The Rachel Maddow Show, Transcript 1/30/2017

Eric Lichtblau, Laurence Tribe, Bob Ferguson, Dahlia Lithwick

Show: The Rachel Maddow Show
Date: January 30, 2017
Guest: Eric Lichtblau, Laurence Tribe, Bob Ferguson, Dahlia Lithwick

ANAND GIRIDHARADAS, THE NEW YORK TIMES: – and I think there`s a immediate
triage that needs to happen but I think there`s a deeper effort to things
like the women`s march, things like this movement to actually go beyond
speaking to the tribe and try to expand that tribe as hard as it is when
you`re doing first aid.

CHRIS HAYES, “ALL IN”, MSNBC HOST: Anand Giridharadas, thank you for
joining us tonight. I really appreciate it.


HAYES: That is “ALL IN” for evening.

THE RACHEL MADDOW SHOW starts right now.

Good evening, Rachel.

RACHEL MADDOW, MSNBC HOST: Good evening, Chris. Thanks, my friend.

HAYES: You bet.

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

The FBI was founded in 1935. Its founding director was – say it with me
now – J. Edgar Hoover.

And for the first 37 years that the FBI existed, they never had another
director. J. Edgar Hoover only relinquished control of the FBI when the
universe pried it from his cold, dead hands.

In our system of government, judges get lifetime tenure but other than
that, nobody else is supposed to serve for life. But J. Edgar Hoover
served for life. He basically appointed himself FBI director for life.

And one of the ways that he was able to hold on to that job for 37 years,
one of the ways he was able to hold on to that power for the length of his
life is because politicians were terrified of him and for good reason. He
kept files on all sorts of politicians and he was absolutely not above
blackmailing politicians in order to keep him in line and keep himself in

So, that eliminated the threat that anybody was going to reach into the FBI
from the outside and remove him as director. But he also had to manage the
other direction. He had to make sure that he would never be toppled from
within the FBI.

And, you know, it`s not like there wasn`t cause. It`s not like the FBI or
J. Edgar Hoover himself were short on scandals, short on controversy for
all those decades when he was in control. I mean, even just the fact that
he was blackmailing politicians should itself had been a very large
scandal. Whether it was the blackmailing or the stuff from his own
personal life or FBI scandals dealing with the civil rights movement or
anything else you can think of, I mean, you would think that something
would have stuck to him. You would think that after almost 40 years on the
job, something would have risen to the level that Hoover had to go.

But Hoover managed that internally. Hoover never let that happen because
he kept his foot on the neck on every agent in that department for the
whole time he was in charge. Yes, he attracted some loyalty from within
the bureau, but anybody who wasn`t loyal, he quashed all internal dissent.

Famously, under J. Edgar Hoover, any FBI agent who expressed any
disagreement with the director, any FBI agent who had any problem with the
bureau or how the bureau was being run by Hoover, that agent would very
quickly find himself promoted. That agent would get promoted specifically
to Butte, Montana. J. Edgar Hoover`s FBI office, this one, in Butte,
Montana, was where he exiled any FBI agent who challenged him, and he
loathed any agent who criticized him. Hoover did that for decades.

Only problem with that system is that some FBI agents kind of liked Montana
when they got out there. It`s nice. So, that makes for a lousy form of

Of course, the other problem, the bigger problem, the problem for all of
us, was that by quashing all dissent, by literally exiling to Montana any
critics of the director, that whole agency, that whole bureau suffered for
almost 40 years from being in fear of and enthralled to one man`s singular
vision, to the exclusion of all other ideas, and that is what happened at
the FBI for the first 37 years of it existence while J. Edgar Hoover was
running. J. Edgar Hoover finally died in 1972. He was director up until
the day he died.

By the 1989, the FBI closed that office in Butte, Montana. Turns out they
didn`t need it anymore.

And dissent, of course, is a tricky thing. I mean, dissent from outside,
you can sometimes turn that to your advantage, right? You have the right
kind of enemy, you can make yourself look the right kind of strong.

But internal dissent, it`s tricky, right? You sort of need internal
dissent in order to stay healthy, in order to course correct when you`re
getting something wrong, especially if you`re a big, powerful agency,
right? You need there to be a certain amount of internal dissent and
discussion, and challenging the people at the top or you won`t grow.
You`ll get sclerotic. You will cease to be able to function at your best.

By its nature, though, dissent is intensely threatening to people in power,
right? The people in power who the dissenters are complaining about. And
so, it`s tricky. It`s a balance.

And the FBI under J. Edgar Hoover is the prototypical American government
example of not handling that balance very well. That`s how you get a
director for life. I mean, other agencies have tried to cure themselves
against dissent that naturally grows inside big powerful institutions, and
that`s why we have powerful whistle blower protection programs. That`s why
in all sorts of agencies, even in all sort of private companies, there are
sometimes means by which people can anonymously complain or anonymously
report up the chain things that they think are dangerous or wrong.

At the U.S. State Department, though, they`ve got some things singular. At
the U.S. State Department, thanks in part to the disaster that was the
Vietnam War, the State Department in the early 1970s created a unique,
protected channel for internal dissent.

It`s interesting. At the State Department, if you want to dissent, you are
legally protected, the agency`s rules say you are protected, you cannot be
punished for expressing your dissent. But at the same time, you`re not
allowed to dissent anonymously. You put your name to it.

Any State Department employee can use this. It`s called the Dissent
Channel within the State Department. It`s an overt thing. It is not
something that frequently gets used but it does tend to get attention when

If you work at the State Department, or the USAID, and you file a cable or
memo that says it is a Dissent Channel communication under State Department
rules, that communication from you must go directly to the desk of the
secretary of state personally and to the other top leadership of the
department personally. You can completely get around the entire chain of
command and go right to the top.

And once you do that, once you use the Dissent Channel, the State
Department agrees explicitly that you will get a substantive response
personally. You will get a response. Remember, you can`t file these
things anonymously. You have to put your name on it.

