The Rachel Maddow Show, Transcript 2/9/2017

Guests:
Bob Ferguson, Nina Totenberg, Anthony Romero, John Archibald
Transcript:

Show: The Rachel Maddow Show
Date: February 9, 2017
Guest: Bob Ferguson, Nina Totenberg, Anthony Romero, John Archibald

RACHEL MADDOW, MSNBC HOST: And thanks to you at home for joining us this
hour. Lots going on tonight, obviously, as we are absorbing this unanimous
ruling from the federal appeals court, the Ninth U.S. Circuit Court of
Appeals.

Bottom line, by now, you have heard the president`s ban is not in effect,
he refugee ban, the travel ban on people from majority Muslim countries.
It is legally blocked by this ruling. The Trump administration has been
denied again in its efforts to have its ban reinstated.

And we`re going to hear in just a couple of minutes from some of the people
who have been involved directly in this case, including the man who brought
this case. We`ll hear about what this means, what is expected to happen
next. We`ll hear about how – sort of what the scope is of this ruling,
what the judges could have ruled on and what they did rule on.

But, you know, for those of us who aren`t lawyers and those of us who are
watching this case so raptly, not just because we care about this policy
but also because we care about our country more broadly and we`re wondering
what this new administration is going to be like, we wonder what they`re
going to do, we`re interested in this as the first big fight between the
judicial branch of government and this new executive branch of government
coming to power with President Trump.

For those of us who have been watching it because of those bigger dynamics,
not just stuff specific to this policy, I want to bring to the table two
things tonight. that I think are important to understanding those bigger
levels of importance. And one of them is something very specific. One of
them is some new polling data among Trump supporters as to whether or not
Trump supporters think the new president should follow court orders even if
he doesn`t agree with them.

We`ve got that new national data exclusively here tonight. Nobody else has
this. We`re gong to break that news tonight. It will curl your hair when
you hear it and I think it`s important to hear. We`ve got that coming up
in just a few minutes. That`s one.

The other thing I want to bring to the table, though, is from this ruling
itself. You know what the bottom line is, right? The bottom line is the
ban cannot go back into effect. The ban is legally enjoined. It`s not in
effect right now.

But beyond that bottom line, at several points in this ruling, the judges
in the Ninth Circuit Court appear to – again, I`m not a lawyer, but it
appears they basically have to explain some very basic, very basic civics
and government to the new administration, like fifth grade stuff because at
least the way the ruling is written, they seem to think the government
doesn`t know basic stuff about what they`re supposed to do and how stuff
works. So, I just want to point out a couple of these instances in the
ruling because I think it seems important regardless of the specifics of
this policy.

I think it seems important. We`re all watching to see what happens when
the judicial branch and the Trump administration come into conflict. Now
that we have seen that happen, one of the things that have been exposed by
that conflict is that the court has had to explain stuff so basic, you
would expect a high school freshman to have already mastered it and the
court had to explain this to the administration because the administration
didn`t know it already so let me give you a couple of these from the
ruling.

Here`s the first one. Even if you are not a lawyer, you will see what I
mean here, this isn`t like a complex point of order. This is like hey,
duh, you guys. It`s footnote eight, this first one I want to show you.
Footnote eight, quote, “The government asserts that unlike the president,
courts do not have access to classified information about the threats posed
by terrorist organizations operating in particular nations. The efforts of
those organizations to infiltrate the United States or gaps in the vetting
process”.

But – you can sort of hear the court`s voice here, you guys. “But you
guys, the government may provide a court with classified information.
Courts regularly receive classified information under seal and maintain its
confidentiality. Regulations and rules have long been in place for that.”
And they give a list of those rules and regulations by which courts very
regularly receive classified information and keep it under seal. Right?

I mean think about this. It`s one thing if you`re in politics, you here in
the administration, one thing to tell the public, oh, you don`t know the
scary stuff we know. If you knew, you`d support everything we`re doing.
It`s one thing to say that to the public, to say that to the press.

But you can literally not say that to a federal appeals court because if
there`s something important in the information you`ve got about terrorism,
if there`s some important classified information that you`ve got that is
Germane to why you have to take this policy action, you can show that to
the court. The Supreme Court is allowed to see anything you want them to
see.

Federal court sees super-duper tippitytop classified information all the
time. You guys know that, right? It`s not actually a defense against
review by the judiciary that the judiciary hasn`t seen what you`ve seen.
If that`s your argument, you then have to show them what you`ve seen. You
don`t get that?

Here`s another one. That`s footnote eight. That`s my personal favorite.
Here`s another one. This is the part where the Trump administration is
telling the court, don`t rule on anything in the ban, don`t rule on
anything in the executive order that has to deal with legal permanent
residents, that has to do with people with green cards.

