Constitutional crisis: Dems talk fines. TRANSCRIPT: 5/10/19, The Beat w/ Ari Melber.

Basil Smikle, Markos Moulitsas, Melissa Murray, John Flannery, Susie Essman

HALLIE JACKSON, MSNBC HOST:  Nine years young in our hearts.  Chuck will be

back next week with more MEET THE PRESS DAILY.  But “THE BEAT WITH ARI

MELBER” kicks off as we speak.  What a treat to see you in the flesh, my



ARI MELBER, MSNBC HOST:  Great to see you.  And we`re going to party like

it`s your birthday.


JACKSON:  As I know you always do.


MELBER:  Have a great weekend, Hallie.


JACKSON:  You too.


MELBER:  We have a big show tonight.  Rod Rosenstein`s last week on the

job.  Of course, he was there in a senior position at every big juncture of

the Russia report.  I have a very special report tonight and it may break

some news for you.


Later, Susie Essman from Curb Your Enthusiasm is here for a very special

Fallback Friday.  But we begin with breaking news.


A top Democrat today, the chair of the House Ways and Means Committee

dialing up the heat trying to get Donald Trump`s taxes, sending a subpoena,

this is new, to Treasury Secretary Steve Mnuchin and the IRS commissioner

for six years of Trump`s personal and business tax returns, demanding the

documents in the next week.


Mnuchin was spotted entering the West Wing earlier today.  We don`t know

exactly what they were discussing.  But he has missed multiple deadlines

from other Democrats.


You may remember, this is something that`s been pursued by multiple

committees.  And he said that the original request for these Trump tax

returns which are, of course, required under federal law in his view had no

“legislative purpose”.


Now, all of these caps a week that has been, of course, dominated by the

historic contempt vote for Donald Trump`s attorney general.  And I could

tell you tonight it is also now ending not only with this tax fight but

with other Democrats saying they`ll fight fire with fire, warning of a

separate contempt vote for the man who served as Donald Trump`s White House

counsel and as Bob Mueller`s star witness, we`re talking, of course, about

Don McGahn.





subpoenaed McGahn and we`re expecting him to show up on the 21st.  And if

he doesn`t, he will be subject to contempt.




MELBER:  The Democrats are pushing forward on what appears now to be a

multi-front strategy to both punish and try to deter Donald Trump`s threats

of defying all the subpoenas.  And you have now the prospect here on record

of potentially multiple contempt votes against this administration`s

alleged defiance.


Democrats warning they`re going to counter that defiance not only with jail

time but also now, get a load of this, with the prospect of major fines.





more practical to consider levying individual fines on the person, not on

the office until they comply.  The courts use that practice.  I think it`s

quite successful.  You could fine someone $25,000 a day until they comply

and that will probably get their attention.




SCHIFF:  We can do that.




MELBER:  Democrats are arguing that this tough but practical legal strategy

may provide something of a middle ground between doing nothing and

beginning impeachment proceedings now.  But I want to tell you, as we dig

into this, there are other progressives arguing that there isn`t much value

to “middle ground” when dealing with this president, Mr. Trump, and that

Congress makes a big bet if they let him get away with what many Democrats

agree, wherever they are on impeachment, what many Democrats agree on is

that they say there is this criminal evidence outlined in the Mueller



And leaving that unaddressed doesn`t leave things at neutral, it invites

further misconduct because you don`t have any deterrents against the

conduct that`s been exposed.  Now, if this sounds familiar, consider it`s

because it`s basically the central premise of deterrence theory.  It`s why,

someone you may remember, the hawkish Don Rumsfeld always repeated the

basic explanation, weakness is provocative.




DONALD RUMSFELD:  Today, it should be clear that not only is weakness

provocative but the perception of weakness on our part can be provocative

as well.




MELBER:  A perception of weakness.  And then almost as if on cue during

this debate that I`m narrating for you, you have Trump critics today

pointing to these absolutely stunning statements from not just a close aide

to the president or a political hack but from the person charged with the

criminal defense of this president, Rudy Giuliani, who openly admits now

that he will be heading to Ukraine and he wants to meddle in investigative

probes there for the explicit and stated purpose of helping Donald Trump`s



You know, the Democrats` oddest talking point this week may have been the

claim that the president is inviting impeachment, as if this uniquely

congressional measure to potentially hold him accountable is also up to

him, up to Donald Trump.  No matter what happens here – and as you know,

if you ever watch this show, we don`t predict what`s going to happen.


But constitutionally, it is Congress that will make this call if there is a

call to make.  And there are, as we`re seeing here, there are at least I

think some signs as this particularly dramatic week draws to a close that

there are Democrats inching now towards the deterrence position and that`s

with or without this Trump-Giuliani reindeer games.




SCHIFF:  Whether it would be successful or not, you have to consider any

remedy to fight that unlawful action.


REP. TED LIEU (D-CA), JUDICIARY COMMITTEE:  If the Trump administration is

going to completely deny every single congressional subpoena, then every

option has to be on the table.


(0:00:24) 10 We have been working methodically through a process to

investigate the facts.  It seems to me that it`s the administration who is

pushing us toward impeachment.