But in exchange for sticking your neck out like that, they guarantee no
reprisals. This is from the State Department rules. Quote, “Freedom from
reprisal for Dissent Channel users is strictly enforced. Officers or
employees found to have engaged in retaliation or reprisal against Dissent
Channel users will be subject to disciplinary action.”

So, this is, you know, the way the State Department has tried to handle it.
It`s a unique thing at the State Department. It`s an important part of the
culture of that institution. They allowed, they have carved out this
basically extreme measure. You can take as an employee of that department,
if you feel like you can`t get your voice heard through normal channels,
you can stovepipe your opinions, your views, your concerns directly to the
secretary of state.

And the Dissent Channel has been used over the years. It was famously used
on the treatment of Cambodia at the end of Vietnam War. It used by Iraqi
embassy personnel during George W. Bush administration about the
prosecution of the Iraq war. It was used quite famously, last year, when
51 State Department employees all signed on to the same Dissent Channel
memo complaining about U.S. policy in Syria, basically advocating that the
U.S. go to war in Syria.

Dissent Channel is a rarely used thing. It sends up a flare when it
happens. But the only way that system can exist is if everybody
understands and abides by the key part at the heart of it. No reprisals.

You`re going to put your name on this, so it can be acted, and you must be
responded to, but you can feel safe doing that because no reprisals.
That`s the rule. That`s the principle. That`s what makes it work.

Here`s how the White House responded today when they were told that only
100 employees are signing on to a Dissent Channel message criticizing the
new Trump Muslim and refugees ban.


SEAN SPICER, WHITE HOUSE PRESS SECRETARY: These bureaucrats have a problem
with it? I think they should get with the program or they can go. Hold
on, hold on. This is – this is about the safety of America.


MADDOW: “Get with the program or they can go.” The Dissent Channel within
the State Department, they`re doing it right. The White House is doing it
wrong, right? You`re not allowed to tell people to quit because they used
the Dissent Channel, right? No reprisals, right?

Dissent is not an easy thing for anyone in power. It never is. This
administration by their actions, they have generated an unusually huge
amount of dissent, of a lot of different kinds from the various art, and
some of the dissent is coming from within the government now as we are
seeing at the State Department and as we are seeing with one very dramatic
announcement that happened late tonight from the Justice Department. We`ll
be talking about that in just a moment.

We, of course, are also seeing large and basically spontaneous
demonstrations in the streets. Last weekend, it felt like a stunning
development when the day after inauguration, D.C. was host to one of the
largest marches that has ever happened in Washington, D.C., just a massive
turnout in the nation`s capital that dwarfed the number of people that
turned out the day before to watch the new president`s inauguration.

That was last weekend, and then, this weekend, it happened again. This
weekend, it was in response to the religion-based travel ban and the
refugee ban that the new president signed on Friday. This weekend again,
thousands and thousands and thousands of people in marches and protests and
rallies that were not planned for weeks in advance like the women`s march
was, right?

These outpourings of dissent this weekend, these were organic, spontaneous,
instantaneous, people flood it into the streets in major cities. We`ll
talk about what happened at the airports in just a second, but I also
think, it`s really interesting to note that people who don`t live in big
cities were visibly galvanized around the country this weekend.

You know, we`ve been tracking on this show these organizing meetings and
the events targeting members of Congress that have been organized by people
working with the Indivisible guide. We`ve been watching that because it
really seems to be mushrooming in terms of basically a channel for people
to organize against the Trump agenda.

But look at this, look at the turnout. Do we have that? There we go.
Look at this. This was this weekend`s Indivisible meeting in one
congressional district in Oregon.

You see, this is – what you`re looking at is a strange picture, is people
poking their heads through open windows. The reason they are doing this is
because this is what it looked like inside that meeting. People could not
get in, with or without their dogs. This – I think we`ve got another shot
of a different meeting, elsewhere in Oregon, also an Indivisible group this
weekend. This was a meeting of the Indivisible group in Kansas City,

This is an Indivisible group who said they were getting about 50 people
turning out for their organizing meetings. They were really psyched about
that. Now, more than 600 people turned out.

Look at this turnout in Virginia.

Those protests were already happening. Those groups are already forming.
But, boy, are they galvanized now.

At the airports by now, you`ve seen the footage of people turning out at
the international arrivals area at airports everywhere from North Carolina
to Ohio to San Francisco to Virginia to New York to Atlanta to Texas.
Again, these were not protests that were organized in advance, right?

Nobody was going to plan this in advance. Nobody knew this was going to
happen. People just heard that refugees were being held up at American
airports and not being let in and the news spread on social media and,
boom, people just turned up. And Democratic politicians I think have
finally started to realize that there is a tiger out there and they want to
try to catch it by the tail.

Senators like Cory Booker of New Jersey and Elizabeth Warren of
Massachusetts, they went to airports – Cory Booker was at Dulles Airport.
Senator Warren was at Logan Airport in Boston. They went in to join in
what was already happening at these airports, with or without them.

Some members of Congress went to airports in and around their districts
this weekend not just to protest but also to work. This is Congressman
John Lewis at the airport in Atlanta. Members of Congress heard that
people were being detained. They got down to the airports in their
districts or near their districts and tried to intercede. They tried to
intervene. They got to work to try to get people out.

In New York, we saw that kind of intervention from Congressman Jerry Nadler
and Congresswoman Nadia Velasquez who went to JKF airport and tried to
advocate to get people out of detention at that airport. In Virginia, we
saw Congressman Bobby Scott patiently, patiently, patiently trying to wear
down the local cops who would not let him in to speak with federal
officials at the airport.

Congressman Gerry Connolly of Virginia did the same thing. He ran into the
same resistance in terms of police officers not wanting to listen to him
despite his status as a federal official.

We have a little tape of that interaction. Congressman Connolly was not
happy about being stopped by what he wanted to do there. I will warn you,
here comes a swear word. It`s a very mild swear word. But still, a little


REP. GERRY CONNOLLY (D), VIRGINIA: I`m Gerald Connolly. I`m a member of

POLICE OFFICER: I understand.