Remember when they implemented this in the first place and this was all
this confusion as to not just whether or not people who were citizens of
other countries could come visit, but what happened people who had green
cards? What about people who are legal permanent residents of the United
States who are basically all but citizens? They can do everything but
vote.

People who lived here for decades. People could clear – you`re going to
apply it to them, too? Yes, we are. No, we`re not. Are you applying it
to them? We sure are. There was all this confusion about that, right?

Well, in the court ruling tonight, they addressed the fact the government
is saying, hey, listen, don`t rule on anything that has to do with people
with green cards, we`re saying the ban doesn`t apply to them anymore.

Here`s how that looks in the ruling. This is on page 21. Quote, “The
government has argued that the state`s challenge to the executive order
based on the order`s application to lawful permanent residents, that
challenge is moot because several days after the executive order was
issued, White House counsel Don McGahn issued authoritative guidance
stating that the executive order doesn`t apply to lawful permanent
residents.”

That`s what you`re saying. You`re saying they shouldn`t challenge that
because we say it doesn`t apply to green card holders. Well, here`s the
burn from the court. Here`s what the court says.

Quote, “At this point, however, we cannot rely on the government`s
contention the order no longer applies to lawful permanent residents. The
government has offered no authority establishing that the White House
counsel is empowered to issue an amended order superseding the executive
order signed by the president.” And that proposition seems unlikely.

Quote, “The White House counsel is not the president. And he is not known
to be in the chain of command for any of the executive departments.
Moreover, in light of the government`s shifting interpretations of the
executive order, we can`t say that the current interpretation by the White
House counsel will persist past the immediate stage of these proceedings.”

In other words you guys, it`s called an executive order. You can`t just
say, oh, you know what? Don`t rule on that part of the executive order,
we`ve decided to change that now, never mind what it says.

That`s not how it works. The White House counsel says, don`t pay attention
to that part of the executive order anymore? That`s not good enough. It`s
still until the executive order.

So, stuff like this in the ruling tonight. It is materially interesting I
think because it implies that the new administration is not only getting
clearly shut down by the courts they`re also completely blowing it on basic
stuff.

I mean, the nut of this ruling is that the Trump administration is wrong
when they say the president has unreviewable authority to do whatever he
wants on immigration. The court knocks that one`s head off, right?

This is the part you`ve seen quoted all night. “There is no precedent to
support this claimed unreviewability which runs contrary to the fundamental
structure of our constitutional democracy”. I mean, that`s the nut of this
here. And that`s as simple as it gets.

No president has unreviewable authority. No president in American laws
says a president has unreviewable authority. Even on national security,
even on immigration, of course, the president is reviewable, that`s why we
have a judicial branch of government that answers only to the Constitution.
That`s the nut of the ruling.

Even on that point, though, I can get that there will be a fight about
that. There can be a fight about that. There will be a fight about that.

The part that takes me aback is the dumb stuff, right? I mean, they don`t
know that a presidential executive order actually means what it says? And
no one other than the president can fix it if it is screwed up, right?
They don`t know that courts can look at secret stuff?

I mean, that`s not just regular legal back and forth. That`s like watching
Roger Federer trying to play tennis with a two-year-old. But, wow, this is
our government now.

Joining us now is Bob Ferguson, the attorney general of Washington state
who, it should be noted, won tonight. It was his office that brought this
challenge to the executive order.

Mr. Attorney General, appreciate your time in the midst of all this.
Congratulations on your win tonight.

BOB FERGUSON, WASHINGTON STATE ATTORNEY GENERAL: Thank you so much,
Rachel. Great to see you again.

MADDOW: So, you expressed confidence from the very beginning that you
thought you would prevail in this case. Did you prevail in the way that
you thought you did? One of the things I thought was interesting about the
ruling is that the judges made decisions to weigh in on certain parts of
the argument, and others, they put aside and said we have no need to weigh
in on those pieces of it. Did this happen the way you thought it would?

FERGUSON: Let`s put it this way, Rachel, it`s a unanimous ruling and we
could not have written a better ruling from our perspective. The court
essentially granted everything we wanted at this stage of the proceedings.

MADDOW: What happens next?

FERGUSON: That`s up to the federal government. They can appeal or seek
review from the U.S. Supreme Court. Again, I do not think that they will
find much in their favor with the Supreme Court. So, what`s going to
happen is it will go back to Judge Robart, the trial court judge appointed
by George W. Bush who granted the temporary restraining order and will have
proceedings on the merits of our claims and discovery where we can see
depositions and documents from the administration to make our case.

MADDOW: OK. So on the discovery and depositions part of it, one of the
things that was very interesting about tonight`s ruling is that the judges
brought into their ruling public statements from the administration. They
referenced the exhibits, the evidence you provided which you said
essentially proved the intent of the ban. You said the statements by the
president, statements by members of the administration indicated this was
basically intended to be a version of a Muslim ban and so that showed
something about the state of mind that led to this executive order.

