The Rachel Maddow Show, Transcript 12/2/2016

Chris Murphy, Laurence Tribe

Date: December 2, 2016
Guest: Chris Murphy, Laurence Tribe

CHRIS HAYES, “ALL IN” HOST: That is “ALL IN” for this evening.

THE RACHEL MADDOW SHOW, as promised, starts now.

Good evening, Rachel.

RACHEL MADDOW, MSNBC HOST: Good evening, Chris. It`s nice to be with on
with you last hour. Thanks for having me.

HAYES: It was awesome. I`m going to go watch.

MADDOW: Have a good weekend.

And thanks to you at home for staying with us the next hour.

OK. So, World War II ended in 1945. Five years later, the civil war ended
in China. And in that civil war, the communist side won. And it was a
terrible war and it was a messy ending. But in the end, what we ended up
with was China run ruthlessly by the communists under Chairman Mao.

And here at home for 30 years after that, we the United States, we refuse
to recognize that communist government as the government of China. For
decades, we had no diplomatic relations with China. We basically pretended
that the other side had won the war. The other side did still control an
island off of mainland China called Taiwan. We decided for our purposes in
the United States that that would be what we call China. We basically
pretended that the whole giant land mass of China over there, the big part
in the center, we basically decided for diplomatic purposes, the whole
major main part of China, we decided they basically had no government,
because we would not recognize the communist party as the government of

And in some ways, I`m over simplifying this, I know. But in some ways, I`m
not. I mean, we wouldn`t even for decades, we wouldn`t even recognize that
the capital of China was in Beijing. For 30 years after the communists won
that civil war and were running China, we said looking at that map, as far
as we were concerned, Beijing wasn`t the capital. As far as we were
concerned, that was China alone.

Officially for 30 years, we recognized Taiwan and its government as the
real China, the real Chinese government, the real Chinese capital. It`s
like the whole rest of the country, all of mainland China didn`t exist.

It was awkward. It was an awkward sort of mind game that we played around
those diplomatic decisions we made about China. And it was awkward, and it
went on for decades.

And then in 1972, something world-changing happened. Nixon went to China.
That has since become an over used metaphor about everything that you
almost think it didn`t really happen in real life. But it did really

President Nixon shocked the world and went over there for a talk with Mao,
at a time when we didn`t recognize the government of China. That was 1972.
It was an amazing thing, right? We`re in the middle of this ongoing
terrifying Cold War against a giant communist country, the Soviet Union,
and in the middle of that, the president of the United States decides to go
visit and start talking with the leader of the other gigantic communist
country in the world, who we had been studiously ignoring and refusing to
speak to for decades.

Nixon went to China, 1972. Even then, though, even after that, it took us
another seven years for our government to actually recognize the government
of China. We didn`t establish a formal diplomatic relationship with China
until 1979 under President Carter.

1979, we finally stopped insisting that the real government of China was in
Taiwan, we admitted publicly that we acknowledged that the capital of China
was actually a city called Beijing. We closed the embassy that we had set
up on Taiwan. We opened one up in Beijing instead. And that decision,
that shift in the 1970s, that is how and why we`re still talking to China
today, 44 years after Nixon broke down that wall and went over to China,
and talked to Mao.

We talked to China. Yes, we have our huge differences with China, right?
But we talked to China. This is our embassy in Beijing.

We acknowledge that the Chinese government is the Chinese government. We
don`t have the U.S. embassy to China in Taiwan any more. We have the
embassy in Beijing which is the capital of that country.

We have what`s called a One China Policy where we recognize there`s only
one Chinese government. We recognize the Chinese government as the
government of China. And it took us a long time for us to get there. It
sounds rational now, but it took us a long time, it took us decades to get
there. And that`s where we are.

And Donald Trump apparently took that silverware drawer out of the cabinet
and turned it upside down over his head and just started shaking the
silverware, see what happens. It took decades to develop the grounds on
which we talk to China. And Donald Trump tore it up today.

And the intense and important thing here, is that we don`t know if he did
it on purpose, or if he just bumbled into it. I mean, either way, I mean,
this conceivably is the way wars start, right? But – what he did tonight
is either a profoundly radical and consequential surprise action by the new
administration or it`s a huge screw up.