MELBER:  I`m joined now by the Markos Moulitsas, the founder of the

progressive website Daily Kos and a longtime political professional, NYU

Law professor Melissa Murray and Basil Smikle, the former executive

director of New York State Democratic Party.


I don`t want to put anyone in a box but you are on cable news and each of

you are in something of a box.  And so I set up our panel here tonight this

way because, Basil, I look at you as a very conventional Democrat, no –

we`ll stay in boxes, bring them back.  There we go.


Basil is a very conventional Democrat having run a party in a big state. 

And Markos is known for pushing the party.  And so I thought let`s – and

Melissa is, of course, a legal expert.


I thought let`s have the conversation, Basil, is it time for impeachment? 

And if not, what is the Democratic Party position explaining why not

coexisting with what I`m hearing from almost every Democrat we know in

Congress which is that there is overwhelming evidence of criminal conduct

in the Mueller report.



Well, I actually take Nancy Pelosi`s position which she made at the Cornell

Club earlier this week and I was there, that there is some sense that the

president is goading, and she used the word goading, that is taunting to

try to get Democrats to pull that impeachment trigger.


I do think there are some elites in our party and there are grassroots in

the party that actually also want that.  The question is where are most of

the American people in the middle there?  Are they really at a point where

they want impeachment?


And I think what the Democrats are doing right now is very smart.  Without

going that far, you get as much evidence as you can to make the case, to go

to the American people and persuade them that this is the right direction

to go in.


Even in New York State here, you have the state Senate creating legislation

to go and get Donald Trump`s state taxes.  So this is happening on multiple

fronts.  And I`m convinced that at some point in time – if there`s enough

evidence there, number one, and Nancy Pelosi says go out and start

persuading the American people, we`ll get to that point, but we`re not

there yet.


MELBER:  Markos?


MARKOS MOULITSAS, FOUNDER, DAILY KOS:  I know I`m supposed to have a box

here.  I kind of agree, though.  But I don`t see it as an either/or



I mean these are investigations, this is information that would thieve into

any impeachment proceeding moving forward.  So there`s no magical

impeachment power that suddenly makes these tax returns available to

Democrats.  They still have to go through this legal process because

Republicans are doing everything else possible to stymie and obstruct.


So you got to go through this stuff.  And we`re going to find information

and I got to say, ultimately, my goal isn`t impeachment that will then die

in the Senate because there`s not going to be a conviction in a Republican

Senate.  I want to see that whole Trump clan in prison.


So to me, any information that leads to that, in the end, is a good thing. 

So I`m saying like bombs away, like a subpoena, contempt, all of that.


MELBER:  And Markos, when you look at some of the groups, and you`ve done a

lot of work with the grassroots, justice Democrats and other groups, they

are saying it`s time to impeach.  What do you think is the key for

Democrats to navigate this?


MOULITSAS:  Well, part of the problem I think is the misunderstanding about

what impeachment is.  I think people think, you impeach, Trump is gone, not

realizing that impeachment is that first step towards a Senate trial.  And

we do not have the votes in the Senate for any kind of impeachment. 

Republicans will protect Trump.


They`re bought and paid for by the Russians.  That is who they are.  So to

me, it`s about laying the ground, one, to expose Donald Trump`s crimes

heading into that next year`s election, showing base Democrats that we`re

fighting as a party that they work their butts off last year to elect a

House that is going to deliver for them.


And they can`t legislatively so let`s do so investigatively.  And

ultimately, it`s realizing that it`s a base election next year, motivating

our people to turn out because Trump`s people are going to vote no matter

what.  They`re already at a hundred percent.  Nothing Democrats can do will

make them even more motivated to turn out than they already are.


MELBER:  And Melissa, first of all, for viewers to know there were some

audio technical difficulties.  So I`m going to flag full disclosure, she

couldn`t hear everything but we got it fixed.  Just protecting you to say.


Second of all, what do you make of what does appear to be the escalation in

the legal strategy by the Democrats in Congress against the backdrop of

this discussion we`re having about using the impeachment power or not?


MELISSA MURRAY, LAW PROFESSOR, NYU:  Well, yes.  And this seems to be

trying to find a middle ground.  As Markos says, impeachment isn`t the end

result.  It`s a process and it`s an investigative process and one that

right now doesn`t seem that will end in the Democrats` favor because they

don`t have the votes in the Senate.


But again, if you can lay out the evidence, if you can show that there is a

history of noncompliance or outright defiance by the president, maybe that

raises issues for middle of the road Democrats and it certainly mollifies

the hardcore Democrats who have always seen impeachment on the outcome.


MELBER:  And what about what we`re calling the deterrence argument here?  I

mean the notion that after all this – I`ve spent time with the Mueller

report.  Part one is decent from a criminal legal perspective for the White

House.  It is.  People don`t like the conduct, that there`s a plain conduct

you don`t like.  But from a criminal legal perspective, I think it`s



Part two is highly incriminating.  But if you don`t do enough, then do you

risk allowing these things to go on?  I mean I want to play for your

analysis Chairman Nadler today talking about what Rudy Giuliani is doing,

which is I don`t think it`s a victory lap.  I think it`s quite incredible. 

Here is Chairman Nadler on seeking Ukraine`s help.




