywhere, she is not going to have anything to do with this. I`m surprised that she took the job to begin with. But it`s certainly high time for her to high tail out of there.

MELBER: And I think that`s the larger question. Some of this may be by accident, and yet I think what emerges from the story from our reporting and from what each of you have said, is that if people aren`t going to come in and fill these jobs, if the more honest, career, independent, nonpartisan folks are on their way out, the overall bent is more politicized DOJ and more Trump cronies potentially there. And that of in itself to be fair and clear isn`t necessarily automatically illegal and yet it`s a huge problem particularly as the final call in all of this will go back to people like Rod Rosenstein. Will he release the Mueller report? What are the big decisions at the end of this road?

Katty Kay and John Harwood, thank you. Richard, stick around. I want to get more from you in a moment.

Coming up, the White House blaming the FBI for the security clearance fiascos. We have a fact check from a former FBI agent.

And new reporting coming in on how Bob Mueller is tapping Facebook and Mark Zuckerberg for key questions.

Later, we re going to look at what Trump`s past reveals about his new concerns about due process.

Also, the Obamas, look at those beautiful photos. We will explain the portraits coming in.

I`m Ari Melber. You are watching "the Beat" on MSNBC.

(COMMERCIAL BREAK)

MELBER: The White House controversy over two staffers accused of domestic violence has grown to engulf more people and led to reports John Kelly was pushing staff to allegedly lie is putting heat on the wider Trump approach to securing government information. This is of course a bigger problem than any single staffer.

The Porter story putting a spotlight on how many other Trump aides handle sensitive material without full security clearances. It is up for 40 staffer, including Jared Kushner, on so-called temporary clearances. Senate Democrats though now demanding an investigation. They say these security clearance failures haunt two people that are key in the Russia probe, Jared Kushner and former national security advisor Michael Flynn.

One takeaway here, this is bigger than Mr. Porter. This is an administration breaking federal protocols and potentially putting classified information at risk. On policy, a problem. On politics, think about it. This is pretty brazen considering the centerpiece of Donald Trump`s campaign.

(BEGIN VIDEO CLIP)

TRUMP: I don`t think it`s safe to have Hillary Clinton be briefed on national security because the word will get out.

One of the first things we must do is to enforce all classification rules.

(END VIDEO CLIP)

MELBER: All classification rules. Joining me is bobby Chacon, a retired FBI special agent and attorney and Alexi McCammond, deputy news editor for Axios who has been covering this story.

Bobby, sometimes the first question is straightforward. As then candidate Trump just said, are they enforcing all the rules?

BOBBY CHACON, RETIRED FBI SPECIAL AGENT: Clearly not. I mean, the FBI is enforcing all -- it`s doing everything it can to speed up these and expedite these clearances, but you know, speed up these and expedite these clearances. But you know, you only have the sf-86 to go on. That`s the form that Flynn got in trouble over. It is the form Rob Porter filled out. And then they go out and they do the background investigation.

They issue an interim clearance usually within five days to two weeks. But then the full adjudication of the clearance could take anywhere from six, eight months up to a year and a half, two years, depending on the person`s background and how much --.

MELBER: Not to make light of this, but you are making me feel like I`m at the DMV. You are talking so much paperwork. What about the big picture, though. You are talking about the paperwork that you voluntarily fill out and then they fact check it. But why are so many people, including the President`s son-in-law, working on temporary checks? What is the problem?

CHACON: Well, the problem is that the agents that are going through those background investigations are finding more leads to have to track down. They have to go to people. And when you talk to one person, that might in turn give you three more people that you have to talk just you have talked to from that one interview.

So the more that people have suspect in their backgrounds, the longer it`s going to take to settle it all out. So, you know, if a person is squeaky clean and doesn`t have that much to say, then it`s going to go quicker. If there`s more things to muddle through, it`s obviously going to take a much longer time.

MELBER: Alexi, this is problematic for the White House and really undercuts a lot of what -- again, it may be a long time ago, but what Donald Trump claimed he was going to restore when he got there.

ALEXI MCCAMMOND, DEPUTY NEWS EDITOR, AXIOS: Right, exactly. And we have seen this happen, as you mentioned, with Rob Porter and David Sorensen, the Trump administration speechwriter who they have had problems with their background checks that are in and out just coming to light. And the administration continues to operate allowing them to see this classified information that very few people have access to. But especially people with questionable background checks shouldn`t have access to them. And Trump is just allowing it to happen.