CONNOLLY: I represent right up to this airport and we`re asking for access
to the people you have detained. Are people being detained?

POLICE OFFICER: Sir, I don`t know that. I work for the police department,
not for –

CONNOLLY: No, but you`re part – your job is to enforce the law.


CONNOLLY: We have a federal judge who has ruled that anyone being detained
has a right to legal representation.

POLICE OFFICER: I understand.

CONNOLLY: Have they been denied that right? Or are they in fact getting
legal representation?

UNIDENTIIFED MALE: I want you to know that the Dulles police have been
actually very helpful with the legal team.

CONNOLLY: And I want them to know that I`m going to be a pain in the ass.


MADDOW: I told you, a little swear. I warned you.

Members of Congress, senators showing up, intervening, right, being willing
to be a pain in the – Democratic Party mascot. I mean, this is an unusual
thing to see, right? We don`t usually get to see our members of Congress
working in this way.

I imagine for most Democrats, it`s more fun happening than any time they
hold a town hall or a community event these days.

Senator Whitehouse of Rhode Island held a community event last night, was
have to get moved outside both because of the thousand people who showed up
to give them a piece of their mind, but also because when it gets this
confrontational, people tend to take things outside.


UNIDENTIFIED MALE: Of these nominees that have yet to be confirmed, who
you will be voting for?


UNIDENTIFIED MALE: Will you vote yes on the remaining nominees?

UNIDENTIFIED MALE: He`s got a list.

REP. SHELDON WHITEHOUSE (D), RHODE ISLAND: I`ve got it and I don`t know
because I`m looking at the list right now.

UNIDENTIFIED FEMALE: Why would you vote yes for any of them?


CROWD: Just say no. Just say no. Just say no. Just say no. Just say
no. Just say no. Just say no. Just say no. Just say no.


UNIDENTIFIED MALE: How do we impeach him?


WHITEHOUSE: Treasury secretary, no.

Let me tell you the ones that I`m noes on.


UNIDENTIFIED FEMALE: He already said no.

WHITEHOUSE: So, secretary of education, no.


WHITEHOUSE: Secretary of state, no. Attorney general, no. EPA director,
really big know. Secretary of treasury, no. Secretary of labor, no.

Secretary of commerce, I need to talk to him about NOAA and what he`s going
to do. There are big ocean issues involved.

CROWD: Just say no! Just say no!

WHITEHOUSE: I hear you.


MADDOW: Democratic Senator Sheldon Whitehouse hearing from his own
constituents in Rhode Island last night. How do you think he`s going to
vote on the rest of the Trump cabinet nominees? What do you think he`s
going to have in mind when he makes those votes?

I mean, Democrats were already getting heat for having not voted in
sufficient numbers against Trump cabinet nominees, according to the depth
of feeling against the new administration among the Democratic base.

Last week, Senator Al Franken in Minnesota on this program and lots of
other progressive senators and lots of different forums, they all defended,
for example, their – the almost unanimous vote in the Senate for General
James Mattis to be the new secretary of defense, saying that Mattis might
be a good choice. He might be a check on the worst instincts of the

But then you know what, on Friday afternoon, there`s General Mattis
standing there literally with the president standing over his shoulder.
That blue suit, that blue tie, that`s General Mattis, standing there while
Trump is signing the Muslim ban, executive order.

So, if Jim Mattis was supposed to be the good one in terms of being a check
on the worst impulses of the Trump administration, what`s worse in terms of
their impulses than the Muslim ban and he stood literally right there over
his shoulder while he signed it.

So, now, there are signs that Democrats are starting to notice how much
backing they will have for saying no to Trump and how much heat they will
take for saying yes to Trump. Just tonight, Democrats have succeed in
delaying the vote that was supposed to happen tonight on the treasury
nominee, Steve Mnuchin. They have also succeeded on delaying the vote that
was supposed to be tomorrow on Linda McMahon to head the Small Business

They have succeeded in delaying the final Senate floor vote that was
supposed to be tomorrow on the Exxon CEO to be secretary of state. And
after watching as amazed as anyone as the streets have erupted and as day
after day after day of protests has met the first radical days of this new
administration, Democrats tonight didn`t just join everybody else`s
rallies, they held their own.

Democrats held their own event outside the Supreme Court tonight. Hundreds
of people turned up outside the Supreme Court tonight in D.C. And the
Democrats – House Democrats, Senate Democrats, they denounced the Muslim
ban. They promised legislation to undo it. They promised to fight it with
every fiber of their being.

And as that unfolded on the street in Washington tonight, that dissent from
inside the government, somebody fired a big new flare of dissent that the
administration seems to have no idea what to do with and that dramatic
story is next.


MADDOW: OK. We have some major breaking news this evening. We have just
been notified within the last minutes while we are in our commercial break
there the acting attorney general of the United States has just been fired.
The president has fired the acting Attorney General Sally Yates.

Let me tell you what`s going on here. Jeff Sessions, Senator Jeff Sessions
of Alabama is the nominee to be the new attorney general. He, of course,
has not been confirmed. He has not been sworn in, but we can`t go for any
length of time as a country without an attorney general, without a top law
enforcement officer in this country.

Jeff Sessions is the first proposed cabinet nominee from the new
administration to start the process of being confirmed. His were the first
hearings they held. But Democrats have succeeded thus far in delaying the
process, slowing down the process for Senator Sessions. They`ve delayed
even a committee vote on his nomination.

No votes have been cast on him yet at all. The first ones will come
tomorrow at the earliest.

The Department of Justice in the meantime has been under control of an
acting attorney general, who is an appointee from the Obama administration.
You see her here in the foreground. Her name is Sally Yates.

And Sally Yates tonight released a fairly dramatic statement, saying that
as long as she is attorney general, as long as she is running the Justice
Department, the Justice Department would not be legally defending the
travel ban and the refugee ban that President Trump ordered on Friday. She
says she is not convinced that the executive order is lawful.