If it goes back to the trial court and you can do discovery and take
depositions and stuff, will you be try to figure out how this was written,
what the intentions were behind writing it the way it was written who took
part in putting it together?

FERGUSON: Yes to all of the above. That`s exactly right. Part of our
case, we have many claims, as you know, Rachel, both statutory and
constitutional, but when it gets to that issue of – on the religious side,
preferring one religion over another, yes, we are entitled to seek
documents, to take depositions, to help establish our case.

And one thing that`s important to point south that trial court judge, Judge
Robart, in order to grant that temporary restraining order, one thing he
had to determine or grant that significant relief is a likelihood that we
will ultimately prevail on the merits, which is I think is a clear signal
which direction this case is ultimately heading.

MADDOW: If it does proceed the way you are expecting it to, do you
anticipate you`ll get sworn testimony from the president himself at some
point?

FERGUSON: Like I said, I don`t want to get out ahead of my team on this.
We`ll obviously be having a thoughtful approach this. But you can be sure
that I will use every tool at my disposal, Rachel, as we have so far, to
make sure the president is held to the rule of law and his administration.
I will absolutely accept nothing less than that.

We`re a nation of laws. Everybody must follow our laws and that includes
the president of the United States.

MADDOW: Washington State Attorney General Bob Ferguson, I know a very busy
night for you. Thank you for taking time to talk with us. I really
appreciate it, sir.

FERGUSON: Thank you, Rachel. I appreciate it.

MADDOW: Thank you.

I want to bring in to the conversation now, the great Nina Totenberg, legal
affairs correspondent for NPR.

Nina, it`s really nice to see you this evening. Thank you very much for
being with us.

NINA TOTENBERG, NPR LEGAL AFFAIRS CORRESPONDENT: My pleasure.

MADDOW: Can you give us a layman`s understanding of what the court could
have done and how much they did within that realm of possibility? How far
did they go and how emphatic was this ruling?

TOTENBERG: It was pretty emphatic but still pretty limited, because all
this was about was the temporary restraining order, the stay on the
government from continuing to enforce that executive order. So, now, comes
the question of whether the order itself is constitutional or not within
the statutes and there are lots of arguments on that.

MADDOW: Do you think the Washington state attorney general who we just
heard from is right in assessing that probably the next step here is that
this is going to be back with the trial court judge? Back with the
district court judge and it will be a matter of working this out on the
merits, taking depositions, getting – using discovery to get to both the
intent and the impact of this order?

TOTENBERG: I think that`s probably right although you can never be sure.
I would doubt the Supreme Court really wants to get into this now. Courts
usually like to have a record, something to base their opinion on, and the
Ninth Circuit panel made the compelling argument in their decision that the
government hadn`t shown that it was irreparably harmed, whereas the people
who were being hurt by this were being irreparably harmed, and that the
government hadn`t shown there was any serious danger, that they were free
to do that, they hadn`t done that, but the people obviously were being
harmed by this.

So, my guess is that the Supreme Court, especially with only eight members,
would rather not touch this right now and I wouldn`t be surprised if the
administration – I mean, Donald Trump tweeted tonight, “See you in court,
the national security is at stake.” But it might be the better part of
valor to write a more circumscribed executive order, have the president of
the United States sign it and try to defend that.

MADDOW: Does it matter that there isn`t a new solicitor general? We
reported last night that Chuck Cooper, conservative lawyer from Washington
was a leading contender to be the solicitor general in the new
administration. Today, he has pulled his name from contention. They don`t
have anybody in that position. Obviously, the attorney general has been in
office for a day.

As the administration starts to gel with getting more people into top legal
positions, do you expect that we might see a change in strategy or just in
tone from them on this?

TOTENBERG: We might. I mean, they have so few people in place and some of
the acting people were Don McGahn`s law partners and have refused
themselves from signing on to – they took their names off the brief,
perhaps with an excess of caution about potential conflicts of interest,
but they did.

And, you know, people who come into the new administration in the first
days talk about walking down empty halls, seeing empty garages with no cars
because all the people who run these departments are gone and what they`re
replaced by with this time in a rather extraordinary way are people who
don`t have much government experience. So, they don`t – they haven`t been
through this before. And it`s showed in some of the execution, shall we
put it.

MADDOW: Certainly, it seemed that way, and the way that the ruling was
written about some of the particulars of this order.

Nina Totenberg, legal affairs correspondent for NPR, thank you so much for
being with us tonight to help us understand it.

TOTENBERG: My pleasure, Rachel.

MADDOW: All right. As I said earlier, still ahead tonight, we`ve got
something to add to the conversation around this. I think add to the big
picture observation about this administration coming to loggerheads with
the judicial branch for the first time. We`ve got something to add to that
that you can`t get anywhere else that we`ve got exclusively tonight which
is new national polling among Trump supporters as to whether they think the
president should follow court orders he disagrees with.