And we saw Sarah Sanders today from the podium put the onus on the FBI and say they need to be better at enforcing these rules and going through the checks properly. But at some point Trump or John Kelly needs to step in and do something about this.

MELBER: Yes. And Bobby, I mean, the paper flow is super important, you know. If you have been around a White House, no matter what party, no matter what era, the scheduler, the staff secretary who handles the paper, these are crucial posts because they are in the middle of everything.

Here is a congressman talking about how maybe if Mr. Porter had these problems, they should have found someone better for the job.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: There`s a burn bag under the desk because when you are done, you incinerate those materials. The idea that someone without a security experience was allowed to be there in the first place despite these allegation and was allowed to stay there with no plan for getting him clearance, is not the normal process.

(END VIDEO CLIP)

MELBER: On protocol and security, would it be better to wait an only staff these positions with people who are cleared for them? And if somebody has a hang-up that you say the FBI is investigating, let that play out?

CHACON: Well, sure, and this should happen even before the inauguration. This should happen in the transition. The top team, the team that`s going to be around the President, should be forwarded right away and the bureau should be able to start those investigations long before the President takes office so that those people, his inner circle, can be fully cleared.

You know, he is not - it is not that he is acting with an interim clearance. Everybody has an interim clearance. The problem is over at the FBI, I`m sure they look at each other and they go we are not going to issue this guy a clearance, adjudication. Who is going to call the White House and tell him that Jared Kushner is not going to get his final clearance? That`s probably a point of discussion over at FBI headquarters.

MELBER: Yes. And now, Alexi, the final point I want to raise comes from the White House and I hope you can hear it because it involves it all being your fault, you as a member of the media. Take a listen.

(BEGIN VIDEO CLIP)

SARAH HUCKABEE SANDERS, WHITE HOUSE PRESS SECRETARY: I mean, Frankly, if you guys have such concern with classified information, there`s plenty of it that`s leaked out of the Hill, that`s leaked out of other communities well beyond the White House walls. Look around this room. You guys are the ones that publish classified information and put national security at risk.

(END VIDEO CLIP)

MELBER: Look around, Alexi.

MCCAMMOND: I mean, obviously the main problem is that there are many people within the White House and the administration who are not happy with Trump. They are not loyal to him and his administration. And they Are leaking messages and documents and things to the media that is our responsibility to report on. So whether it is leaks or the way John Kelly handled Rob Porter, I mean, number of things, the White House de facto strategy is to blame everyone but themselves and that`s exactly what Sarah Sanders is doing today.

MELBER: Yes. It`s a lot of blame. And this information that does leak out and sometimes it can be against rules or even laws, but the person breaking those laws is typically the person with access to the classified information inside the government, not the Web site that posts it or the newspaper that prints it or tweets it or whatever the technology of the day may be. But I thought that was an interesting, you know, a bit of deflection there that was worth showing.

Bobby Chacon and Alexi McCammond, thank you both.

CHACON: Thank you, Ari.

MCCAMMOND: Thank you.

MELBER: Up ahead, whose Bob Mueller looking to now? It may be people running Facebook. New reporting on the kind of questions they are asking. Nick Ackerman is here.

And the Obamas back on the public stage. What they are saying about their very unusual Smithsonian portraits.

(COMMERCIAL BREAK)

MELBER: The other top story tonight. Does Mark Zuckerberg hold the keys to Bob Mueller`s next move? Investigators now probing how Russians use social media in their election meddling. They are not asking former Trump officials about running the campaign, they are taking big questions to Silicon Valley. Mueller team has grilled at least one Facebook employee about all of this. And now some employees started to talk or at least leak news tonight as anonymous Facebook staff paint a new portrait of turmoil inside a company that wanted to be above politics.

One has said Zuckerberg has begun to learn his platform could be used for ill, a shift who Zuckerberg initial denials when he downplayed fake news. Another former staffer leaking about an effort from inside the company to try to flip the post election dismissals by Zuckerberg.

Quote "what he said was incredibly damaging," an anonymous staffer said. Another Facebook staffer involved in the response basically says that they may have been late but then there was a moment where everyone said, oh, holy, this is like a national security situation.