Which would be better? We don`t know which it is. I mean, here`s what we
know happened. Here`s the story, right? On the left, you see the
president of China, on the right, you see the president of Taiwan. Taiwan
sees itself as its own country. China says Taiwan is not its own country.
China says Taiwan is part of China.

We decided in the 1970s, Nixon going to China and all that, we decided to
recognize one China, just one Chinese government with its capital in
Beijing, that was a change for us. We changed course after decades through
great diplomatic pain and achievement, we made the decision to acknowledge
that the Chinese government is the one and only Chinese government. We do
not maintain separate diplomatic relations with Taiwan any more. Not since
the 1970s.

But today, Donald Trump called and spoke with the president of Taiwan, and
then released this statement, announcing the call as one of his calls with
world leaders today.

And if you don`t follow this stuff, a call to Taiwan, a call between the
president-elect of the United States and the president of Taiwan, it may
not seem like the biggest deal in the world. Hey, it`s just one phone
call, why is this a big deal?

But this really is something we don`t do as a country. This is something
we haven`t done on purpose, very carefully for decades. This is the first
time a president-elect of the United States has called the leader of Taiwan
as if they`re a separate country since the 1970s, since we stopped doing
that, deliberately and on purpose, and thereby established the modern basis
of our relationship with the most populous nation on earth. The world`s
only other rising superpower.

And maybe the president-elect doesn`t know that. Maybe the president-elect
doesn`t know that this phone call today – maybe he doesn`t – maybe he
doesn`t know about the Taiwan issue. Maybe he doesn`t know that by making
this phone call, by taking this phone call, he just basically hit pure ray
on decades of American foreign policy and diplomacy between us and the
other most powerful country on earth.

It really does seem possible that he just doesn`t flow. He just bumbled
into this. Why is everyone saying this is such a big deal? I took a phone

I mean, it is now a hallmark of this presidential transition, that the
president-elect is refusing to attend the daily intelligence briefings that
he`s being offered by the intelligence community. The president`s daily
brief is prepared every single day to the president of the United States,
that`s made available on the daily basis to Donald Trump. We know that
Donald Trump has been refusing those briefings.

We also know that although the State Department says it stands at the ready
to brief the president-elect or brief anyone on his team, before he has
conversations with other world leaders, which is the standard practice
before the U.S. government contacts other world leaders, we know that even
though the state department stands ready to do that, they say the
president-elect has refused those briefings too.

So, it`s – it does seem possible. I have to say, if seems even likely
that he has no idea what he just stumbled into. If he does, though have
the Internet machine on his tweeter, he might conceivably have checked the
State Department website before he made this consequential call. Even if
he didn`t want to talk to somebody from the State Department, he could have
Googled just what the state department says on its website under the
heading Taiwan.

It`s not complicated stuff, it`s really clear. This is what it says at the
State Department website. Quote, “The United States and Taiwan enjoy a
robust but unofficial relationship. In 1979, the U.S. switched diplomatic
recognition from Taipei in Taiwan to Beijing. And the United States
recognized the People`s Republic of China as the sole, legal – the sole –
the sole legal government of China, acknowledging the Chinese position that
there is but one China and Taiwan is part of China.”

Right. Even if you don`t care about the world at large, even if you only
care about Taiwan, because you might want to build a hotel there, even if
you are not interested in your intelligence briefings, even if you are not
interested in the State Department telling you who you`re talking to and
what`s important to them and what the red lines are that might really upset
them, before you start calling up other countries – you could just in a
cab, check the website at the State Department via your phone. You could
do that. That`s like what a fourth grader would do before meeting somebody
for – right?

I mean, but apparently that – what`s – it seems like happened tonight, is
that the president-elect didn`t do even that. And it may be that he
doesn`t realize what he has just destroyed, or it`s possible he does know
the consequences of what he just did. In which case, we just embarked on
one of the most radical and fundamental shifts in American foreign policy
in a generation, without anybody having any warning at all that it was


OPERATOR: And we`ll go first to Jennifer Jacobs at Bloomberg.

JENNIFER JACOBS/BLOOMBERG: Good morning, guys. Can you say if it`s true
that Trump will speak with the president of Taiwan today?

JASON MILLER, TRANSITION SPOKESMAN: I will have to get back to you on that
one, Jen. I don`t have that currently on the schedule. But let me go and
confirm that, I`ll get back to you.