It`s pretty stunning stuff. We`ve got that ahead exclusively tonight.
We`ll also be joined live tonight by the executive director of the national
ACLU, Anthony Romero.

It`s a big night. Stay with us.

(COMMERCIAL BREAK)

MADDOW: So, we are still absorbing the news tonight of this new ruling
from the Ninth Circuit U.S. Court of Appeals. This is a court one level
below the U.S. Supreme Court.

A unanimous panel of that court tonight brushing back the new
administration once again on the refugee ban and the Muslim ban. But to
that conversation, we`ve gotten an important piece of new data to add to
the understanding of what this means, because everybody is wondering about
how this new administration, this new president is going to test the
strength of our constitutional system, right? Everybody is wondering if
the president will feel bound to respect the courts, particularly if the
courts keep blocking his policies like they`ve been doing so far.

Well, we`ve got new information tonight that gives us I think an important
metric on that front. Now, we`ve got this exclusively tonight, brand new
national polling data from PPP. This is the second time in a few weeks
from Public Policy Polling has given us a look at this data. And I`m
thankful to them for letting us see it first.

I think tonight, this is particularly on the nose newsworthy because in one
important instance, it shows us the difference between where the country is
at in terms of accepting this new administration and approving or not of
what the new president is doing. It shows us the distance between where
the country is at as a whole, and where Trump supporters are at.

And watch what that looks like when it comes to whether or not the
president ought to obey the rule of law, whether he ought to obey the
federal courts or not.

OK, so first let me give you kind of the big picture. The White House is
not going to like any of this, overall. But I`m going to give you the top
line national results here. I will go through these quickly. They all
point the same direction.

Do you approve or disapprove of President Donald Trump`s job performance?
Answer, disapprove, 43 percent-53 percent. A net 10-point disapproval
rate.

Do you have a favorable or unfavorable opinion of Donald Trump? Answer,
unfavorable.

Do you support or oppose Donald Trump`s refugee and Muslim travel ban?
Oppose.

Do you think the ban was well-executed or poorly executed? Poorly
executed.

And then the answers to the subsequent questions just go exactly the way
you`re thinking they`re going go, exactly the way the White House doesn`t
want to see.

Do you think the intent of the executive order was to ban Muslims from the
United States? Answer, yes. It was the intent of that order to ban
Muslims.

Do you support or oppose banning Muslims from the United States? Answer,
by a large margin, oppose.

Who do you trust more to make the right decisions for the United States –
judges or Donald Trump? Answer, judges.

Do you support or oppose the Affordable Care Act? Answer, support.

Do you want Congress to repeal the Affordable Care Act? The answer is no.
No by a lot, do not repeal it.

Americans also say by a large margin that Donald Trump should release his
tax returns. Americans now say by a larger margin he should divest himself
from his business interests, something he has not done.

In terms of the new administration`s other signature policies, Americans,
since you asked, oppose building a wall with Mexico if American taxpayers
have to pay up front for the wall. Americans don`t think millions of
people voted illegally in the last election even though the president says
they did.

And look at this one. Asked about the “New York Times” and “Saturday Night
Live,” Americans think both of those institutions have more credibility
than President Donald Trump. So, it`s just unrelentingly bad news for the
new administration in this new national poll.

In terms of how the country views the president, his policies, his
credibility, I mean, broadly sneaking the country doesn`t even believe him
when he asserts that something is true.

This is interesting, though, even though every question in the national
poll turns up a top line result that is bad news for the new
administration, look at this. This is question 32 in the new poll. “Would
you support or oppose impeaching Donald Trump?” Answer, dunno. Hmm, sure,
46 percent of the country is all ready to impeach the president less than
three weeks into his time in office and that`s remarkable, but look at the
opposed number. Even Steven, 46-46. And almost 10 percent of people say
they`re not sure.

So, maybe that`s some comfort to the new president. Three weeks to his
first term, he`s still four points away from an actual majority of the
country wanting him impeached.

Of course, there`s another way to look at the impeachment number, which is
worse for the new president and the new administration. Think about it.
It`s kind of interesting, right?

I mean, you look at results of this poll, people not liking the new
president, not liking his policies, not believing him, not trusting him.
It`s kind of interesting in a poll like this, the only question where he`s
not underwater is should he be impeached? That`s interesting, right?

Here`s the black cloud inside that silver lining. I think the really bad
news for the administration here is that this might be why we`re getting
that result on the impeachment question. Look, quote, “Who would you
rather was president? Mike Pence or Donald Trump?” Answer from the
American public. Ooh, not sure.