Bob Mueller cares about this story because the Russians used Facebook, and he is probing before any Americans helped with that crime. A lot of Americans care about this story because Facebook has gone from a great success story, a company that could quote "save your life" as this magazine cover once proposed, to look at the same magazine today. Facebook under duress personified by Zuckerberg.

I`m joined now by the editor-in-chief of that magazine, Nicholas Thompson. He wrote that story I just quoted from along with Watergate prosecutor Nick Ackerman.

Two nicks. I start with this one. You are hearing a kind of a panic from inside a company that doesn`t usually see itself, I think it`s safe to say, as part of political problems in the U.S.

NICHOLAS THOMPSON, WIRED REPORTER: Yes, I think that`s absolutely the case. I think what happened at Facebook was they were a little bit stunned after the election. They did not expect Trump to win, they did not expect to be blamed for what happened. So that sort of stunning moment number one.

Stunning moment number two comes six months later in May or June of 2017 when they suddenly realized, wait, Russia was running a major propaganda operation on it and they just learned that from a little detail that leaks out about some government investigation that we don`t know about yet. So two moments of shock and we will see if there`s a third.

MELBER: Bob Mueller is known for being careful. He doesn`t leave a lot of fingerprint fingerprints.

THOMPSON: No, he does not.

MELBER: But you spoke to someone who saw something that made them wonder whether Bob Mueller was looking at it. Explain.

THOMPSON: And so I talked to one investigator -- so Facebook announces in July, August, they said, hey, we found these ads, we found this propaganda campaign. And then they kind of minimized the effect it had. And then a security researcher said, well, let me look into this. Let me see if I can find more about it. So he dug into the analytics platform called (INAUDIBLE). It is a guy named Jonathan Albright who has been an amazing resource during the last year and a half mapping what`s happened. He digs in. He finds that all the information about the Russian propaganda groups is kind of frozen in crowd tangle. He didn`t know why that is and we don`t know why that is but it`s possible that there some investigation that then led to Facebook freezing it.

MELBER: The Facebook`s internal records on these key questions, to put it colloquially as you said frozen, Nick Ackerman. What does that tell you? And why is Bob Mueller so interested in what`s going on digitally with Russia.

NICK ACKERMAN, FORMER ASSISTANT WATERGATE PROSECUTOR: First of all,, it tells me that there was a litigation hold that these documents were put in place because they were subpoenaed by the special counsel`s office.

Secondly, based on what we know, certain Russians were clearly guilty of wire fraud, a federal felony. They set up fake accounts under fake names using fake information that was clearly a fraud on Facebook. The only question that Mueller has to decide is whether or not the Trump campaign was part of that scheme to defraud.

So what he has to do is look at all of that data, which he has subpoenaed from Facebook which shows the exact names and places and precincts where all of this fake news was sent to try and suppress the Hillary Clinton vote, and compare that to the lists of people and places that the Trump campaign is using.

MELBER: But here`s the hard part for investigators, Nick. If Facebook and their own engineers were late to understand some of this, how do these folks in Washington - in this Washington Mueller office warrant take experts, how did they get ahead of it?

AKERMAN: Well, they get ahead of it because they know after the fact. I mean, that`s why it was a scheme to defraud. Facebook was hoodwinked into this. They opened these accounts when they shouldn`t have opened these accounts.

MELBER: So after the fact, though, there is that record for them to find.

AKERMAN: Right.

MELBER: The last thing I have to turn you to is you report on Facebook basically getting rattled by a coordinated effort from Republicans in Congress and conservative influential media figures alleging that they were biased, and then how did Facebook respond to that?

NICHOLAS THOMPSON, REPORTER, WIRED MAGAZINE: Well, this is very interesting. So there`s a story that runs in Name, and it says that Facebook is biased against Republicans. This is in May of `16. Facebook thinks the allegation is false, but the allegation still travels and everybody reports and everybody talks about it. So if Facebook says, we can`t have this. We can`t Republicans mad at us both because they want to appeal to the whole country and because Republicans control most of the government, including the parts that would regulate Facebook. So they invite a whole bunch of Republicans to Menlo Park to break bread and then most importantly, according to a dozen of people we talked to, after that they become very cautious about doing anything that could be seen as making people think they`re biased against Republicans again. And that, according again to these dozen people, is one of the reasons why they didn`t pay attention as much as they should to the fake news and may not have noticed what Russia was doing.

MELBER: So Republicans working the ref worked?