MADDOW: As of this morning, his transition staff said, long pause, no,
nothing like that on the schedule. I haven`t heard anything about that.
Not that we know of.

That was his own transition staff. The White House says that they also
were not told about the call until it was done, and the State Department
also had no word that this was happening, but now it is done. And this
does reflect the biggest foreign policy change toward the most populous
nation on earth since the 1970s.

This conceivably throws a grenade into one of our most carefully built,
fragile, important policy relationships, the largest nation on earth.

So, now, tonight, do we hope that he meant to do this? And he`s just going
to be this radical with no warning, even while there`s another president
still in office? And he`s not supposed to be changing the foreign policy
of the United States yet? Do we hope that he meant it? Or do we hope that
he has no idea what just happened and this was an accident?

After the world started to proverbially blow up tonight in response to what
he did. The president-elect tweeted this late tonight. Quote, “The
president of Taiwan called me today to wish me congratulations on winning
the presidency. Thank you.” He put “called me” in all caps, as if the
fact that he received the call instead of originated the call makes any
difference whatsoever.

You`re the president-elect of the United States, you`re soon to be the
president of the United States. A lot of people will try to call you. It
doesn`t mean you have to be home.

Just before show time, we got another tweet from the president-elect.
Quote, “Interesting how the U.S. sells Taiwan billions of dollars of
military equipment, but I should not accept a congratulatory call.”

If by interesting you mean you`re interested in this as a topic, does that
mean you`re interested in learning more about this as a topic? Do you want
to know why it is that the United States can sell military equipment to
Taiwan, but there isn`t diplomatic contact between high level U.S.
officials and the government of Taiwan as if we recognize them
diplomatically which we no longer do. When you say it`s interesting, are
you interested in that? Are you just intrigued by that, but you`re not
curious as to why that is? Or are you actually interested?

Because if you`re interested, there are people who can help you understand

Tonight, we got reaction to today`s massive shift in American foreign
policy, planned or otherwise, from one of the rising stars of Democratic
foreign policy thinking, Connecticut Democratic Senator Chris Murphy. He
sits on the Foreign Relations Committee.

Here was his reaction tonight, quote, “Foreign policy consistency is a
means, not an end. It`s not sacred, thus, it is Trump`s right to shift
policy and alliances, and strategy. What has happened in the last 48
hours, though, is not a shift. These are major pivots in foreign policy,
without any plan. That`s how wars start.”

“And if they aren`t pivots, just radical temporary deviations, allies will
walk if they have no clue what we stand for. Just as bad.”

And finally, “It`s probably time we get a secretary of state nominee on
board. Preferably with experience. Like really, really soon,” end quote.

Joining us now is Senator Chris Murphy of Connecticut.

Senator Murphy, thank you very much for being here with us tonight. I
really appreciate you being here on short notice.


MADDOW: I – as you heard there, I feel like the question that we have to
sort of contend with right now is whether it`s better or worse if this was
an accident. If the president-elect is ignorant of the sensitivities here
and what this might mean for our relationship with the other most powerful
nation on earth, or whether this is just real off the hook radicalism, a
huge change in American foreign policy, that he means deliberately, and
he`s just doing it while President Obama is still in office without regard
for what that means.

Which do you think it is?

MURPHY: Well, I tend to think it`s the first, especially given the
context. This wasn`t just today`s phone call with the president of Taiwan.
It was also a breezy invitation to the president of the Philippines to come
visit the United States after a year in which he`s ordered or at least
condoned the extrajudicial killing of thousands of his civilians. It was a
call with the head of the Pakistani government in which he suggested that
the U.S. would be there to help Pakistan with all of its problems,
including maybe its major territorial dispute over Kashmir with India.

It sort of suggests there`s a pattern here of him saying things in these
diplomatic conversations that have real impact without having thought
through them. I guess to give him the most credit, there is something in
between a mistake and a very well thought out strategic change in American
policy towards Taiwan. He might just be trying to purposefully get a dig
at China, because of all the other things that we have on the table.

That`s no more palatable in that we do have much bigger fish to fry with
China, whether it`d be our economic issues, climate change or this messy
problem of a nuclear North Korea. The idea you would ding them on Taiwan,
making it less likely that you`ll get a settlement on these other issues,
would be a very strange way to approach your first conversations with this
first country.