She put out this statement tonight that reads in part, “Consequently, for
as long as I am the attorney general, the Department of Justice will not
present arguments in defense of executive order unless and until I become
convinced that it`s appropriate to do so.”

All right. So that`s where we were heading into this hour. That letter
was sent tonight at about 6:30 p.m. Well, now, just moments ago, just
literally minutes ago, the acting attorney general, Sally Yates, has been
fired by President Trump.

Sally Yates, congratulations, you have made history.

Here`s the statement from the White House explaining that she has been
fired. Quote, “The acting Attorney General Sally Yates has betrayed the
Department of Justice by refusing to enforce a legal order designed to
protect the citizens of the United States. Tonight, President Trump
relieved Ms. Yates of her duties and subsequently named Dana Boente who is
the U.S. attorney for the eastern district of Virginia to serve as acting
attorney general until Senator Jeff Sessions is finally confirmed by the

Again, acting Attorney General Sally Yates has been fired in this dispute
with the new president and the new administration over his very
controversial order to ban all refugees and to block travel to this country
from the residents of seven countries whose populations total more than 200
million people.

Joining us by now phone to react to this breaking news is Hallie Jackson.

Hallie, thanks very much for being with us.

What do you know that we don`t know from this statement in terms of what
just happened tonight?

HALLIE JACKSON, NBC NEWS CORRESPONDENT (via telephone): So, listen, I can
tell you a little bit, Rachel, at least a little bit of the backstory and
the effect that it played out sort of publicly after Sally Yates came out
and said she would not enforce this immigration executive order. The Trump
administration, insiders, inside the administration viewed this as
obviously a political move and publicly talked about how they believe this
is essentially the politicization of this issue, concerned in their view
about Yates deciding to not enforce the law. They believe that if this has
been an Obama administration law, it would have been fine for her, for

So, what this does? So, number one, not pleased. Number two, I will tell
you that it is breaking news to a lot of folks who follow the Trump
administration. That said, one thing we know about Donald Trump, just from
looking at the precedent that has been set over the last nearly two years
of his campaign and this transition has been that the president is somebody
who will enact retribution if he feels it`s appropriate to do so and
clearly he felt it was appropriate to do so. And clearly, in this
instance, he felt that it was appropriate to do so.

I will say, part two on this, remember what happens tomorrow morning,
Rachel, Jeff Sessions, the nominee for the attorney general, goes through
his Senate Judiciary Committee hearing to become the attorney general, or
the vote I should say. It is expected.

I was speaking with a source close to Senator Sessions tonight. It is
expected that that will go through as planned, but this does put pressure
on Republicans in the Senate to get Sessions through, essentially.

The person who has been stated to be the acting attorney general, I confess
I also am struggling with the last name pronunciation. Dana Boente I think
is an Obama administration appointee. He was appointed under Attorney
General Eric Holder to serve as U.S. attorney for the eastern district
before – back I think it was in 2013, 2012.

So this is somebody who is not, you know – who has ties to the Obama
administration, but as you see in that statement that just came out
tonight, he says that he`s honored to serve President Trump in this role
until Senator Sessions is confirmed and says he will defend and enforce the
laws of our country, to ensure that our people and our nation are
protected, Rachel, which is something clearly the Trump administration had
wanted to hear before naming him the new acting attorney general for the
next TBA period of time until Sessions gets into his place.

MADDOW: All right. And so, now, the next things that need to happen
obviously in terms of reporting and getting the full import of this event
tonight, Hallie, is that we`re going to have to learn a lot more about Dana
Boente, including how to properly pronounce his last name.

JACKSON: By a source e-mailed me (INAUDIBLE)

MADDOW: Say that again?

JACKSON: Boente.

MADDOW: Boente. The “o” is silent. We`ll work it out.

This is not somebody who was in our radar obviously, before this evening,
which is why we weren`t prepped on pronunciation and these other things.
But we`ll have to learn more about who is now the acting attorney general
of the Department of Justice.

Obviously, Sally Yates becomes the first person who is fired by this White
House on a matter of principle, a confrontation on a matter of principle
with the administration. Hallie, one of the things we`ll be watching for
the Justice Department, I guess, is to see people who had been asked to
stay on from the Obama administration through the transition, whether they
will resign in protest or themselves be fired.

Do we have any word from the White House on whether they expect Yates to go
alone, or whether they`re going to clear out other people, too?

JACKSON: You know, at this point, I think it is too early to say. I think
it`s interesting what you`re saying. I can speak not just to the Justice
Department but to the other department, which is the State Department as to
some of the concern of unrest that`s developed among the staffers, not the
highest level people but the sort of staffers on those lower tiers that
have developed.

So, I think there`s a question mark of how much frankly abrupt firing of
Sally Yates is going to play into the morale at the Justice Department when
we`ve already been seeing some of this play out over at the State
Department as well.

So, I think – I think there`s a lot of folks in Washington still kind of
looking at the same notes that we are and grappling with how to come to
terms with it.

MADDOW: That`s right. NBC`s Hallie Jackson, thanks for your reporting
tonight. Thanks for joining us on short notice as we cover this breaking

Again, to repeat this story that has just broken in the last couple of
minutes, the president has fired the acting attorney general of the United
States. That person was Sally Yates who had been an Obama administration

She released a letter this evening saying that, in her view, as long as she
was acting attorney general, the Department of Justice will not present
arguments in defense of president`s executive order on immigration and
refugees. She said that she was not convinced that it was a lawful order.
Again, the White House just announcing moments ago that they have relieved
her and replaced her with the U.S. attorney for the eastern district of
Virginia, Dana Boente, who will now be stepping in to be the attorney

Joining us now is Eric Lichtblau, who`s an investigative reporter for “The
New York Times.”

Mr. Lichtblau, I appreciate you being here with us tonight. Thanks.

night here in Washington.