THOMPSON: Republicans working the ref, the media working the ref, whoever was working the ref, the ref got worked.

MELBER: And the ref, in this case, is a very influential platform. Nicholas Thompson with your reporting, Nicholas Akerman, with your analysis, thank you, both. Now we turn to Congressman Eric Swalwell, a Democrat from California and a Member of that influential House Intelligence Committee. Thanks for joining me.

REP. ERIC SWALWELL (D-CA), HOUSE INTELLIGENCE COMMITTEE: Thanks, Ari, for having me back.

MELBER: Much to discuss, but starting on that point, reported in this article, Senator John Thune d0es have oversight and FTC and all that does regulate these companies. Some have been calling for more regulation. Do you have any view of the account there from that reporter and then this article that this effort basically provided a kind of pressure on Facebook where they were more worried about Republican or conservative agenda items than alleged bias?

SWALWELL: Well, I think Facebook and Google and Twitter should all be worried that their platforms could be weaponized. And I think we should take the politics out of this. Now, Ari, what we know about the interference campaign is at its core it was a series of data crimes commissioned by the Russians. Now, on our side, we know that Candidate Trump invited the Russians to do the hacking. His team took as many meetings as possible. They showed a willingness and eagerness to receive the proceeds of the hacking and we still have to find out just what that working relationship amounted to. But I do think if we go into the next election and these social media platforms don`t understand that they could be weaponized but also that they now have a duty to report to the FBI, then I`m afraid that 2018 could be much messier than 2016.

MELBER: Well, and part of what the article reports is that there was almost a concern about not wanting to change too much of what people were seeing then because like a referee that had been criticized for their calls, they had this thing that they were worried about basically the allegations that they were conservatively biased. I mean, do you buy that theory or do you see that as kind of a smaller thing?

SWALWELL: No, I don`t buy that. I do think that this was more about just a naivete that all of us had. I think as lawmakers, even in the Obama administration, as voters, I don`t think anyone appreciated how aggressive the Russians would be. And we`re also looking in our investigation at the government response. And I`ll say to you, Ari, I think one of the lessons learned is that we should have been straighter with the American people as soon as this interference campaign happened. But because Candidate Trump had put it out there that the election was going to be rigged, that got in the head of Obama administration officials and they felt like if they said the Russians were interfering, that that would prove Donald Trump`s theory right. And so there`s a lot to be learned here.

MELBER: Right, well, you raise that example with criticism of your own party to some extent and that goes to whether working the ref also was effective, which I think is sort of a theme. While I have you, are we done talking about memos or where do we come down on all of that given the Friday night decision by the Trump administration not to release your party`s side of this on the committee?

SWALWELL: Our side is working with the FBI to make any appropriate redactions. We want to see an end to the attack on process, Ari. We haven`t had a witness before our committee for over a month now. And so every second we spend rebutting Republican memos is a second we`re not understanding what we need to do to put reforms in place to protect the ballot box at the next election.

MELBER: Congressman Eric Swalwell, thank you for making time.

SWALWELL: Yes, my pleasure.

MELBER: Still to come, Donald Trump has said a lot of things about due process that may be haunting him right now after the firing of that top White House staffer accused of domestic violence. We have a spotlight and a fact check on times when Donald Trump has not waited to assign guilt and that special report back in 90 seconds.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

SARAH HUCKABEE SANDERS, PRESS SECRETARY, WHITE HOUSE: The President supports victims of domestic violence and believes everyone should be treated fairly and with due process. He`s talking about mere allegations shouldn`t be the determining factor for any individual, that there should be a due process.

(END VIDEO CLIP)

MELBER: Due process. This is the latest term getting a kind of Trump treatment. As White House aides accused of domestic violence, the President lamenting that a "mere allegations enough to ruin lives. Is there no such thing as any longer as due process," he asks. There is such a thing. It`s a right every citizen has under the Fifth Amendment to the Constitution. The government can`t jail you or even take your property without a judicial due process. President Trump is invoking this selectively, though, citing it more either for his side or explicitly for men accused of abuse and violence than citing it in any other cases.

(BEGIN VIDEO CLIP)

TRUMP: It`s my opinion that to a large extent Mike Tyson was railroaded in this case.

UNIDENTIFIED MALE: Roger Ailes.

TRUMP: They`re saying these horrible things about him. It`s very sad because he`s a very good person.