So, there`s no good option here. I tend to think given the context of the
last few days, that this was probably just someone who didn`t know what he
was doing. And given that we`ve had sort of three mistakes in 48 hours, it
doesn`t suggest that this is going to get much better.

MADDOW: If it is the latter, taking that sort of most charitable view,
that he understands what a big provocation this is to China, he meant to do
it, it`s on purpose, he has some strategic goal in mind behind it – is it
appropriate to start down that path, to pick this fight with China, to mark
this change in our relationship with China, with Taiwan, while there is
another U.S. president who`s still in office who`s in charge of U.S.
foreign policy?

MURPHY: Well, of course not. He`s right to remind us that this is one of
the most complicated and diplomatic and military relationships we have,
right? It is strange that our presidents don`t talk, and we sell weapons
to them. And it is strange the relationship is built upon three
communiques and six principals, and U.S./Taiwan Relations Act.

But that`s the point. It`s one of the most complicated relationships we
have. And so, it takes a lot of thought if you are going to deviate from
the place we are today.

And if he is just trying to ding China, and ultimately, he`s going to
abandon the Taiwanese and do a deal with China on North Korea or some
economic issue, that`s just as problematic, it signals that he`s going to
play games with countries in order to get something from somebody else and
that`s how alliances and treaties break down.

So, there`s really no good way to read this tonight. And it suggests that
we`re in for a really, really bumpy road.

MADDOW: Senator, you mentioned at the top, this is one of three mistakes
or at least very reckless things that he`s done in international phone
calls over the last 48 hours, not just this – let`s say, maybe
unintentional provocation of China. But also inviting himself to Pakistan,
there`s a reason that President Obama has not gone to Pakistan since he`s
been president of the United States. Obviously, one of the most sensitive
countries on earth, nuclear armed, an incredibly intense relationship with
our other close ally, India, who`s also nuclear armed. A lot of tensions
around like the bin Laden raid and all of those things.

So, there`s the Pakistan issue. There`s also this invitation he`s extended
to the president of the Philippines, who as you said, is implicated in
thousands of killings since he`s been in office, who also, incidentally,
I`m sorry for the language here, called the president of the United States
very recently a son of a whore, and the president-elect has now invited him
to come to the White House.

Is that the sort of thing that on the Foreign Relations Committee, you
would expect to have input in if he tried to go through with visiting
Pakistan, with having the Philippine president come to the White House?

MURPHY: I mean, I think here in lies the problem. I mean, we still have
48 votes in the United States Senate as Democrats, and that does provide us
the ability to have a check on a lot of domestic policy. Some of the worst
things he`s proposed, like building a wall with Mexico, probably can`t come
true because we can stop it in the Senate.

The checks and balances don`t work as well when it comes to foreign policy,
right? He has the ability as a commander in chief to travel anywhere he
wants. He has certain abilities to enter into treaty negotiations, to
impose or lift sanctions unchecked by the United States Congress.

So, I think that`s why many of us worry, and I use some strong words today,
I said, this is how wars start. I admit it`s not likely that any of these
three mistakes that we`re talking about here today are going to immediately
lead to a war breaking out. But this foreign policy freestyling at the
rate that we`ve seen today, given the law of averages, will eventually lead
to something very terrible happening – which is why it might be about time
to get a secretary of state who knows what they`re talking about in place.

MADDOW: Senator Chris Murphy of the Senate Foreign Relations Committee, I
know we wrangled you on short notice tonight when this all started
happening, sir. Thanks for being here on a Friday night. I really
appreciate it.

MURPHY: All right. Thanks, Rachel.

MADDOW: All right. Lots to get to this busy night. I have to say, I am -
- I feel like I`ve sort of suspended all disbelief in terms of what`s
possible from the president-elect. But this thing with lobbing this bomb
at China, with apparently having no idea that it`s a bomb, I am
flabbergasted by this.

Break glass in case of emergency. Somebody, get me a glass.

We`ll be right back.


MADDOW: It was a busy Friday in the news. Even before the president-elect
picked up the phone and bumbled into the biggest fight we`ve had with China
in 40 years.

There was a lot going on in the news before that happened this evening.
And so, we do have a lot of show to get to tonight. It will include back
flips and cart wheels in Congress. I`m not kidding.