Tell me, on the one hand, I feel like once we got the letter from Sally
Yates saying under her as long as she was in charge of the Justice
Department, there would be no legal defense of this order. I feel like
everybody started saying her days are numbered.

But even with that expectation over the course of this evening, how unusual
is it for an acting attorney general to be fired in this way and for a
reason like this?

LICHTBLAU: Well, this is a dramatic one-two punch. I mean, these are both
very unusual and first of all, for even an acting attorney general to
question the legality of an executive order in the way that Sally Yates did
is very unusual. And then, even more unusual for the administration to
fire her. I mean, it sort of evokes the Saturday night massacre under
Nixon in Watergate when you had Nixon firing the attorney general who
refused to carry out one of his orders.

MADDOW: One of the things that is a point of contention and both sides
addressed this in their statements tonight, is the fact that the Office of
Legal Counsel reportedly signed off on the order – the president`s order
from Friday on immigration and refugees.

And in their statement tonight explaining that Sally Yates was being fired,
the White House tonight notes, this order was approved as to form and
legality by the Department of Justice Office of Legal Counsel.

Sally Yates addressed that saying, “My role is different from that of the
Office of Legal Counsel which reviews executive order for form and
legality. Their reviews are limited to the narrow question of whether in
their view a proposed order is lawful on its face and properly drafted.
Its review doesn`t take account of statements made by an administration or
its surrogates close in time to the issuance of an order that may bear on
the reporter`s purpose and they don`t address whether any policy choice
embodied in an order is wise or just.”

So, boiling this down for those of us who aren`t lawyers or close legal
observers, what is this fight about?

LICHTBLAU: I think Yates was saying, look, I`ve done a broader review than
my Office of Legal Counsel did. They were merely signing off on the form
and legality, in their words, of the order. I was looking at the broader
Justice Department policies. She said, I was questioning whether it was
wise and just were the words she used, and she was also referring, as you
just alluded to, to statements made before signing.

I think it`s pretty clear that what she was talking about there were
comments that President Trump himself, along with Rudy Giuliani made,
spelling out, really, that this was meant to allow Christians in and ban
Muslims. So, she didn`t specifically address that in her memo, but it`s
fairly clear that`s what she was taking into consideration in saying, is
this a legal and justifiable policy?

MADDOW: And she`s not, in her statement, making a sort of root and branch
argument against the policy. She doesn`t go through and list the
particulars of why she thinks it may not be lawful and the Justice
Department shouldn`t defend it but says she`s not convinced that the
executive order is lawful.


MADDOW: From your reporting and understanding of this issue, do you think
it`s likely that other people at the Justice Department, ranking positions
at the Justice Department will share that view and will now leave or be
fired because they`ll basically take the Sally Yates line on this which, of
course, the administration says is incompatible being at the Justice

LICHTBLAU: I think it`s clear before she issued this memo tonight that
this had caused some significant unease for lawyers at the Justice
Department who remember had already had to go into court beginning over the
weekend in response to petitions filed by people who were detained and
going to have to file motions in the next few days and appear in court to
defend this. And the idea of defending a policy that, first of all, they
knew nothing about until the moment it was signed and, second of all, they
may have some legal and ethical concerns about it, I think was causing some
discomfort and now with Yates stating this publicly, I think you are going
to see certainly lower level lawyers at the Justice Department echoing that
same refrain.

MADDOW: When the transition happened, there was some consternation that
the new administration wasn`t doing a good enough job of staffing up, of
just having enough people in place. Not just in Senate confirmable jobs
but all sorts of jobs, to be able to keep the government running from the
previous administration to the new one. We got reports that a lot of
people who were Obama administration appointees were asked at the very last
minute to stay on.

Is that the case at the Justice Department, are they fully staffed? Are
there people who in large numbers have stayed on simply as a courtesy and
as good public servants even though they don`t agree with this

LICHTBLAU: Yes, I don`t think numbers really were a problem at the Justice
Department. That was one of the few places you didn`t hear a lot of
couldn`t controversy or discontent over the way the transition had gone.
It seemed to have gone fairly smoothly, to be honest, before tonight.

And Sally Yates was asked by President Trump to stay on. She was the
deputy attorney general since 2013 under Obama and she stayed on as acting
attorney general for a range of duties, including signing foreign wiretaps
which she needed to do in before today was not a problem in her role. She
was clearly a caretaker until Jeff Sessions could come aboard.

MADDOW: She will become – her role in history will be different than it
otherwise would have been before tonight. This is a very big deal. This
is a very unusual occurrence.

Eric Lichtblau, thank you helping us understand it as we are just getting
in these early details tonight. Thank you for your time.

LICHTBLAU: Thank you.

MADDOW: Again, the acting attorney general of the United States, Sally
Yates, has just been fired by the president of the United States.

She put out a statement this evening saying that she was not convinced that
the president`s executive order on Friday on immigration and refugees was a
lawful order. She said, “As long as I`m acting attorney general, the
Department of Justice will not present arguments in defense of this
executive order unless and until I become convinced that it is appropriate
to do so.”

Rather than trying to convince her, they fired her tonight. This is an
unusual thing. Right now, one of the things that we`re keeping track of is
who will become the acting attorney general, who will become the top law
enforcement official in the United States?

His name is Dana Boente. He is the U.S. attorney for the eastern district
of Virginia. He was appointed by President Obama.

We`re looking into his background now, trying to get a sense of what he
might do at the Department of Justice while we`re awaiting the potential
confirmation votes for Jeff Sessions which may start as early as tomorrow
in the Senate. Although at this point, who knows how Senate Democrats will
respond and how they will retaliate against the administration if they will
at all over this dramatic news.

The other thing we`re trying to understand now, as we get into sort of the
belly of this story, as we start to understand what this means, is the
historic nature of an action like this. We just saw Eric Lichtblau,
reporter for “The New York Times,” reference the Saturday night massacre
which is, of course, a Nixon era proverbial blood letting that I think is
what flashed in everyone`s mind when we first heard about this.