NADLER:  We`ve come to a very sorry state when it`s considered OK for an

American politician, never mind an attorney for the president, to go and

seek foreign intervention in American politics.




MURRAY:  So first, I want to push back that the first part of the Mueller

report wasn`t something that we should be worried about.  The Mueller

report in its first part found that there was systemic and broad

interference with the election by the Russians.  They could just find no

evidence of collusion with the Trump administration.


MELBER:  Right.  Let me be clear.  I appreciate your pushback.  I`m

referring to the notion of the president`s involvement in a conspiracy.


MURRAY:  Fair.  But –


MELBER:  The other parts obviously is why you`re dealing with this Russian

meddling that is an ongoing national security part.


MURRAY:  But they`re totally interrelated.  The reason why you have the

obstruction is because you don`t want the collusion.  It`s all kind of



I mean you can`t have the obstruction without the evidence of collusion to

keep it back.  So I mean these are intertwined.  And so I just want to just

pushback that there are some sort of exoneration if you will in the first

part of the Mueller report.


MELBER:  But there`s no chargeable election conspiracy.  And I just want to

be clear.  You pushed me again but this is what we do sometimes on the



You had a Democratic Party that spent a lot of time acting as if the

election conspiracy was either proven or coming and Bob Mueller didn`t find

it at a criminal level.


MURRAY:  Not at a criminal level but then there`s all of this evidence of

obstruction which he cannot charge the president with because he`s a

sitting president.  So now you have this lawless spectacle where the

president is actually above the law because there`s nothing that you can do

in a criminal context and the only avenue available is for Congress to go

forward with impeachment hearings and this is the big question here.


And I think you`re exactly right, this leaves open a lot of room for the

administration to just play chicken.  This is a game of brinksmanship

between the administration and with Congress.  And honestly, it`s shaping

up to be a first-rate constitutional crisis.


MELBER:  Markos, do you want to pushback on anything?


MOULITSAS:  Do I want to pushback?  No.  No.  I mean, to me – I mean the

idea that the administration is exonerated is absolutely absurd.  I mean we

know that you had Manafort sharing polling information with the Russians.


So there is a sense that the two entities were working together.  And now,

of course, there`s a criminal case to be made, that there`s standards of

evidence and beyond a reasonable doubt, all that stuff.


So that`s why Mueller didn`t seem to want to go there, but the fact is that

they were working together I think is pretty obvious.  And even if it

doesn`t reach that level of criminal conspiracy, the idea that Republicans

would be totally OK if Hillary Clinton was doing the same thing with the

Chinese or the Canadians or even the Russians is patently absurd.


So this notion that they`re like, oh, there`s nothing to see here when they

literally conspired with a foreign power and one that is hostile to United

States` interests in order to get Donald Trump elected and they`re totally

OK with it is absolutely patently absurd.


And so I`m less concerned about that standard than I am about just – with

the optics of it all and the narrative of it.  It is incredibly damning to



And the fact is Republicans don`t care, Democrats do.  None of it matters

because, in the end, we`re so partisanized as a country that next year the

candidate who wins is going to be the one who gets his or her base out more

than the other side.


SMIKLE:  If I may –


MELBER:  Almost out of time.  Briefly, Basil, please.


SMIKLE:  No.  Just to make a quick point about Democrats.  Listen, in

Article III of the Watergate impeachment hearings, one of the charges was

that the president didn`t respond to subpoenas.  That groundwork has sort

of already been laid.


And what I think Nancy Pelosi is right to do is temper expectations.  The

call for impeachment is not nearly as odious as the calls on the right for

lock her up.  And as long as we keep it to that point and lay out a very

good substantial case, that`s where we can start persuading the American

public that we`re ready to pull this trigger.


MELBER:  Very interesting to hear from each of you in your perspective. 

Markos, Melissa, and Basil thank you.




MELBER:  Coming up, we have a lot of stuff, including, as promised, my

special report on Rod Rosenstein.  He wrapped up his tenure in government

today.  He`s leaving behind quite a troubling record.  I`m going to get

into all of it.


And we spent days digging through the archives to find the tapes that some

of these politicians might not want you to see including some serious GOP

flip-flops about presidents obstructing justice.




SEN. MITCH MCCONNELL:  The president has engaged in a persistent pattern

and practice of obstruction of justice.


We don`t want a president lying in office.  We don`t want obstruction of





MELBER:  And tonight, comedian Susie Essman from Curb Your Enthusiasm joins

me for her BEAT debut along with our colleague Kate Snow for a very special

Fallback Friday.  That`s tonight.


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




MELBER:  Now, to our special report tonight.  An accounting of the most

influential deputy attorney general in recent history to be sure, if not of

all time, Rod Rosenstein.  And we couldn`t do this full report until this

week because this is Rosenstein`s last week on the job.


An earlier accounting could have easily been quite incomplete considering

that Rosenstein has zigged and zagged in his role overseeing what is

supposed to be a very special independent probe, Special Counsel Mueller`s

probe.  Because he ultimately helped Bill Barr land the plane, as they both

used that phrase.


And the two were all smiles at something I want to show you right now, this

cozy Washington event that just occurred this week that marked Rosenstein`s

last formal day at DOJ headquarters and because of Trump`s attacks on the

Mueller probe, tested virtually every major official law enforcement.