Despite these spectacularly negative polling results for everything having
to do with the new president, the only place he comes close to a positive
polling result is when people are asked to consider if Mike Pence might be
even worse. So, yes, maybe hold off on impeachment for a minute. That
would make Pence president? Yes, not sure.

Again this is new national polling data from PPP. We`ve got this
exclusively here tonight. But here is the on-the-nose part that I think is
really important for what just happened this evening in the Ninth Circuit
Court, and the angry response the president has already had to this court,
and to other multiple federal judges who have ruled against him on his
refugee ban and Muslim ban so far. This is what you get if you ask
Americans as a whole, quote, “Do you think Donald Trump should be able to
overturn decisions by judges that he disagrees with?”

Asked the whole country, yes or no, the answer, resoundingly, by almost 40
points is no. No, of course not. We`re Americans. We know how the
Constitution works, right? The president should not be able to overturn
decisions by judges just because he disagrees with those decisions. That`s
the national answer.

But now look at this. Ask that same question to Donald Trump supporters
and this is what you get. Donald Trump voters, an actual majority of them,
say that Donald Trump should be able to overturn decisions by judges that
he disagrees with, 51 percent of Trump supporters say, yeah, yeah, he
should.

And so, tonight, the judiciary once again in the biggest way yet, said no
to the president. This three-judge panel, the federal appeals court judges
unanimously ruling that the Trump refugee ban and Muslim ban cannot go into
effect. Trump voters say this president should be able to throw that
ruling aside and do whatever he likes.

There`s a slim majority, 51 percent of Trump supporters, but that`s a
majority of Trump supporters, wildly different than the rest of the
country`s view on the subject, wildly different than anything the
Constitution would allow, but honestly, stick a pin in that, man, that`s an
important benchmark to note here.

What does this make him feel like he can do? And does that number among
his supporters rise even further if he keeps attacking judges and he keeps
attacking the courts that are now standing in his way? I think this is a
benchmark moment here. This is important stuff. Watch this space.

We`ve got Anthony Romero from the ACLU here, next.

(COMMERCIAL BREAK)

(BEGIN AUDIO CLIP)

REPORTER: Any kind of reaction that you might have for us here on the
court ruling, Mr. President?

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: We`ll see them in court.

REPORTER: So you`re going appeal, take this to the Supreme Court?

TRUMP: We`ll see them in court. It`s a political decision that we`re
going to see them in court and I look forward to doing it.

REPORTER: So, you believe the judges made a political decision?

TRUMP: We have a situation where the security of our country is at stake.
And it`s a very, very serious situation. So, we look forward – as I just
said – to seeing them in court.

(END AUDIO CLIP)

MADDOW: That`s the new president reacting to tonight`s court ruling
against his retch gee ban and Muslim ban. NBC News spoke to him in the
West Wing right after he heard about the ruling, he said he heard about it
on the TV. He said he was on his way to dinner with Secretary of State Rex
Tillerson and billionaire Republican donor Sheldon Adelson. I wonder what
they`ll be talking about over dinner.

Joining us is Anthony Romero, president of the ACLU, which filed an amicus
brief on behalf of the state of Washington in this case. I should tell you
that the ACLU has filed a dozen cases on the travel ban thus far, including
the very first case that got the first ruling against the ban in New York.

Mr. Romero, thank you for being here.

ANTHONY ROMERO, ACLU EXECUTIVE DIRECTOR: Hello, Rachel.

MADDOW: First of all, when the president says it`s a political decision,
what does mean? What does that sound like to you? What do you think is
important about that?

ROMERO: He`s trying to dismiss the courts again. It`s like these so-
called judges, trying to undercut the credibility of our courts. And
what`s remarkable is when he steals our tag line “see you in court”, I feel
like I want to sue him for that. This was my tag line back in September
and October.

But yet, the president really does very cumbersome things that are
troubling and problematic. The idea he says that we`re going to question
the validity of these judges, that it`s a political decision undercuts the
credibility of our court, troubling even his Supreme Court nomination Mr.
Gorsuch in talking with senators than disheartened by some of those
comments. And then the polling you just showed, the impact it has on the
American people on his supporters.

We call Trump a one man constitutional crisis back in July and it`s clear
now when you look at these polling numbers and the dog whistle politics
that he`s engaged in, that this really does go to the heart and the
credibility of our constitutional system.

MADDOW: And what`s the remedy? I mean, if we think of the courts as the
protectors of the Constitution, the people who ensure that nobody in any
part of government can act in a way that violates the Constitution and we
expect that their orders will be followed. If that is going to come into
question, what do you expect will be the remedy?

ROMERO: I think the remedy has to come from a vigorous public debate where
American citizens continue to put the pressure on Mr. Trump. Not – even
those who agree with him to say we believe in these courts. These courts
are essential. They`re American. We need the Republicans to find their
spine and use their tongues, right?