Stay with us.


MADDOW: Traditionally speaking, here`s what you have to do to get a good





UNIDENTIFIED MALE: Ms. Graham has drawn number six.



MADDOW: Thank you, back flip staffer.

The staffer for incoming Congresswoman Gwen Graham, acting as his boss`s
good luck charm, when she had to do the lottery drawing, that they use to
assign office space to new members of Congress. Turns out being able to do
a trick should probably go on your staffer resume.

I once met this cartwheeling staffer in Washington, D.C. She`s very nice.
She`s a combat veteran and she did that cartwheel as great luck for her
boss. Who also got a nice low number, after the cartwheel got a 10 out of
70 that year, that great office.

Every year, including this year, there are good luck talismans and back
flips and cartwheels and prayers, as incoming members of Congress try to
get good low numbers in the office space lottery.


UNIDENTIFIED MALE: Ms. Blunt Rochester prayed and she drew number four.


UNIDENTIFIED MALE: Mr. Correa drew number one.



MADDOW: Believe in prayer.

But this is how it goes every year. Future members of Congress strike a
little pose, they do a little dance or they say a prayer, they bless the
box, to try to steal some luck from other members of Congress, anything to
help their chances of getting a lower lottery number and thereby a better

You know, maybe all this stuff is silly, hugging the guy that got the good
number or good luck, right? You give him a rub on his head. Maybe this
stuff is silly. Maybe it doesn`t make any difference.

That`s apparently what Charlie Crist thought when he took his place this
week. He did no dance, no back flip, no prayer, no nothing, he was all

Let`s how it all work out for Charlie Crist.



Mr. Crist drew number 50.



MADDOW: Fifty out of 50. Dead last.

The poll camera caught somebody in the background that said, that`s
amazing, after he pulled his 50.

So let that be a lesson from all of us, from the new Congress this week,
which has completed their office lottery – if you do nothing, if you
retain your dignity above all else, you`ll still end up getting laughed at.
That`s the way the gods work.

It turned out, though, even though they did that lottery this week, it
turns they cannot assign all the office space in the U.S. capitol just yet.
There is a dude they have to wait for, for very good reason. That story is
coming up next. Stay with us.


MADDOW: This is the year when the United States of America started having
mass rallies for its leader after the election. We`ve never had that
before, not like this. But now, we know as of tonight that it`s not going
to be just the one mass rally that president-elect did in Ohio yesterday.
We learned today that they`re going to do another one next week Tuesday in
Fayetteville, North Carolina. And then they`re going to do another one
after that on Thursday next week in Des Moines, Iowa. And then presumably
there will be more after that as well.

Maybe they`ll keep doing mass rallies for the leader throughout his
presidency, who knows? He seems to like them. A lot. Like really a lot.
He really seems to like these.

But in addition to this novel mass rallies schedule that they have planned,
the vice president-elect is veering off the tour tomorrow on his own,
because he is going to Louisiana. In Louisiana, they haven`t had the
election yet, at least not all of the election.

A week from tomorrow, next Saturday, Louisiana`s going to go back to the
polls and that will decide whether there are 48 Democrats in the United
States Senate or 49.

And that`s potentially an important difference. I mean, this is how the
Senate looks right now, after picking up two seats in this election on
November 8th. Democrats now have 48 seats to the Republicans 51. That`s a
difference of three seats between them.

If the Republican wins in this Louisiana Senate race, that would increase
their majority from three to four. But if the Democrats win that Louisiana
Senate race a week from tomorrow, that would mean the Republicans only have
a two-vote margin on any one vote. If Democrats could pick off one
Republican senator, the Senate would be tied.

If the Democrats pick off two Republican senators, they`d get a majority of
the vote. So, it`s important. That clear dot, the one outstanding seat in
the Senate, that Louisiana Senate seat that is yet to be voted, yet to be
decided, that really could make an important difference.

And there really isn`t much in terms of polling for this Louisiana race.
That`s the Democratic candidate Foster Campbell on the left. That`s the
Republican candidate, John Kennedy, on the right.

In terms of the prospects for this race, Louisiana is a red state, but just
last year in Louisiana, they elected a Democrat to be their governor. And
that Democratic Governor John Bel Edwards is squarely in support of the
Democratic Senate candidate Foster Campbell.