This gathering looks like a who-who – who`s who I should say of the

Russia`s investigation, from FBI Director Chris Wray who Trump tapped after

firing James Comey to Jeff Sessions, the A.G. whose campaign ties led DOJ`s

ethics office to recommend he recuse from the whole probe which put

Rosenstein in charge, to Bill Barr, a former attorney general who took the

job back after Trump ousted Sessions.


And Barr gave quite the tribute to Rosenstein, a very public indication

that no matter how Rosenstein began this process, he ended on team Trump. 

Keep in mind, this whole scene is unfolding against quite the backdrop, the

public facts that Barr misrepresented key parts of the Mueller report

before ever releasing, Congress moving forward on holding Barr in contempt.


While Congress hasn`t formalized its final reaction to Mueller`s report,

it`s still seeking testimony from, yes, some of the people in the room

you`re looking at including White House Counsel Don McGahn.  So with all of

that going on, those law enforcement leaders who you just saw, they didn`t

just joke around at this thing, which could be understandable at a send-off

or a retirement party.


Watch as they make the serious and unresolved matters of the Russia probe a

joke itself, Barr minimizing his own contempt vote as others treated this

whole probe as a punch line.




JEFF SESSIONS, FORMER ATTORNEY GENERAL:  When we came in, I had no doubt,

Richard, there would be a lot of controversies during my tenure.  But in

truth, I have to say our run exceeded my expectations.  Considerably.



debate raging for the last few months and I think we have to get it

resolved and decided tonight.  And that is which one of us is capable of

the most deadpan expression?




MELBER:  Ha ha ha ha.  But is that funny?  It is literally a reference to

Rosenstein`s now famous expression during Mr. Barr`s presser, which was

proven to be misleading at best.  That attention was not superficial.  It

was not about Rosenstein`s style or mood.


What you`re looking at on your screen was the very real question about

whether that person there, who once proclaimed the core import of an

independent probe, was really fine with what Barr was doing in front of the

country.  People searching his face for, are you OK with this?


Now, Rosenstein has had a long career at DOJ.  We should note.  He worked

in the department since 1990, a 12-year stint under two presidents as the

U.S. attorney.  And he has handled many important cases, ably according to

his colleagues.


But right now, he is best known for his most senior position, overseeing

this probe.  And it started remarkably.  Rod Rosenstein helped execute

Trump`s firing of FBI director Comey.  And then Rod Rosenstein ordered an

independent probe into that firing.


And until recently, Rosenstein`s defenders arguing, well, that sounds weird

but it was because Trump used Rosenstein.  He was a victim in the unusual



And now we have the Mueller report and that shows that defense doesn`t hold

water.  It shows that Rosenstein knowingly helped Trump pull off the

misleading firing, writing the memo that didn`t tell the whole truth about

it and that Rosenstein was on notice in advance.


We know that Rosenstein allowed himself to be manipulated by Trump because

the report proves Rosenstein knew from the start Trump wanted to fire Comey

because of Russia, as Ben Wittes explains in a new piece about the Mueller

evidence.  And it shows Trump asked him explicitly to include the Russia

stuff in his memo about Comey and Rosenstein pushed back.


And Trump said, “OK.  But I`d really appreciate it if you put it in the

letter anyway”, which means Rosenstein knew Comey would be terminated when

he wrote his letter.  He even told colleagues his own reasons to critique

James Comey were “not the president`s reasons”.


That was the reality behind the scenes as White House officials went out

publicly about this suddenly controversial firing, tried to pin it on

Rosenstein.  And they knew, some of them, that it was Trump who was asking

Rosenstein for the whole cover story.





of Rod Rosenstein, the deputy attorney general.  Rod Rosenstein was

confirmed just 14 days ago by a vote of 94-6 by our United States senators.



Rosenstein`s credentials.



everybody across the board has unequivocally said this guy is a man of

upstanding character and essentially the gold standard at the Department of





MELBER:  Gold standard.  Consider this because it`s weird how these things

happened.  All of that might have stopped right there, another White House

lie that they sort of get a weight of.  But Rosenstein was livid watching

those folks shred his credibility, blaming him for something that he knew

Trump requested.


Mueller report noting that Trump even pressed Rosenstein to then hold a

press conference to back up the clips you just saw, to back up the lie and

Rosenstein responded that was not a good idea because if the press asked

him, he would tell the truth that Comey`s firing was not his idea.


So Rosenstein was fine with Trump firing Comey because of the Russia

investigation.  He at least knew that was the plan from the start.  He went

along with it.


What he didn`t like – this is so important as everyone talks about his

tenure – he didn`t like getting blamed for it.  So it was just eight days

later, a little over a week, that Rosenstein appointed Mueller to try to

clean this all up.


And Mueller in the report shows how it happened, Jeff Sessions sitting with

Trump literally trying to interview for a new FBI director in that tense

time and Rosenstein calls.  So Sessions steps out of the oval to take this

call from his deputy, who is of course in charge of the Russia probe and

tells him about the special counsel appointment.


Now, as you know, you don`t just interrupt a meeting with the president

unless you have huge news.  Rosenstein called Sessions because he knew he

had to tell him immediately even if he was with the president and he knew

he was dropping a bomb.  And now we all know how the president reacted when

he got Rosenstein`s news delivered via Jeff Sessions.