For some perspective on that as a historical bench mark and how big a deal
this is, we`re joined by presidential historian Michael Beschloss who we`ve
called on very short notice.

Michael, thank you for being with us tonight.

pleasure, Rachel. History yet again, right?

MADDOW: Well, I mean – is it? It certainly is a big deal. When Eric
Lichtblau just referenced the Saturday night massacre there from the Nixon
era, can you remind us what he`s talking about there and tell us whether
you see parallels to that?

BESCHLOSS: Sure will. There are some parallels. That was a Saturday
night in 1973. Richard Nixon was president. It was the Watergate scandal
and he was fighting for his life.

There was a special prosecutor who had been appointed, Archibald Cox, who
was demanding Richard Nixon`s famous tapes and Nixon was refusing to give
them up. And so, Nixon finally decided he`s going to fire Archibald Cox,
but to do that, he had to get his attorney general to do it.

The attorney general was Elliott Richardson, an upstanding gentleman from
Massachusetts. He said, absolutely not. I will quit before that happens.
So, he quit.

The number two was a man named William Ruckelshaus. He wouldn`t do it
either. He also quit.

Number three was Robert Bork, who later one was nominated for the Supreme
Court, the nomination failed. Bork said, “I will fire Cox.” Cox was fired
and there was a cord thrown around his offices. The FBI was called in and
that was called the Saturday night massacre.

It was on this network by the anchor at this time, this may be the greatest
constitutional crisis in our history. What we`re seeing now in 2017
doesn`t loom as large as that but I think it raises a couple of questions,
which are, number one, how independent is the Department of Justice going
to be under the Trump administration? This raises real questions.

Number two, you mentioned that Jeff Sessions is about to be confirmed. The
whole nature of that confirmation, I think, is likely to be transformed
and, number three, you know, Donald Trump stock and trade when he ran for
president was I`m going to be this great manager. I`m going to run the
country and the government in a way that you have never seen before.

We are ten days into this administration and given those ten days, I don`t
think it`s entirely a great advertisement for great management.

MADDOW: Michael, in terms of the political norms and the way that history
you just described resonates in our current politics, after the Saturday
night massacre, after other crises that we have had where the Department of
Justice and its independence, the very independence of law enforcement in
this country, to be free from partisan pressure and interest, after we`ve
had challenges to that in the country, has that shaped an ethos at the
Department of Justice, where you would expect career folks, people who
would have otherwise a fairly nonpartisan approach to working that Justice
Department, people who would – like Sally Yates, who would stay on from
Barack Obama to a Trump administration, despite the radical change in
politics simply because the new administration asked and it`s the right
thing to do.

Would you expect that this would rub the Justice Department so much the
wrong way that we`ll see either an exodus or they`ll have to mass fire
people, there will be some sort of revolt?

BESCHLOSS: Oh, I think you could see an exodus of career people because
that`s what this department is supposed to be. There is an ethos that goes
back to the beginning of this country and it also had that affect at the
time of the Saturday night massacre because – once Archibald Cox was fired
by Robert Bork on behalf of Richard Nixon, two things happened. Number
one, there were a lot of petitions filed for Richard Nixon`s impeachment
and that`s when he really started to look like a goner. Number two, the
Senate demanded that the new attorney general be someone who was clearly
independent of Nixon and a post went to a guy named William Saxby, who is a
Republican senator from Ohio, but one who detested Richard Nixon and was
known for this almost more than any other Republican senator.

So, I think the result for this for Donald Trump is going to be there will
now be expectations for independence in this department and whoever is the
next attorney general – much greater than there might have been 24 hours

MADDOW: NBC News presidential historian Michael Beschloss – Michael,
absolutely invaluable to have you with us, especially on short notice
tonight. Thank you. I appreciate you being here.

BESCHLOSS: My pleasure, Rachel. Be well.

MADDOW: So, to repeat this breaking news this evening, this is just a
remarkable development. Jeff Sessions is the nominee to be the new
attorney general. Jeff Sessions has not yet had the first vote on his
confirmation in the United States Senate.

It`s expected that Democrat also put up a fight against Senator Sessions.
Republicans do not appear to be willing to go along with that. Before
tonight, I would say that Senator Sessions was expected to have his
committee vote and probably to be approved out of committee tomorrow on
more or less a party line vote.

That may now be further pressured by whatever Senate Democrats can do given
what has just happened tonight at the Department of Justice. After the
acting attorney general who was asked to stay on from the Obama
administration, after she put out a statement tonight saying that she was
not convinced that the president`s executive order on refugees immigration
from Friday, she was not convinced that it was lawful. She said that while
acting attorney general, the Department of Justice would not present
arguments in defense of the executive order.

After she said that, the president tonight fired her and has replaced her
with the U.S. attorney for the eastern district of Virginia. His a man
named Dana Boente, who was not somebody who has a significant national
profile despite the very important job he has as U.S. attorney. He was
appointed U.S. attorney by President Barack Obama and we`ll all be learning
more about Dana Boente in the days ahead.

But this is a dramatic move. We just spoke with Michael Beschloss about
the historic nature of it. We spoke with Eric Lichtblau of “The New York
Times” about the sort of shock wave this is sending across Washington.

But I want to bring into the conversation now, Laurence Tribe, who`s an
esteemed professor of constitutional law at Harvard Law School. He`s
argued before the U.S. Supreme Court dozens of times. He`s one of a few
litigators in America who is also a household name because of his job.

Professor Tribe, thanks very much for joining us tonight. I appreciate you
joining us.

LAURENCE TRIBE, HARVARD LAW SCHOOL (via telephone): Thanks for calling,

MADDOW: How big of a deal is it for the president to fire an acting
attorney general specifically over this kind of a dispute?

TRIBE: I think it`s historic. I agree with Michael Beschloss. It
certainly reminded me immediately of the Saturday night massacre.