And so, yes, Mike Pence is going to Louisiana tomorrow to campaign in that
race. He`s going to campaign for the Republican Senate candidate tomorrow,
tomorrow is the last day of early voting for this race. Republicans
sending in their big gun, right? Sending in the vice president elect to go
help the Republican candidate. They`re not taking this race for granted.
This is the last contested Senate seat in Washington, for crying out loud.
They`re sending Mike Pence down there.

Here`s my question. Where are the national Democrats on this? Mike Pence
is flying in on the Republican side. Who`s flying in to support the
Democratic candidate in this race?

President Obama, are you busy? Mrs. First lady? Anybody, you guys got

Nobody as far as we can tell. And check this out – at this point, the
Democratic Senate Campaign Committee, which is the Senate campaign arm of
the Democratic Party, they`re not even going so far as to push Foster
Campbell on their website.

Look at their website right now. Stay tuned to learn more about our
efforts to take back the Senate. No mention of the candidate they have
running for Senate next week, on what is admittedly an uphill race but is a
potentially winnable race.

Democrats, what`s going on here? Seriously, Mike Pence is busy right now.
Mike Pence is running the transition and he`s still the governor of
Indiana, and presumably, they`re going to have to send him to Beijing any
minute to stop the war with China, that Donald Trump accidently almost
started today when he inadvertently started his phone. Hi, Taiwan.

I mean, Mike Pence is busy, but still, he`s making time, because that
Senate seat is important. They`re sending Pence to Louisiana tomorrow to
fight for that Senate seat.

Why aren`t the Democrats fighting for it too? Seriously, one race left in
the whole country. What else are you working on? What`s going on here?


MADDOW: Right before George W. Bush was sworn into office in 2001, this
was the headline in the excellent satirical newspaper “The Onion”. “Bush:
our long national nightmare of peace and prosperity is finally over.”

“My fellow Americans,” Bush says, “at long last we`ve reached the end of
the dark period in American history that will come to be known as the
Clinton era, eight long years characterized by unprecedented economic
expansion, a sharp decrease in crime and sustained peace overseas. The
time has come do put all of that behind us.”

That was by – that was – I mean, the whole idea is so spooky. It`s
creepy, but this is my favorite part of this fake article they did in 2001.
They quoted a made-up Rahway, New Jersey, machinist named Bud Crandall
saying, quote, “After eight years of relatively sane fiscal policy under
the Democrats, we`ve reached a point where President Clinton now says the
national debt could be paid off as early as 2012. That`s not the kind of
world I want my children to grow up in.”

And “The Onion” ends up being weirdly prescient, again, right, because
George W. Bush really did start off with a booming economy, and what was on
track to be a budget surplus, and he really did set the whole thing on fire
by the time he was leaving office and Obama was coming into office, what
George W. Bush was handing the incoming president was an unemployment rate
of 6.8 percent and climbing like a rocket ship. The economy had started
the worst free fall since the Great Depression.

No one in modern times started off with things as economically bad as what
Obama was handed by George W. Bush.

But a bunch of presidents haven`t had it easy, when Reagan took office from
carter, unemployment was 7.5 percent and climbing. When Carter took office
from Ford, it was worse than that. It was 7.8 percent. A lot of
presidents have started off with the previous president basically leaving a
flaming bag of dog doo on the front step. Bye, you deal with it.

Not this one, though. This is what happened to unemployment over the eight
years of the Obama presidency. As of today, the unemployment rate in our
country is now at 4.6 percent, which is the lowest it has been since 2007.
Since the year before George W. Bush`s financial collapse. It`s 4.6
percent unemployment. That`s what Donald Trump is inheriting, thanks
Obama, right?

Trump is inheriting the lowest unemployment rate of any incoming president
in the last 40 years other than what George W. Bush inherited from Bill

In terms of economics, though, there is one factor in this soon-to-be Trump
presidency, that is absolutely unprecedented. That is 100 percent
different than any president that has ever come before him. And that story
along with Harvard professor Laurence Tribe is next.


MADDOW: It has become kind of a conundrum on this presidential transition,
that the president-elect hasn`t divested himself from any of his business
assets. And that means he will, he already is personally financially
benefiting from the public office to which he has just been elected. Even
just as president-elect.