UNIDENTIFIED MALE:  Oh my, God.  This is terrible.  This is the end of my

presidency, I`m fill in the blank.




MELBER:  His response was this is “the end of my presidency.  I`m F`d.”




STEPHEN COLBERT:  He said, “I`m [bleep].”  And what we obviously don`t

know, whether Trump will face any repercussions from this report.  I`d like

to just live for a little longer in the moment of him saying, “This is the

end of my presidency, I`m [bleep].”




MELBER:  That got everyone`s attention and it was in the report.  But what

was Trump so concerned about among other things?  You know we don`t show a

lot of Trump tweets on this show but he did explain his thinking

succinctly, any tweet, a month into the probe.


“I`m being investigated for firing the FBI director by the man who told me

to fire the FBI director.”  And he was onto something there because he was

being investigated over the Comey firing and while Rosenstein may not have

had the whole idea, he was in the on the initial cover story for it.


That strange dynamic would continue because, on the one hand, you have

Rosenstein doing what Trump asked.  And on the other, you have him

overseeing and initially saying he was going to protect the independence of

the probe Trump hated.





been making threats privately and publicly against me for quite some time

and I think they should understand by now the Department of Justice is not

going to be extorted.  Any kind of threats that anybody makes are not going

to affect the way we do our job.




MELBER:  Not going to affect the job.  But Comey in his own observation

about Rosenstein telling a friend, “Rod is a survivor so I have concerns.” 

In recent months, these concerns have shown exactly what Rosenstein is made



Because right in the middle of the probe with months before it was over,

credible reporting suggests from multiple sources that Rosenstein did

something that is not OK, telling Trump that he was on his team and

promising the subject of this open investigation, that he`d be treated

fairly in this private huddle and that he was making those promises while

fighting for his own job and then assuring Donald Trump, I`m the one, I can

land the plane.


When it was all over and Mueller found at least five instances of

“substantial evidence” that Donald Trump had the intent to commit crimes,

Rosenstein basically didn`t deal with it in any serious way and then went

along with Barr and his statement to the public saying there wasn`t

evidence to establish the president committed an obstruction of justice



Rosenstein then, of course, standing by Barr, not a punch line.  And watch

Mr. Barr further mischaracterize what Mueller found and then said it was

bizarre anyone would say Barr was misleading.  Rosenstein hands it in his

notice and then he went out of his way to praise Trump, saying not only was

he grateful for the opportunity to serve but for the courtesy and humor

Trump displayed in their, yes, personal conversations.  And then saying –

and this is really more political than DOJ language, “America first”.


One of the strangest things about all that praise is another episode in

this Rosenstein tenure because he had the land the plane conversation with

Trump after the “New York Times” reported that Rosenstein was considering

wearing a wire to tap the president.


Now, some said it was maybe sarcastic.  There was that defense.  We weren`t

in the room.


Rosenstein did call the story inaccurate but didn`t really fully reject the

idea that he would discuss taping the president.  Rosenstein, who was a

prosecutor for decades, is at least on record as in basically thinking that

he needed to treat the president like a criminal suspect at that time.


So whatever you think of Trump, there`s something there that Rosenstein saw

that justified those tactics.  And yet Rosenstein was later so concerned

about Trump`s conduct that how do you go from that to telling Donald Trump

you`re going to land the plane?  Is that appropriate?


It`s, of course, human nature to care about how everything looks, and you

expect that from all sorts of people to want to protect their legacy in

real time.  But that`s not what she`d generally want from a prosecutor. 

And Rosenstein, he wanted to look tough in public.  He appointed the

Special Counsel when he was under fire.  Then he publicly said he wasn`t

going to be extorted.


But the problem as we take it all together tonight is that in private when

the stakes were the highest, it appears that he bowed under pressure.  And

the question becomes on Rosenstein`s last day here at the Justice

Department.  Does Rod Rosenstein even pass the publicly stated Rod

Rosenstein test.





should understand by now the Department of Justice is not going to be



UNIDENTIFIED FEMALE:  “I give the investigation credibility, Rosenstein

said.  I can land the plane.”


ROSENSTEIN:  Any kind of threats that anybody makes are not going to affect

the way we do our job.


UNIDENTIFIED FEMALE:  Rosenstein`s resignation letter today went out of its

way to compliment and thank President Trump for the President`s demeanor

and attitude and courtesy toward Rosenstein during their “personal




number of people including me and it was also the conclusion of the Deputy

Attorney General Rod Rosenstein.


ROSENSTEIN:  The key to living a life of integrity is to take ownership of

the consequential decisions.




MELBER:  Rod Rosenstein served for 29 years at DOJ and worked on many

important cases as mentioned.  But apply that standard there.  Did he own

his most consequential decisions at the time when he finally had managerial

authority?  No.  He buckled to Trump in the initial Comey firing.  He tried

to fix it with an appointment that while vital, increasingly looks more

like something he made partly out of personal calculus at the time.