A new claim that I made inappropriate advances. These people are horrible people. They`re horrible, horrible liars.

Roy Moore denies it. He says it didn`t happen and you know, you have to listen to him also.

He says he`s innocent. And I think you have to remember that. He said very strongly yesterday that he`s innocent.

(END VIDEO CLIP)

MELBER: In fact, long before Donald Trump was in politics this was an issue. Take the famous case of the Central Park Five in 1989. He was calling publicly for a death penalty against five young black men. That was before they had stood trial, before any due process. Now, those young men did serve jail time but they were later exonerated by key DNA evidence. And even after that, Donald Trump continued to say they were guilty. One of the men speaking out.

(BEGIN VIDEO CLIP)

YUSEF SALAAM, DEFENDANT, CENTRAL PARK FIVE: Donald Trump two weeks in taking out the full-page ad, rushing to judgment, finding out 13 years later after he did all of that that we actually were not the real culprits. It`s really amazing that he would say these types of things.

(END VIDEO CLIP)

MELBER: These types of things. How`s that for due process? And yet we also have to step back here and face the facts and the law. It would be a mistake to let Donald Trump`s selective invocations of due process undercut the wider principle. Innocent people deserve due process. So do guilty people. That`s the whole point. These former White House staffers accused of grave and heinous crimes, they do deserve due process under the law. But the government, the Constitution affords that to all citizens to have a president who doesn`t represent that value, who now seems to pick from our bill of rights like so much opposition research for self-interest, that also is an affront to due process. I`m joined now by Liz Plank, a Senior Producer and Correspondent with Vox Media who`s covered these stories, as well as Maya Harris, a Political-Legal Contributor for MSNBC and a former Senior Policy Advisor to Hillary Clinton. Liz, I start with you having covered a lot of these stories and I wonder whether there is a type of problematic code language going on here because I`ve covered murder trials where we talk about due process. The gravity of the crime and allegation is not what determines it, even though sometimes people emotionally say, God, this sounds so terrible and the evidence is so clear and they want to throw the rules out. But as we just showed, this is a President who only seems to reach for due process in these certain cases.

LIZ PLANK, SENIOR PRODUCER AND CORRESPONDENT, VOX MEDIA: Absolutely. And they all have something in common. You know, the President doesn`t want due process for -- or he wants it for certain people, not all people. He wants it for white men who are accused of beating their wives in the White House but doesn`t necessarily want it for the Central Park Five or for people who are being thrown out of this country by ICE without a due process when you know they have a right to it. And to Hillary Clinton during his campaign saying that she should have been thrown in jail based on conspiracy theories. And so that, you know, cannot be ignored. He also in his first speech when he decided to campaign for president talked about sexual violence. He talked about Mexican rapists. So he will talk about sexual violence and will talk about violence against women when it`s done by black and brown people in order to further an agenda. And this is what he`s done time and time again and he wants to preserve a status quo where that is acceptable.

MELBER: Why do you think he has such a focus on what you call sexual violence?

PLANK: Donald Trump has a pathology that he`s very afraid of women. And Donald Trump is sort of -- he needs sexism like a plant needs water and he knows that we are in a time where women are very powerful. And so if you`re afraid of women and you`re living through a time where women have a lot of power and they`re toppling very powerful men, you`re going to react by being even more afraid and again, preserving the status quo.

MELBER: Maya?

MAYA HARRIS, MSNBC POLITICAL AND LEGAL CONTRIBUTOR: Well, you know, I think a few things. First of all, Donald Trump only cares about due process and believes in due process when it comes to him and his cronies, not so much for Democrats, not so much for black people. I mean when you take the Central Park Five case, it was not only that he had no problem with a rush to judgment, and these were children, mind you, but even after they were exonerated with DNA evidence and a confession from a serial rapist, he still chose to believe that they were guilty. But when it comes to him and to allegations against him and when it comes to his crowd, it`s always the same pattern. It`s deny the allegations, degrade the women, you know, they`re all liars and of course, he says he`s innocent, and to dig in, to fight back and to refuse to resign, to refuse to step down, to refuse to give even an inch. And what is I think really troubling is in all of these cases, what Donald Trump, you know, wants to do is to reduce everything to a he said/she said, to dismiss things as mere allegations, even in the face of corroborating evidence. When you take the Rob Porter situation, for example, and his wives, there was a police report, there was a temporary restraining order. They reported, both of his wives reported to the FBI. And when you do that, you`re doing it under you know, the threat of -- under the penalty of a felony if you`re not telling the truth. And then, of course, there was the photographic evidence with the black eye, but it goes on and on. Corey Lewandowski, a photo of him you know, having grabbed Michelle Fields and he says, well, how do we know that those bruises weren`t there before? And then the Access Hollywood tape --