We have reports of foreign countries suddenly disappearing what had been
longstanding roadblocks to his overseas hotel projects. Foreign diplomats
have already started booking their event the at his Washington hotel. And
they explained they`re doing that because he`s president-elect.

He has repeatedly had the top executives of his company sit in on his
meetings and his phone calls with foreign leaders and even his cabinet
appointments. I mean, that`s a problem, they`re going to be running his
business, they`re also in on all these decisions of government that could
benefit his business.

There`s apparently no plan for Donald Trump to dump even his stocks. That
would be the least he could do to avoid the appearance that he`s using the
presidency, using his control of the federal government to enrich himself.

Just take one example. Look at the stock of Goldman Sachs. Their stock
just hit an 8 year high. Goldman Sachs stock is going through the roof as
the president-elect meets with and hires more and more Goldman Sachs guys,
including the treasury secretary, the guy expected to be the treasury
secretary. His chief adviser and top strategist, he keeps bringing on more
and more and more people through Goldman Sachs. So, the Goldman Sachs
stock is through the roof.

Donald Trump owns millions of dollars in Goldman Sachs stock. Trump also
owns stock in the company building the Dakota Access Pipeline. Yesterday,
he announced that he supports completing that pipeline, despite the
protests from the Indian tribes that live in its path and their many, many

Trump`s transition team sent out a briefing note saying, despite media
reports about Trump`s investment in the pipeline company, his support for
it, support for the pipeline, quote, “has nothing to do with his personal
investments.” Trust us.

Trump team is acknowledging, yes, it kind of looks like the president has a
conflict of interest here, but their plan is to do nothing about it. Trust
us. That`s not why he`s making the decision. We`re definitely going ahead
with it, everybody says that`s because of the stock he holds, but we say
that doesn`t matter.

That`s apparently how they`re planning on dealing with these kinds of
conflicts. We`ve been asking lots, lots of very smart people over the last
couple days, actually a couple weeks, what the cure for this. What`s the
remedy for a president who doesn`t appear to have any intention of making
even the barest gesture toward trying to not appear corrupt? The check
that we`ve had on conflict of interest for somebody like the president of
the United States is basically the president does not want to appear to be
acting for his own material gain. If the president doesn`t care if you can
tell that he`s acting for his own material gain, what else can we do?

So far, nobody else has been able to tell us that there is a cure for this,
at least maybe not within government. But if the solution came from
outside the government?

There is a kind of blunt force legal tactic folks are discussing right now,
in which not the government, not Congress, but private companies, Trump`s
business competitors could bring legal action against him and/or his
company charging essentially that him being president and having that
benefit his companies, that makes it an unfair fight for them in business

I mean, say you`re a company bidding for some new hotel in some foreign
country. The company you`re betting against is run by the president of the
United States. Is that really a fair bidding process? Is that country
going to weigh those bids evenly and give you a fair shot?

Would you consider suing to get the president of the United States out of
that bidding process, so you can compete fairly as a business in the
marketplace? Could lawsuits like that force Donald Trump to divest him of
his business assets? Could lawsuits like that happen, what impact would
they have on this kind of a presidency?

Joining us now, I`m happy to say, is the one person I feel like I can
comfortably ask this question, knowing I`ll get an answer. Laurence Tribe,
legendary constitutional law scholar at Harvard. He`s argued dozens of
times before the Supreme Court.

Professor Tribe, it`s really great to have you with us. Thanks for being

LAURENCE TRIBE, HARVARD: It`s great to be here, Rachel.

MADDOW: Did I set that up right in terms of the hypothetical? A
competitor of the Trump organization wants to bid on some lease somewhere
or some opportunity somewhere. They say it`s not a fair fight. Do they
have a cause of action there?

TRIBE: I think they do, and in fact. This links perfectly with your
conversation with Senator Murphy at the beginning of the show about Taiwan.
Let`s say it`s in Taiwan, this infamous phone call between Trump and the
president of Taiwan.

It occurred actually in the wake of Trump explorations of building a bunch
of luxury hotels in Taiwan. He`s got projects there. That may not be
there. That may not be a coincidence. And there are other people bidding
on the same projects.