If Mr. Rosen Stein has better explanations for any of this, he will have to

go beyond the limited interview he did with his own subordinate Bob Mueller

for the report.  He`ll have to address the public either before the

Congress which could happen or in some sort of public substantive

interview, because right now the answers don`t look very good.  We`ll be

back with a lot more on this in just 30 seconds.




MELBER:  Breaking news on the heart of the obstruction issues facing

President Trump.  The New York Times reporting within this hour here that

twice in the last month the White House formally asked White House Counsel

Don McGahn to declare that Trump never obstructed justice.  The former

counsel McGahn reportedly denying these newly discovered requests and that,

The Times reports, angered the president.


McGahn has been of course Mueller`s key witness.  His name appeared more

than any other individual in the lengthy redacted report.  I`m joined by

former Federal Prosecutor John Flannery.  What do you think of this story?



Every time we turn and they cut off one head, two heads replace it that has

to do with some form of obstruction or misconduct or outrageous

unconstitutional conduct.  McGahn belongs to the number of lawyers if we

look back to Watergate who are the truth tellers.  The ones who stand by

their integrity no matter what the pressure and tell us what happened even

despite partisan preferences perhaps to do otherwise.


So twice in the recent month, we have Trump going to him and saying, say I

didn`t obstruct, say I didn`t obstruct.  And the report says that twice he

declined to do so because it wasn`t true.  And then we have the other

lawyers.  We have Barr and we have Rosenstein and those people who I think

will be brought down ultimately.


And the saddest thing, of course, is that we have people on the Hill that

don`t think that we`re at a point where we should be investigating

impeachment.  It`s outrageous.


MELBER:  Reading from The Times article, John, it says they asked twice,

the White House in the past month for the key witness against President

Trump Don McGahn to say he never believed the President structured justice. 


I think what`s most important about that is that Mr. McGahn`s conduct in

defying the President`s orders to oust Mueller and calling his own personal

lawyer and planning to resign and packing his things, all things we know

from the Mueller report suggest that he did believe there was at least to

put it in a lawyerly way, there was at least liability, the possibility

that he was being asked to participate in a crime.  You don`t have to call

your lawyer every normal day at work at the federal government.



FLANNERY:  Right.  Well, I think it says something else that the story`s

been going.  He wants us to bring on impeachment.  This says exactly the

opposite.  He is very concerned to control the evidence, to control the

subpoenas, to control everything because he does not want impeachment. 

This is a man that gets swatted on the back with a Forbes thing for the

money he doesn`t have.


What do you think he feels about the presidency?  He is prepared to do

anything it takes including sending Rudy Guiliani offshore in an

unprecedented violation of our sanctity as a nation to have them interfere

in our election when at the base of this investigation has been that the

Russians interrupted our investigation.


MELBER:  And finally, John, what does it tell you about the strategy coming

out of the White House which does know how to communicate, they do have

messaging that they viewed the report as something not to be reckoned with

as evidence but something to be bowled over?


In other words, they got Barr and Rosenstein as I was just discussing

before you join me to do this.  And then McGahn would have for them been a

sort of a trifecta that Trump understands headlines and he figured even

debatable figures if you had enough of them saying basically no

obstruction, they wouldn`t care, the public might not care as much that the

report has at least five incidents of obstruction.


FLANNERY:  What it tells us is that they believe that this proves his

guilt.  It also tells us that he believes he`s guilty because what we call

consciousness of guilt is when you`re doing something to contradict the

evidence that you did something wrong and he plainly has.


And he hears the people across the country saying those ten acts or others

that we all saw because he does it out in the open.  He does all of his

criminal obstruction out in the open.  You – a ten-year-old understands

what`s going on, and I say that without exaggeration.


MELBER:  Well, you said a lot of important points here.  I think the one

that was most piercing was the idea that it is precisely their concern

about what would happen if all these people spoke publicly talked –

testified that has them scrambling which is the opposite of the fake tough,

oh impeach me, I dare you P.R. message, not the first time the White House

would appear to have different messages some that are false.  John Flannery


FLANNERY:  Well, the beauty –


MELBER:  I got to fit in a break.


FLANNERY:  Yes sir.


MELBER:  For Curb, for Susie Essman.  Flannery, thank you as always, sir. 

Coming up, we have a breakdown of the sound Republicans may not want you to

see including Lindsey Graham on abusing power and impeachment, there are





SEN. LINDSEY GRAHAM (R-SC):  Let it be said that any president who cheats

our institutions shall be impeached.




MELBER:  And the only reason to ever leave Flannery, well, coming up

tonight from the HBO show Curb.




UNIDENTIFIED FEMALE:  The kid is home, hysterical, because her doll Judy

has been decapitated.




MELBER:  Susie Essman and NBC`s Kate Snow are here.  Stay with us.




MELBER:  Some Congressional Republicans have tried to downplay the

President`s alleged felonies and they may have a problem.  It`s called

video.  Senator Graham, for example, has been dismissive of the idea that

Mueller found evidence of obstruction by a president.  Here is how he felt

about a similar set of concepts being used against a president 20 years





GRAHAM:  He assaulted our legal system in every way.  Let it be said that

any president who cheats our institutions shall be impeached.  The day

Richard Nixon failed to answer that subpoena is the day that he was subject

to impeachment because he took the power from Congress.


You don`t even have to be convicted of a crime to lose your job in this

constitutional republic.  Impeachment is about cleansing the office.