They`re all holding their breaths and pretending they`re not washing this
disaster play on the national scene and if we have real leaders in Mitch
McConnell and Paul Ryan and they believe in the court system and they
believe in the oath that they took to be in Congress and the Senate, they
need to speak up, because otherwise, their whole constituency, that 51
percent that believes Mr. Trump doesn`t have to follow the judicial orders,
that`s their base. That`s not Trump`s base, that`s also their base. So,
what are they going to do to fix their base?

MADDOW: Looking at this ruling tonight, I`m not a lawyer, but it`s my
reading of it that in addition to ruling quite emphatically and
definitively on the matter at hand, the court really sort of had to school
the administration on some basic matters of governing and procedure.

ROMERO: Yes.

MADDOW: Your counsel saying something about an executive order is not the
same thing as changing the executive order.

ROMERO: The absence of a record or some evidence that they didn`t submit.

MADDOW: Yes, and their basic claims about case law which were wrong in
terms of what the precedent is that you have to follow around the
reviewability of the president`s actions.

So, they don`t have a new solicitor general in line. They have had a new
attorney general for a day. Do you actually expect their competence, their
basic ability to enact what they want to enact is going to get better and
that`s going to make it harder to fight them?

ROMERO: It has to get better. It can`t get worse. I mean, if they don`t
up their game they`re out of the game.

It`s clear they haven`t put forward the best arguments in the courts. They
haven`t put the report in a way that`s convincing to the Ninth Circuit or
even the district court judge. I still think that we have a credible case.
I mean, I think the attorney general in Washington has done a fantastic job
with this case.

There are dozens of lawyers working on these cases. We have 12 cases on
the Muslim ban but there are dozens of lawyers all across this country,
IRAP, the Yale Law clinic, the Immigrant Legal Resource Center, they`re all
bringing these types of cases, they`re being schooled by the best
immigrants` lawyers in the country. I think ultimately we win.

MADDOW: Even if they, like Nina Totenberg suggested earlier tonight that
maybe they`ll rewrite and try to get it closer to constitutional muster by
just doing a better job. You think even if they do the best possible job
in presenting this policy, rerolling it out on the merits you can`t beat
them?

ROMERO: Yes, because they can`t do etch a sketch on it. They can`t erase
the clear racial bias. They can`t erase the comments of President Trump on
Christian Broadcast Radio wanting to carve out exceptions for minority
religions so he could protect Christians.

It`s really – they try to back up and do it all over again. They still
have all this history that it`s clear what they`re trying to push. It`s
unconstitutional – and look at the public opinion. Step back from the
court for a second.

We`re winning in the court of public opinion. People are turning out in
these protests are still going on at the airports, the spontaneous protests
at the courthouse when we won our case, that initial first stay, that
Saturday after the first filing of the executive order. People are
activated in a way that`s remarkable, in a way I hadn`t seen in the last
15, 16 years.

MADDOW: Yes.

ROMERO: I don`t think they win this one.

MADDOW: And bluntly in this new polling that we`ve got people are against
what he`s done in the executive order, they think it was an attempted
Muslim ban, they don`t want to ban Muslims and by the way, they don`t like
the new president.

Anthony Romero, president of the ACLU, thank you for coming in tonight.

ROMERO: Thank you. Always great to see you tonight.

MADDOW: I heard you were supposed to be here that was way more fun than
being here tonight. You canceled your plans to come in. Thank you.

ROMERO: But I`m here with you, I`m delighted.

MADDOW: Thank you.

All right. We`ve got much more ahead, including one Republican congressman
who was having a whale of a huge and boisterous town hall as we speak.
We`ve got a camera there. Stay with us.

(COMMERCIAL BREAK)

MADDOW: Welcome to Morris, Minnesota.

Morris, Minnesota, is in western Minnesota, out in the plains. It`s a
really tiny town, it`s really cute. Population about 5,000 people. This
is their stoplight.

The county that includes Morris, Minnesota, went double digits for Trump in
the last election. But look at this. In little Morris, Minnesota, they
now have 300 people signed up for one of these Indivisible groups, people
that are using the Indivisible guide to plan their activism to oppose the
new administration and their agenda.

There`s 5,000 people in the up to, that`s how many people they got to turn
out for their first Indivisible meeting. That`s Indivisible Morris,
Minnesota. They will now be part of these visits and protests by local
voters to the offices of their lawmakers.

We have been watching these evolve over the past three weeks. As you would
expect, people are starting to get more resourceful. That one we just
showed there, that was in Jim Risch`s office in Idaho. Indivisible Idaho.
That`s amazing. People are getting more resourceful over time.

In Troy, Michigan, Congressman Dave Trott`s office posted a sign on the
door that said “we do not accept walk in appointments.” That meant the guy
in the chicken suit had to wait outside.