The only difference, well, there are many differences, but one is how
quickly this has happened in the Trump presidency, as though history is
being collapsed into a black hole and everything that`s happening faster
than the speed of light. And it seems to me that because the Sessions
nomination is itself already controversial, because the executive order
really challenges who we are as Americans and violates important parts of
the Constitution, including the clause forbidding an establishment of

Because we have seen a succession of national protests from the ground up
against the way this president is conducting his almost extemporaneous
presidency, I think it`s an important turning point in our history and I
think tonight is part of that extraordinary moment that we`re living

MADDOW: Once the acting Attorney General Sally Yates put out this
statement tonight, Professor Tribe, saying that as long as she was acting
A.G., the Justice Department would not defend this in court because she was
not convinced that it was lawful. Once she put out that statement, was it
inevitable and in fact was it right that the president relieved her of her
job and replaced her? Did she essentially dig her own grave here or did
the president have a choice?

TRIBE: I think the president did have a choice. He could have arranged
for the appointment of a special defense counsel to defend his position
even when the Justice Department wouldn`t. I mean, there have certainly
been cases in our own recent history where the Department of Justice was
unwilling to defend a particular law and Congress appointed someone to
defend it.

In this case, because it wasn`t the law that was an issue but an executive
order, the president might have arranged through the White House counsel`s
office to have his order defended. But for him to turn the Justice
Department through this charge into part of his system and compromise its
independence suggests that he has no commitment to the institutional
integrity of the department we rely on to represent the rule of law and not
simply the will and whim of the president of the United States.

MADDOW: If this firing tonight has, as you say, compromised the
independence of the Justice Department, do you expect or would you call on
senior members of people serving in ranking levels of the Justice
Department to leave, to resign and protest, to do anything else they could
to get out of a department that has now been compromised by this action by
the president?

TRIBE: Well, I think they should all be ready to resign on principle if
their positions are compromised similarly. But from the distance that I
occupy at the moment and without knowing more of how much good they can do
inside versus what they can do by resigning in protest, I would hesitate to
advise anyone at this point.

I certainly think that the fundamental issue of how one deals with various
forms of evil in government, whether one remains to try to ameliorate the
harm or whether one leaves is a deeply personal and problematic choice for
many people. But certainly working within the system that is running at
odds with the American identity and with the American Constitution is
something that one should only do if one genuinely is ready to resign on
principle is simply working as a cog in a machine that is obviously
corrupted and getting worse by the hour.

MADDOW: Laurence Tribe, constitutional law professor at Harvard, joining
us on very short notice tonight as we`re continuing to cover this breaking
news – Professor Tribe, thank you. I really appreciate it.

TRIBE: Thank you, Rachel.

MADDOW: You know, as what Professor Tribe was saying there is being ready
to resign and protest on a matter of principle, this, to be clear tonight,
was not a resignation on a point of principle. This was the acting
attorney general, Sally Yates making a point of principle, taking a stand
for how she believed the Justice Department should act with regard to the
president`s order banning refugees from this country and banning travel to
this country from people of national origin from seven specific countries.
She said that she was not convinced the executive order was lawful and,
therefore, as acting attorney general, the Justice Department under her
would not defend it. That is what led to her being fired tonight and
replaced by Dana Boente, again, the U.S. attorney for the eastern district
of Virginia.

We`re still sort of absorbing this information. This is the first – I
guess this is the first person fired on a point of principle like this of
the Trump administration. I think we were all expecting there would be
resignations on points of principle. That`s not out this went down.

I want to bring into the conversation now somebody who has an interesting
role to play in this entire confrontation, his name is Bob Ferguson. He`s
the attorney general of the state of Washington, the state of Washington
has just filed in federal court an effort to stop that presidential order
from Friday on immigration and refugees. They`re seeking a national
restraining order against that policy.

Mr. Attorney general, thank you very much for your time tonight.

Thanks for having me on. Appreciate it.

MADDOW: Let me just get your response first. Obviously, you`re the
attorney general of a state. The acting attorney general of the United
States has just been fired, on a point of principle over this matter that
you are suing the federal government about. What`s your reaction to Sally
Yates being fired tonight?

FERGUSON: It`s troubling. And I`ve been listening to you and your guests
and I think they`re hitting it right on the mark, this is troubling for the
Justice Department and the independence of that department.

I think Sally Yates, she had a right. It`s a difficult order to defend.
We believe it`s unconstitutional and un-American. But overall, yes, this
is a troubling day. There`s no two ways around that.

MADDOW: Can I just ask as a matter of federal procedure – so you`ve
brought this case against the president`s order in federal court, you are
seeking a nationwide stay. We`ve seen the court – excuse me, the order
appear in court five times in one way or another since he signed it on
Friday. And so far, the other has gone 0 for 5 but the type of relief that
has been ordered by all of those five judges has been temporary and limited
in terms of the immediate impact of the order.

You are actually seeking a nationwide stay. Had the Justice Department
gone ahead with what Sally Yates said, she said they wouldn`t defend it in
court, had the president not fired her tonight, what would have happened
with your first hearing on your measure? Who would you have been arguing
against? How would that have been handled?

FERGUSON: I think that`s hard to predict. It`s possible the president
could have hired somebody else to do it. But we were wondering about that
literally as I was driving to the studio to chat with you.

At the end of the day, you`re exactly right. The litigation we`re bringing
in Washington state challenges the very constitutionality of this executive
action and if we are right, and courts agreed, it would invalidate that not
just in Washington state but nationwide. And that`s the difference from
the other litigation you`ve been reporting on.

MADDOW: What do you think of the chances for your filing? Obviously we
have seen – one of the more remarkable things to watch this weekend was to
see lawyers in their street clothes laptops in hand flood into the nation`s
international airports and the international terminals to provide whatever
legal help they could to individual people who were caught up in this
order. That was the origin of those five court actions that resulted in
various limitations of the policy over the course of the weekend. Those
narrow actions obviously were narrowly targeted and immediate.