He encouraged people to lie for him.  He lied.  I think he obstructed





MELBER:  Graham is not alone.  14 current Republican Senators are actually

on the record for at least the concept that yes, presidents can face

obstruction charges in office.  And in the 90s, you should see this

regardless of where this all goes.  This is the tale of the tape.




SEN. MITCH MCCONNELL (R-KY):  The president has engaged in a persistent

pattern and practice of obstruction of justice.  The allegations are grave.


SEN. ROB PORTMAN (R-OH):  I believe the long-term consequences to this

country of not acting on these serious charges before us far outweigh the

consequences of following what the Constitution provides for.


UNIDENTIFIED MALE:  Either we are a nation of laws or we are not.  And if

we are, then those laws have to apply equally to all people.


SEN. ROGER WICKER (R-MS):  The rule of law means that the commander-in-

chief of our armed forces could not be held to a lower standard than are

his subordinates.


UNIDENTIFIED MALE:  We don`t want a president lying in office, that we

don`t want obstruction of justice.


MCCONNELL:  The investigation is legitimate.


WICKER:  Felonious criminal conduct by the President of the United States

cannot be tolerated.


SEN. JOHN THUNE (R-SD):  He`s committed federal crimes and there must be a

reckoning or no American should ever again be prosecuted for those same



SEN. RICHARD BURR (R-NC):  If we knowingly allow president to break laws

while some Americans sit in jail for having violated the same statute, we

weaken the very rule of law protecting us.




MELBER:  Senator Burr there put it pretty well.  The point isn`t to pretend

that everything here and these examples are the same, but the point is on

the basic level of principles, the idea that presidents are not above the

law or that obstruction contrary to Mr. Barr`s recent claims is something

presidents can technically possibly do.


Well, that is actually clearly established as the view of so many of these

individuals.  And then you get to the historical question Senator Graham,

then-Representative Graham said history is the judge.




GRAHAM:  The question I have is what will people 25 years from now say

about impeachment trial?  Every senator voted and expressed themselves in

the way that will stand in history and they`ll have to be answerable for

their judgments as so will I.




MELBER:  Mr. Graham gets the last word on that.  Up next Curb`s Susie

Essman joins me and NBC`s Kate Snow for a special “FALLBACK” next.




MELBER:  It`s Friday on THE BEAT and you know what that means.  It`s time

to fall back.  I am joined now by actress and comedian Susie Essman.  You

know her for movies like Bolt which she voiced the character Mittens and

for her T.V. work including of course Susie Greene on HBO`s Curb Your

Enthusiasm where she does a lot of this.




SUSIE ESSMAN, COMEDIAN:  The kid is home hysterical because her doll Judy

has been decapitated.


Out!  Out!  Out!  Get the hell out of my house you ingrate.  You hurt Sammy

one more time, Larry.  Get the (BLEEP) out of my house.


You think we`re going to have a nice divorce if we ever get divorced?  No

(BLEEP) way.  I`m taking you for everything you have, mister.




MELBER:  And we`re also joined by my colleague NBC`s Kate Snow, Host of

“NBC NIGHTLY NEWS” on Sunday.  She`s also won several Emmy Awards and has

covered five presidential elections.


KATE SNOW, NBC NEWS HOST:  I`m really old.


MELBER:  Nice to have you both here.


ESSMAN:  Did you feel that when people give you credits, you`re just like,

wow, I`ve done so much, I`m ancient.


SNOW:  Yes.


MELBER:  Why do you yell so much?


ESSMAN:  Why do I yell?  Larry always provokes me.  I don`t just yell

willy-nilly, Ari.  I`m provoked, and then I have to – he`s usually – it`s

usually about my kid or something, you know.  It`s usually justified.


SNOW:  People think you yell in real life.  Like they walk up to you on the

street what – you did yell an f-bomb.


ESSMAN:  They do, when I`m mild-mannered.


MELBER:  Well, how much of that character – you say Larry upsets who

you`re speaking is your character.


ESSMAN:  Yes, I don`t mean Larry David the real person, the show person.


MELBER:  You have to go slow with me.


ESSMAN:  Larry – show Larry is always provoking Susie Greene.


MELBER:  And is Larry supposed to seem like he`s right or like he`s always



ESSMAN:  Well, Larry is usually right which is annoying.  He`s usually

right.  It`s true.


MELBER:  Have you noticed that it seems like – there`s a style part but

then the underlying point –


SNOW:  Right.  That`s the whole point of the show, right, is that it`s all

so –


ESSMAN:  Yes, his ethics are so –


SNOW:  – so relatable.


ESSMAN:  – so good.  You know, he has such good morality and ethics.


MELBER:  What do you think we can learn as a people from Larry David?


ESSMAN:  I think we could learn to say what everybody else is thinking but

afraid to say.  I think we all need to speak up.


MELBER:  Susie, who needs to fall back?


ESSMAN:  This whole beluga whale spy thing, you know, this whole Russia has

like it`s supposedly spying with a beluga whale, did you hear about this?


MELBER:  Yes, here we go.  This is real talk.


ESSMAN:  Yes.  Well, you know, I think –


SNOW:  Is it real?  I couldn`t tell.