But inside, these constituents from Dave Trott`s district just posted their
feedback right on his office door since they wouldn`t let them in the door
so he`ll have notes waiting for him. Thank you very much.

It`s kind of an important dynamic in terms of trying to understand the
actions of our legislators to know what`s going on in their home districts.
People who have not been active in politics before are barnstorming their
legislators in huge numbers and asking them to listen up.

This weekend, Oregon Senator Ron Wyden held a town hall in his home state,
more than 1,500 people showed up. A lot of them people who said they had
never gone to a town hall before.

In Utah, the district represented by Congressman Jason Chaffetz, his
constituents have been hounding him for weeks to hold a town hall. He
finally announced one for tonight and more than 1,200 people from his
district RSVP`d. That town hall is tonight and this is how they welcomed
Congressman Chaffetz as he walked out on to the stage.

You can hear a hail of boos and saying “do your job, do your job.” They
have been jeering and chanting on and off. He`s been struggling through a
Q&A with this roomful of his constituents, but he`s still hanging in there
trying to answer questions. Good for you for finally doing this,
Congressman, but this is a town hall where 1,200 of your constituents
RSVP`d so they could ask these questions they`ve had bottled up for weeks.
And I think it`s not going to get easier as the night goes on.

But this is going on right now, right this second in Jason Chaffetz`
district in Utah. Talk about timing.

(COMMERCIAL BREAK)

MADDOW: Five days before the election in November, the governor of
Alabama, this handsome devil, Republican Governor Robert Bentley, he got
some excellent news. That sweet, sweet, sweet news was that the Alabama
House impeachment investigation against him had been put on pause, had been
put on hold. You might remember last year Governor Bentley made national
headlines for his involvement in a surprisingly high octane sex scandal for
this retired dermatologist and church deacon.

The crusading family values Republican governor had allegedly been having
an affair with one of his close advisers, he denied it, but the scandal
blew sky high with the release of a sex tape, an audiotape in which the
governor could be heard saying a lot of very specific lurid things about
how – what he wanted to do to and with his lover, who he denied was his
lover. That`s burned into my brain like somebody wrote it there with a
branding iron.

Anyway, once the tape and the rest came to light, a committee in the
Alabama legislature launched an impeachment investigation into whether the
governor used state resources to help cover up the affair. By September,
that committee issued subpoenas for the governor`s documents. The
investigation was proceeding but then five days before the presidential
election, November 3rd that impeachment inquiry into the legislature got
put on hold, got put on hold at the direction of the state attorney
general, Republican attorney general of Alabama, his name is Luther
Strange.

He told the legislature that their investigation could interfere with this
investigation. They should put their proceedings on hold. Let the A.G.
take it from here. The attorney general wrote a letter to the legislature,
November 3rd that said it would be, quote, “prudent and beneficial to delay
the work of the House Judiciary Committee,” quote, “I respectfully request
that the committee cease active interviews and investigation until I am
able to report to you that the necessary related work of my office has been
completed.” Letter dated November 3rd.

Five days later, Donald Trump won the presidential election. Today,
Alabama Senator Jeff Sessions was sworn in as the country`s 84th attorney
general.

And back in Alabama, Governor Bentley got to announce who he would pick to
replace Jeff Sessions as Alabama`s senator. Want to guess who he picked?

It`s too easy. Obviously, he picked the attorney general, Luther Strange,
the guy who put the kibosh on the investigation in the legislature because
of his own related investigation. Today, he jetted to Washington to be
sworn in as your newest United States senator.

Back in Alabama, today`s events were greeted with headlines like these.
“Robert Bentley`s Strange Bargain Sets New Benchmark for Alabama
Corruption.” Or this one, “Luv Guv`s Strange Appointment: Naked Alabama
Politics.”

But at today`s announcement in Montgomery, the Alabama press corps was
assured there was nothing to see here, all totally above board.

(BEGIN VIDEO CLIP)

REPORTER: Senator, some critics have said that the appointment after you
called for a pause in the investigation looks bad. Can you respond to
that? Having an issue in the election –

SEN. LUTHER STRANGE (R), ALABAMA: You know, I think – I don`t see it as
an issue. The letter that was sent to the legislature that you`re
referring to was sent before there`s even a presidential election. I mean,
politics is furthest thing from anybody`s mind as they are always in these
kind of cases.

REPORTER: Governor, what would you say about the concerns that there`s a
conflict of interest because of General Strange asked for the state
investigation to be suspended?

GOV. ROBERT BENTLEY (R), ALABAMA: Let me answer that. General Strange
just answered the question. He wrote that letter long before anybody ever
thought President Trump would be president.

UNIDENTIFIED FEMALE: Next question.

(END VIDEO CLIP)

MADDOW: Next question. No big deal. Politics was the furthest thing from
anybody`s mind.