And under settled doctrine, when you are underbid you`ve got a cause of
action. For example, in 1990, a unanimous United States Supreme Court held
that a wholesaler could sue under the Commerce Clause against a state
agency that created unfair benefits for in-state competitors. And three
years later, an opinion by Justice Thomas, the court said that in the
affirmative action area, companies and individuals who think they`re being
unfairly treated because they don`t fit the minority that`s getting a
benefit can sue.

So, it`s a principle established in 1990, by a unanimous court led by
Justice Brennan, by a 7-2 court in 1993 by someone at the opposite end of
the ideological spectrum, Justice Thomas. So, it`s a pretty well-
established principle. You can sue.

MADDOW: Do you see this as – I mean, I know you think about these things
strategically as well as legally. Do you see this as the most direct legal
remedy for the kinds of conflicts of interests that we`ve identified, even
if you just described tonight, in terms of those hotels in Taipei, is this
the best way at it in terms of trying to remedy that conflict?

TRIBE: Well, I think impeachment is the most direct. But it in terms of
private remedies, this is about all there is. But we are a litigious
society and it would not be surprising to see lots of companies and
individuals deciding to go after the Trump enterprise, and it`s a family
enterprise. The only way to solve the problem for him would be to divest
the whole family of these holdings, not just to say, I won`t play a role in
managing it day to day, but basically, just as throughout history, people
have greased the palm of the king by giving benefits to the prince.

We have decided in our Constitution, Hamilton said that one of the big
dangers of a republic is that it gives too easy access to foreigners and
foreign governments for corruption and the solution to that was an absolute
prohibition unless Congress gives a green light, an absolute prohibition to
the president or even lower officers accepting benefits of any kind.
Presidents, they call them emoluments, payments of any kind, licenses,
anything that greases the palm from a foreign government or a foreign-
controlled corporation.

And we have a system in which private individuals and companies that are
hurt can take him to court. And a number of us have offered to defend them
pro bono if he retaliates as he is want to do against people who displease
him or sue. And, of course, we have the responsibility of Congress through
the impeachment clause, the politics at the moment –

MADDOW: Right.

TRIBE: – don`t look too beneficial for that.

MADDOW: Laurence Tribe, professor of constitutional law at Harvard, very
clearly stated and you`ve helped me understand something that I thought
woolly about for a long time now. Thank you for helping us, walk us
through it tonight. Thank you, sir.

TRIBE: Thanks, Rachel.

MADDOW: It`s fascinating. If there`s no political remedy here, which the
Trump folks say there isn`t, and as Professor Tribe was saying there about
Congress and impeachment, maybe there`s no remedy there either because of
the politics here and Republican control.

If the remedy for these conflicts of interest in this corruption issue is
private individuals and business competitors taking him to court – I mean,
the question may be just bravery, right?

We`ll be right back.


MADDOW: There had been a little burst of noise earlier this week that
Governor Sarah Palin of Alaska might be up for a cabinet position. Maybe
show`s the best person in the country to run the 300,000-person Department
of Veterans Affairs, maybe?

Maybe. But today, former Alaska governor slammed the Carrier Air
Conditioner Company that the president-elect tried to take a victory lap on
yesterday. She called it crony capitalism. Quote, “Republicans opposed
this, remember? Instead, we support competition on a level playing field,
remember? Because we know special interest crony capitalism is one big

It`s written in Palinese, but what I think that means is they`re not
picking me for a cabinet position.

Watch this space. Stay with us.


MADDOW: Thanks for being with us tonight. It has been a little bit of a
wild night in the news.

I reported earlier in the show that the president-elect still holds as
stock, still holds stock in Energy Transfer Partners, which is the company
building that very controversial pipeline in North Dakota that`s attracted
so much protest. I should tell you when the Trump transition announced
that Trump favors the completion of that pipeline, they also said he sold
off his Energy Transfer Partners stock. Maybe he has. I`ll tell you when
I see his tax returns.

Even if he has, though, Trump is also known to have held stocks in Phillips
66 and a number of other companies that hold a share of those pipeline,
right? So, there is still a conflict of interest between the president-
elect and that pipeline as long as he still holds his assets and doesn`t
divest himself of his business holdings and his stocks.

Coming up right now on “THE LAST WORD WITH LAWRENCE O`DONNELL”, he`s going
to have a live report from Standing Rock.

That does it for us tonight. We will see you again on Monday.

Now, it`s time for Lawrence.

Good evening, Lawrence.


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