The Rachel Maddow Show, Transcript 3/2/2017

Guests:
Adam Schiff, Lee Gelernt
Transcript:

Show: THE RACHEL MADDOW SHOW
Date: March 2, 2017
Guest: Adam Schiff, Lee Gelernt

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

CHRIS HAYES, “ALL IN” HOST: You bet.

MADDOW: And thanks to you at home for joining us this hour.

Attorney General Jeff Sessions recusing himself from overseeing
investigations into the Trump campaign and Russia. This is a big deal,
right? We`ve been following this for a long time. We`ve been following
this pretty intense attention.

When the attorney general recused himself today, it felt like one of those
moments that was like exactly halfway between “oh my god, I can`t believe
that happened” and “oh my god, I can`t believe it took this long far to
happen.” But that happened. We`re going to have more on that story ahead
tonight, including the super serious new allegations against the FBI in
this matter.

Attorney General Jeff Sessions says as of today, he`s getting out of the
way in these investigations of the Trump campaign and Russia. But all this
time thus far, has he been in the way of those investigations already? Has
Attorney General Jeff Sessions been directing the FBI`s investigations in
this matter thus far? Specifically, has he been telling the FBI to not
share information about what they found with congressional investigators?

Because tonight, one very prominent congressional investigator says that
the FBI is actually blocking the Trump/Russia investigation from moving
forward. Did Jeff Sessions instruct the FBI to do that before finally
recused himself at 4:00 this afternoon? Or – and this might be worse –
did the FBI make a decision to obstruct the investigation on its own?

Did the FBI itself decide of their own accord to obstruct the congressional
investigation into this matter in which case we have to ask if the FBI will
continue to block the congressional investigation of this even now that
Jeff Sessions is out will they continue to do that for their own reasons?
And what happens if the FBI has to recuse itself? But, what, there`s no
deputy FBI.

So – I mean, so, yeah, among people who want a real investigation into the
Trump/Russia ties, you know, the word today was, yay, Jeff Sessions is
recusing himself from this matter. But now, it`s time for much harder
questions than that, with much more worrying implications. Is the FBI
legitimately investigating this incredibly serious national security matter
or not?

I mean, beyond their own supposed investigation, is the FBI in fact
blocking the other major investigation that`s supposed to be going on? One
very serious, very sober person who`s in a position to know the answer to
that says that is what the FBI is doing and he`s demanding to know why.
That person will be joining us live here in just a few minutes.

So, that flaming comet of a story is coming up on our show tonight, in what
has really been a whipsaw day in the news. But we`re actually going to do
that story second tonight. We`re going to lead tonight with a different
story. We`re going to lead with some news that we are going to break here
exclusively.

We have obtained a document. We have now verified its authenticity. This
is exclusive news, you won`t see this anywhere else.

But this new document would appear to be kind of a stake in the heart for
the Muslim ban, for the new president`s travel refugee Muslim ban.

OK, here`s the story: Inauguration day was on a Friday this year. And the
weekend after the inauguration, you might remember that things were a
little nuts. What is believed to be the single largest day of coordinated
protests in American history, well over a million people on the streets of
D.C., but millions more people all over the country in small marches and in
some very, very large marches, there were marches held in all 50 states,
that was the first weekend of the new presidency.

Then, the second weekend of the new presidency, it happened again. More
protests, again surprisingly large, except the ones on the second weekend
of the Trump presidency, they hadn`t been a couple months in advance like
the women`s marches the weekend before. These ones on the second weekend,
they, in fact, weren`t planned in advance at all. They were spontaneous,
urgent reactions to the sudden no-warning announcement that Friday, one
week after the inauguration, that ended up being one of the only actual
policies this administration has tried to enact thus far.

The surprise slapdash, barely coherent executive order by the new president
banning travel to the United States by citizens of seven specific majority
Muslim countries. I say it was a slapdash order because there was
apparently no down-the-chain consultation on how to enforce this thing.
They just threw it out there on a Friday night, good luck.

Does it apply to dual citizens? Does it apply to people who are legal
permanent U.S. residents? Does it apply to people who are holding legal
current visas that give them explicit U.S. government permission to be
here?