MELBER: Well, Corey -- I have to be clear and I understand a lot of what you just said and a lot of it makes a lot of sense. In the case of Mr. Porter, there`s this overwhelming evidence and the FBI is looking at it pursuant to his hands-on important materials in the White House, so that`s very real. In the Corey Lewandowski case, the due process did proceed in a Florida courtroom and a prosecutor did decide that was not enough to charge on so that does seem to be a different case legally.

HARRIS: But before the charges were dismissed, when he was presented with the situation, his immediate reaction was to doubt the woman, to doubt her situation, and to say, well, maybe she had the bruises before and it`s the same thing we saw with the Access Hollywood tape. When he, you know, when he`s caught on tape actually bragging about committing sexual assault and then fast forward to just last year, what did he say? Well, maybe it`s fake. Maybe that wasn`t me. And so I think there`s a fundamental problem that Donald Trump has in respecting women. And when you don`t respect women, it becomes easy to dismiss them, to denigrate them and to disbelieve them.

MELBER: Right, and you`re both making important points about zeroing in on where we are in each process and what the differential treatment may be with regard to people. And again, he is now the leader of the federal government. He has a constitutional limitations on how he approaches things that are distinct from a candidate or a private citizen, whether he realizes it all the time or not. I want you both to stay with me and I want to add and broaden the conversation. Richard Painter back with us, Lawyer and of course a former Ethics Official in the Bush White House. Richard, having heard from my two panelists here, I wonder if you have a concern, though, that in the long run, due process, which is something that lawyers and constitutionalists care a lot about, whether if it gets lumped in by Donald Trump in a selective way, does that risk undercutting the public understanding of what the term actually is supposed to means and why it`s part of our Constitution.

RICHARD PAINTER, FORMER ETHICS LAWYER, BUSH WHITE HOUSE: Well, yes. He`s just using it selectively and shooting his mouth off. He shouldn`t even be talking about these incidents. He shouldn`t be commenting on the guilt or innocence of Rob Porter. I mean the evidence was strong enough that he shouldn`t have been ever put in the White House. He wouldn`t have passed clearance in the Bush White House or the Obama White House. There`s absolutely no need to take sides and opine on whether the allegations are true or false. With those allegations, someone doesn`t go to the White House. President Trump very selectively starts talking about due process. There`s no legal proceeding involved in which he`s weighing in. I don`t understand why he`s saying that. He then also put out a tweet about our Senator Franken from Minnesota, attacking him, and that`s a situation where he selectively chose to side with the accusers. This is really just about politics for Donald Trump --

MELBER: Well, and that goes -- and that goes --

PAINTER: -- and I don`t think that he contributes.

MELBER: To the final thing I want to ask you, Liz, which is I think a relatively smaller point. We`ve covered I think some important ground, there`s also the employment process which is not as constitutional because you don`t have a right to a White House job. But what about just the basic hypocrisy of Donald Trump continuing to say that he wants to appear to publicly defend these people when they are being removed from his employment?

PLANK: Right, and the sheer hypocrisy of saying that there`s no path to recovery if you`re accused of crimes of violence against women and him being in the highest office in the land after being accused by 19 women.

MELBER: Liz Plank, Maya Harris and Richard Painter, thanks to each of you for going deeper on this. Up ahead, the Senate now begins a debate on yes, immigration. What does it mean for hundreds of thousands of people who have their status up in the air? And as I mentioned, the Obamas back in the spotlight. What the former President says he might change about that dramatic official portrait.

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MELBER: Minutes ago in the Senate, lawmakers agreeing to begin the much- discussed debate on immigration. This is, you will recall, a debate Senator McConnell promised Democrats in return for ending the shutdown, the issue the fate of 700,000 so-called DREAMers, people who ended up in the U.S. but were brought here as children. Whether Democrats will get the type of votes they wanted remains anyone`s guess. There are several plans in the mix, not an actual vote schedule on any of them. You may recall DNC Chair Tom Perez saying this on Friday on THE BEAT.