What do you think the chances are for a nationwide stay based on your

FERGUSON: Let`s put it this way, Rachel – I would not have filed this
litigation unless I was confident we would prevail. In the courtroom, it`s
not the loudest voice that prevails, it`s the Constitution. And the bottom
line is, this executive order is unconstitutional.

And we are confident that a judge here in the western district of
Washington will agree and we`re optimistic we`ll grant that restraining
order as well.

MADDOW: Bob Ferguson, attorney general of the state of Washington which,
again, seeking a nationwide stay against the president`s order. Thank you
very much. Please keep us apprised. This is obviously a story move in
directions with can`t anticipate. Thank you, sir.

Again, I want to reiterate what`s happened here. We`ve got the U.S.
attorney for the eastern district of Virginia now we`re told sworn in as
the new acting attorney general of the United States.

Again, as has been frequently true about this administration, we don`t have
some of the very basic details that you would expect to get in moments like
this. Like we`ve had these strange incidents where we`ve got the president
having reportedly signed an order and we don`t have the text of it.
Leading to these weird circumstances where the order is apparently going
into effect, we`ve never seen it in print and therefore can`t evaluate it.

Similarly, we got news tonight that the new acting attorney general was
sworn in at 9:00 p.m. this evening. We don`t know who swore him in. We
don`t know if there were witnesses to it. We don`t know where it was.

Obviously, the Trump administration controlled the timing on this because
they were the ones who decided when to fire the acting attorney general.
So, they could have gotten it together to do the swearing in of the new
attorney general any way they wanted to. But all we`re doing now is taking
their word that he was sworn in as our new acting attorney general as of
9:00 p.m.

Joining us now is my friend, Dalia Lithwick, who`s a senior editor at
“Slate” and expert at making legal things that don`t make sense to us non-
lawyers make sense to us non-lawyers.

Dahlia, thanks very much for being with us tonight.

DAHLIA LITHWICK, SLATE (via telephone): Hi, Rachel.

MADDOW: How big a deal is this?

LITHWICK: I think it`s a big deal. I think, you know, what you`re hearing
is echoes of the Saturday night massacre, 1973, you know, a purge. It
feels very, very much, if you read the statement the White House put out,
you know, they`re accusing Sally Yates of betraying, that`s the word they
used, the Justice Department.

It`s an amazing statement. It, you know, calls her an Obama
administration appointee who is weak on borders, weak on illegal
immigration. I mean, it feels like something President Trump wrote on the
back of a napkin and handed to someone. It doesn`t feel like this is how
we talk about the most senior lawyer in the Justice Department.

MADDOW: The Justice Department obviously is an agency that we expect to be
politically independent, even though it`s got political appointees at its
upper echelons and this is something we fight about a lot as a country. I
think about the slings and arrows born by people like Eric Holder, people
like Janet Reno, people like John Ashcroft, people on the other side of the
aisle saw them as public enemy number two, in the administrations they
didn`t like, after public enemy number one was the president.

But despite that, the Justice Department does represent law enforcement in
this country, does have to at least not only be seen as an independent
agency free from political suasion, do you think that this encroaches on
that in a way that is out of keeping with our usual politics around these

LITHWICK: I think it not only encroaches, Rachel. I think that`s the
point. The point by dismissing her as, you know, weak and an Obama
administration appointee, by suggesting she`s been politicized, I think the
attempt here is to say, we`re going to have friends and enemies and there
is nobody, not judges, not justices, nobody who is going to be seen as
above politics.

And I think this really does race the question with Jeff Sessions, you
know, the judiciary committee is meant to vote on him tomorrow, the whole
Senate is meant to vote at the end of the week. I think this really raises
the question of can he possibly be deemed above politics if he`s going to
rubber stamp Donald Trump initiatives? Or is it, in fact, true that we`ve
destabilizes the idea of law and constitutionality, rule of law, justice,
all of it is just my team versus your team?

And I think it`s incredibly dangerous in terms of using that kind of
thinking in talking about justice and the Constitution.

MADDOW: What do you think will happen next at the Justice Department?
Obviously, Sally Yates not the only high-ranking Obama administration
appointee to stay on at the request of the Trump administration. What do
you think – what do you think will happen now that she`s been fired?

LITHWICK: I hesitate to hazard to guess, Rachel. I will just say that if
what we saw at the State Department today with the draft memorandum
circulating that, you know, dissenters, you know, many, many dissenters
having problems with the executive order and told pointblank by Steve
Bannon, you know what, just leave. If you`re not loyal, just leave.

MADDOW: By Sean Spicer, yeah, that`s right.

LITHWICK: This is a loyalty test, I think, at this point.

MADDOW: And, Dahlia, I guess the – I mean, part after who we need to
figure out is nuts and bolts. What is Dana Boente like who is the eastern
district of Virginia U.S. attorney, who`s now going to be taking over, how
will the Senate Democrats respond in terms of whether or not they can throw
additional sand in the gears in terms of the Jeff Sessions nomination, will
he get a confirmation vote tomorrow? Will there be either an exodus or
mass firings at the Justice Department in response to this?

I mean, all of it is in process, like Laurence Tribe was saying earlier
this hour, it feels like time has collapsed and everything is happening all
at once. Do you have any hope for any sort of course direction that
reestablishes the political norms and judicial norms that used to exist
around these issues?

LITHWICK: You know, I think to the extent there can be course correction,
it`s going to be people picking up the phones and saying I think Jeff
Sessions needs to answer some questions before we vote on him. I think
that if people believe that there is such a thing as the Constitution, not
your constitution versus my constitution, if people still believe that
there has to be one body of law in this country, and we do our best to all
agree on what it is, then I think the course correction doesn`t come from
the top down anymore, it comes from the bottom up.

MADDOW: Dahlia Lithwick, senior editor at “Slate” – thank you for joining
us as we cover this remarkable event.

President Trump firing the acting attorney general of the United States,
this just happened within the last hour.

Our continuing coverage now goes on with Lawrence O`Donnell, “THE LAST WORD

Good evening, Lawrence.


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