Let me just put it to you this way, though. Not only did the governor of
Alabama just get to give the deal of a lifetime, right, the deal of a
lifetime, a job for life as U.S. senator to the guy who may or may not have
been investigating him for this thing to potentially get impeached for, but
he now also get to pick his replacement as attorney general. So, gets to
pick basically the outcome for the investigation of his impeachment scandal
and sex scandal, which made today an even better day for the governor of
Alabama than that day five days before the election. Amazing.

Joining us now is John Archibald, a columnist for “The Birmingham News”.

Mr. Archibald, it`s really nice to see you. Thank you for your time
tonight.

JOHN ARCHIBALD, THE BIRMINGHAM NEWS: Thank you, Rachel.

MADDOW: Did I basically get that right? Are those sort of the dynamics
here?

ARCHIBALD: Oh, yes, you did. The optics are terrible. But the ethics are
far worse.

MADDOW: So, for those of us who haven`t been following the politics here
closely, nut up for us here for a second, why this particular appointment
is so problematic. I was struck by a comment from the state auditor that
of all the people who the governor was considering putting in that Jeff
Sessions seat, that the one that you should pray he doesn`t pick, the one
that was so ethically disastrous would be for him to put Luther Strange
there. Why has there been such concern?

ARCHIBALD: Well, because this is a guy who`s holding a special grand jury
that is considering whether to indict the governor of Alabama. And this is
the guy who went to the governor of Alabama, regardless of when that letter
was filed, and said: Please give me this job, while I am considering
whether to indict you or not.

It is one of the most amazingly – it is just – it is corrupt on its face.

MADDOW: In terms of what happens next here, obviously the special election
is not going to be until 2018. Meanwhile, though, the governor now gets to
also pick a new attorney general, right? He gets to replace somebody else
to take over for Luther Strange as attorney general. Conceivably the
person to take over that investigation, that could lead to an indictment.

ARCHIBALD: Right. And let`s face it. The attorney general himself has
not been really involved in these investigations. He`s more like: I don`t
want to be involved and let professional prosecutors handle it. A number
of the people that are being talked about as replacements are close friends
of Bentley or close to Bentley. And it`s really thought that they will –
you know, could go as far as to disband the corruption unit and as soon as
that happens, we`re in a whole other world.

MADDOW: John, what`s the opinion about this? What`s public opinion like
on this subject in Alabama? Obviously, I know the partisan contours of
Alabama. I know it`s a red state. I know that the Republicans have a lock
on state government. But how do people feel about this?

ARCHIBALD: They are aghast. I think most of them that I have talked to
certainly find it unbelievable and they really do believe if Luther Strange
really wanted to be senator for life, he would have had the nerve to say,
no, to this appointment and to not seek it.

Obviously, it is difficult to root out a sitting senator. But I think it
will haunt him. I think it will haunt both of them.

MADDOW: John Archibald, columnist for “The Birmingham News” in Alabama –
John, thank you for helping us understand. I appreciate it.

ARCHIBALD: Thank you.

MADDOW: All right. We`ll be right back. Stay with us.

(COMMERCIAL BREAK)

MADDOW: OK. We`ve got breaking news.

National security story just posted by “The Washington Post” about national
security adviser Michael Flynn and the contacts with Russia. “The
Washington Post” just posted this. National security adviser Flynn
discussed sanctions with Russian envoy before Trump took office despite
denials, officials say.

So, this is something that the national security adviser Mike Flynn had
been asked about yesterday. Flynn yesterday denied that he had ever
discussed Russian sanctions with the Russian ambassador. Asked in an
interview with “The Washington Post” whether he had ever done so, he twice
said, no.

Today, however, Flynn sent out a spokesman to retract that denial,
basically, to back away from that denial. Now, the spokesman from Flynn
says that he indicated that while he had no recollection of discussing
sanctions, he couldn`t be certain that the topic never came up.

Obviously, the issue here is twofold. One is that the FBI reportedly is
continuing to investigate General Flynn`s contact with the Russians.
Whether or not that is specific to the issue of sanctions or whether that
is related to what we`re told is a broader investigation into contacts
between the Trump campaign and the Russian government while the Russian
government was trying to influence the outcome of our presidential
election, we don`t yet know.

But the other matter here is that if Flynn as a private citizen before he
was sworn in, became national security adviser if while the Obama
administration was in office he was communicating with a foreign government
to undermine the Obama administration`s stance on sanctions or anything
else toward Russia, that would violate federal law in terms of private
citizens essentially undermining the foreign policy of the United States.
So, again, this is just broken from “The Washington Post” and more on this
I imagine over the course of the evening. But we`ll post in at our blog at
MaddowBlog.com if you haven`t seen it yet.

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

Now, it`s time for “THE LAST WORD.” Ari Melber sitting in for Lawrence
tonight.


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