TOM PEREZ, CHAIRMAN, DEMOCRATIC NATIONAL COMMITTEE: I am confident that if we can get an up or down vote and when we get an up or down vote, I`m confident that that vote would pass. We`ve got to keep fighting as Democrats and the wheels of justice on this have spun way too slowly. They are -- it`s unconscionable that DREAMers are being used as pawns in a broader political game. That is what Donald Trump is doing.

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MELBER: Meanwhile, Washington Post reporting immigration officers are now increasing arrest of immigrants even with no criminal conviction, stories like this from around the country.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: ICE has deported Liliana Cruz Mendez to her native El Salvador. Mendez had been making regular check-ins with immigration but when she came in last month, ICE arrested her.

UNIDENTIFIED FEMALE: Joel has been deported to Guatemala. Joel Colindres is married to a U.S. citizen, has no criminal history and has been employed and paid taxes for the last 14 years.

UNIDENTIFIED MALE: A family torn apart after a man living here in Michigan for nearly 30 years is deport.

UNIDENTIFIED FEMALE: Jorge has no criminal record, not even a traffic ticket.

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MELBER: That is what part of this story looks like and we`ll be keeping our eye on that building about where it heads. Meantime, another update in the Russia investigation. You may know one of Bob Mueller`s most visible Congressional critics has been making the rounds. Several news outlets now profiling Congressman Matt Gaetz, noting he is "controversial, even notorious," and, "the ultimate Trump defender." Here on THE BEAT, we`ve had Gaetz on this show twice.

(BEGIN VIDEO CLIP)

MELBER: Who are the people --

REP. MATT GAETZ (R), FLORIDA: Hillary Clinton is the person.

MELBER: Who are the people that Mueller is currently investigating? So you think he is currently investigating Hillary Clinton?

GAETZ: His charge is to investigate Russia`s involvement in the 2016 election.

My specific concern about Rosenstein is he was not forthcoming with information before the judiciary committee that we`re absolutely sure that he has. Come one, Ari --

MELBER: Are you accusing him of perjury?

GAETZ: I`m accusing him of withholding evidence that should have been in the possession of the Judiciary Committee.

MELBER: And as always, I do appreciate you making the time to come on THE BEAT.

GAETZ: Always a pleasure.

(END VIDEO CLIP)

MELBER: That was then. But I have to tell you, in one of the new profiles, Congressman Gaetz said this to The Washington Examiner, a false claim, he says, "I lowered his mic during an interview." A representative at MSNBC responding to that claim noting the mic was never turned down during any of his appearances on THE BEAT and the Congressman is welcome back on the show anytime. Now that was to save and to correct the record. Today I also personally called Congressman Gaetz to reiterate our fair approach to interviews and to extend that invitation. And I want to tell you our viewers, he said he commits to coming back on THE BEAT in person and we look forward to it. Up next, the Obamas in the spotlight for a very interesting reason. We`ll show you. That`s up ahead.

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MELBER: And it`s that time in Washington. Official portraits for President Obama and the former First Lady Michelle Obama are tonight on display at Smithsonian`s National Portrait Gallery. The Obamas attended the official unveiling ceremony. The former First Lady focusing on the impact. She hopes the paintings will have on visitors.

(BEGIN VIDEO CLIP)

MICHELLE OBAMA, FORMER FIRST LADY: I`m also thinking about all of the young people, particularly girls and girls of color who in years ahead will come to this place, and they will look up and they will see an image of someone who looks like them hanging on the wall of this great American institution.

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MELBER: An important and serious point. The former President thanked the artists Kehinde Wiley and Amy Sherald and made a lighter point about some complaints.

(BEGIN VIDEO CLIP)

BARACK OBAMA, FORMER PRESIDENT OF THE UNITED STATES: I tried to negotiate less gray hair. And Kahinde`s artistic integrity would not allow him to do what I asked. I tried to negotiate smaller ears, struck out on that as well.

(END VIDEO CLIP)

MELBER: Can`t have everything. And when in doubt, go back to the ears. They are some neat and unusual portraits. That does it for THE BEAT. We`ll see you back here tomorrow night at 6:00 p.m. Eastern. "HARDBALL" with Chris Matthews is up next.

CHRIS MATTHEWS, MSNBC HOST: Who you going to call? Let`s play HARDBALL.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED. END