ESSMAN:  We happen to know for a fact that the Russians like to align

themselves with blubbery people, blubbery creatures with huge flow holes. 

We know that for a fact.  It`s the redacted part of the Mueller report.






MELBER:  Good.  I mean, well done.


ESSMAN:  Yes, so enough with that.


MELBER:  What about you?


SNOW:  The Met Gala.  Did you see the – I mean, right?  Every year –


ESSMAN:  Which people are dressing silly.


SNOW:  Really silly this time is the theme was camp this year, like being -



ESSMAN:  Isn`t it always camp?


SNOW:  That`s Lady Gaga in one of –


ESSMAN:  She doesn`t need any attention.


SNOW:  She has like four different outfits.  I don`t – I don`t even know

who that – and then –


ESSMAN:  Who is that, Cinderella?


SNOW:  Well, it`s supposed to be – that`s Katy Perry.


MELBER:  But she`s dressed as the Ethan Allen homestead.


SNOW:  Exactly.  But there – it`s like rich people needing just so much



MELBER:  I think the Met can fall back.


ESSMAN:  You know what else bothered me this week that I don`t want to hear



MELBER:  Tell me.


ESSMAN:  I don`t want to hear about the coffee cup on Game of Thrones.


MELBER:  You`re done with that.


ESSMAN:  I`m done.  First of all, they drink coffee.  You know how many

long hours they work to shoot that show and what goes on in that show, they

need caffeine on that show.  So they drink coffee, what`s the big deal?


SNOW:  I don`t know.  I love the show.  I`m totally into it.  I`m on the

edge of my seat.  But the coffee cup, it did bug me.


MELBER:  Well, what did you think of the HBO response which we have.  They

said the latte that appeared in the episode “was a mistake, it was supposed

to be an herbal tea.”


ESSMAN:  I think they were – they were being funny or trying to be funny.


MELBER:  Are you saying that HBO is not always funny?


ESSMAN:  No, they`re always funny.  They`re my – they`re my – I love HBO.


MELBER:  I have a decent fallback.  Have you seen they`re putting Fanny

Packs on Crocs?  Two things that might not really be a good idea

separately, a worse idea together.  What do you put in there?


SNOW:  I don`t know what you put – lip gloss, I don`t know.


ESSMAN:  It doesn`t seem right to me.


MELBER:  An idea – I mean, if you`re in a concert and you want no pockets

and you`re in shorts and your I.D. is and in your Croc Fanny Pack.  But

again, even saying Croc Fanny Pack makes it a little uncomfortable.


SNOW:  Well, my 16-year-old said is this is all – first of all, you said

mom, you don`t understand.  Like you don`t understand.


ESSMAN:  How many times in a day does she say that?


SNOW:  All day long.  You don`t understand.  You`re too old.  You don`t

understand memes.  He`s like I won`t explain this to you but it`s a meme

thing.  And I said, well is it – is it a dead meme now?  And he`s like,

just stop.


MELBER:  Well, it`s like – Susie always says it`s like Will Smith said –




MELBER:  Parents just don`t understand.


ESSMAN:  But you know what, can I say something.  They think that we`re

just idiots, you know.  They just –


SNOW:  My son knows me as I`m an idiot.


MELBER:  I don`t.


ESSMAN:  They think we`re just – they think we`re idiots.  And I think –

I think they`re lame, and I blame it on their bike helmets.  They wear to

protect – I don`t have a bike helmet when I was a kid.  I would have been

left to Staten Island if I rode around in a bike helmet.


MELBER:  Are you saying that people who are children should fall back.


ESSMAN:  Absolutely.




ESSMAN:  Or they should get some respect.


MELBER:  Show some respect.




MELBER:  Put some respect on my name as it were.


ESSMAN:  Who said that, Ari?


MELBER:  Who said that?  Birdman.




SNOW:  The movie – the movie, right?


MELBER:  There was also a rapper named Birdman, a rapper.


SNOW:  Oh, sorry, sorry.


ESSMAN:  So you go rapper, I go Aretha.  So –


MELBER:  Well, and Birdman also famously said and this is fitting, are we

finished or are we done.


ESSMAN:  That`s so profound.


MELBER:  You know, I`m a fan of both of you.  Thanks.  Hey, thanks for

being here.


SNOW:  I`m going to kind of take this.


MELBER:  Susie Essman and Kate Snow – take five.




MELBER:  You know what we have on THE BEAT?  Musician, actor, and activist,

Common.  He came by and talked about his new memoir and the sense of duty

he feels about being open about his true reality with his fans.




COMMON, RAPPER:  I feel as an artist as somebody who is in a public eye, we

always show how great, you know, like we like – OK, you won Oscar, you

know, you got these Grammys, you do – but we also have – I feel like it`s

my duty to show my flaws too and show my fears.


MELBER:  And that you`re struggling with certain things even as you have

this other claim.


COMMON:  Exactly.




MELBER:  The entire interview is now up on as

well as YouTube and if you want to see more of what we discussed. 

I asked him about taking on Trump at the Oscars and why he said he knew it

would bother the president.  You can check out the whole interview if you

want online. 


But don`t go anywhere now.  “HARDBALL” with Chris Matthews is up next.







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