It does? It applies to those people? Are you sure? Does it really apply
to all those people? No, you`re not sure? Well, who gets in and who
doesn`t?

Some people got lawyers or even members of Congress to help them at the
airport and try to get them released by airport authorities. Some people
just got sent back. Some people apparently got tricked or bullied into
signing away their green cards, right, which is nuts, signing away your
legal residency or people got tricked into signing away their legal visas
giving them official government permission to be here. It was chaos.

This was the second weekend of the new presidency, and it was this
ridiculous thing that was put in place amidst, I mean, this unbelievably
chaotic rollout and that was what the second weekend of the Trump
presidency looked like and this policy very soon started to fall apart,
right? The administration said it did apply to legal residents and then it
didn`t. Then it did apply to people with current visas and it didn`t.

Ultimately, it didn`t take long for the courts to start stepping in and
say, oh, heck no. Please, stop this.

The first ruling that stopped the ban was from a district judge, a federal
district judge in New York, hundreds of people waiting in the middle of the
night outside that courthouse for that ruling. People had gone to the
airport to protest on Saturday night and then they gone from the airport to
the courthouse to hear the ruling. A cheer went up when the ruling was
announced.

Government lawyers trying to defend that ban that night for that judge
apparently – I mean, they plainly appeared to have no idea how to defend
it in court.

By Monday, the acting Attorney General Sally Yates, she had put in the
writing to the new White House. She said that she didn`t believe this new
Muslim ban was legal. She said she would not instruct Department of
Justice lawyers to defend it because she said it was not going to pass
constitutional muster.

The courts agreed. Federal judges in New York and Virginia and Washington
state, they all said some legal version of no, no, no. Ultimately, it was
a court one level below the Supreme Court that issued a unanimous three-
judge ruling that said no, capital N, capital O, you cannot do this.

It was a mess and this really is one of the only actual policy things the
administration has tried to do. It`s been a complete mess.

The president reacted to that appeals court ruling by saying, “We`ll see
you in court.” Remember that? We`re going to fight this all the way.
Then, a week later, his administration told the court, actually we`re not
going to fight you at all, we`re going to rescind our executive order.

We had the attorney general of Washington state here on this show that
night basically taking a victory lap when they rescinded it, right? His
lawsuit killed the Muslim ban. The only worry was that the administration
said actually they were going to rescind the Muslim ban, but they were
going to write a new one to replace it.

And I mean – here`s how you know something is seriously wrong here. On
February 16th, they told the court that they were going to rescind the old
Muslim ban but a new Muslim ban was coming. They said it was going to
happen right away. They said it was going to happen, quote, “in the near
future.” That was February 16th.

Five days later, the 21st, the White House said it was almost ready, it was
due out right away, definitely this week. And then we got to the end of
that week. By the 23rd, they were saying, OK, it`s not ready yet. We`re
pushing it back. Maybe it will come the following week, which meant it was
coming this week.

Then on Monday night this week, we were told, OK, definitely it`s going to
come out on Wednesday.

Then on Tuesday, like around midnight, no, it`s not coming out tomorrow.
It`s not coming out on Wednesday. The reason it wasn`t going to come out
on Wednesday is they said the White House likes the president`s State of
the Union-ish speech on Tuesday night. They didn`t want to put out the new
Muslim ban the following day because that would step on the news of the
speech. They wanted to let the speech breathe a little.

Literally, that`s what they told us that. The speech needed to breathe.

Remarkable sense of urgency on what`s supposed to be a desperately
important matter of national security, right? We`re going to put this off
for the day. We like the way the speech is breathing. The respiration of
the speech is very satisfying to us.

Well, now, it`s Thursday. Where`s the Muslim ban? And the latest word
from the White House is, I know we said we`re going to let it way a day,
that would mean Thursday, but here, it`s the end of the day Thursday, it`s
not here, OK, it`s not coming today, it`s also not coming tomorrow. Maybe
we`ll have a new Muslim ban by next week, maybe.

Here`s the thing, this is one of the only things they`ve actually tried to
do in terms of policy. Notice how it`s fallen apart, not gone anywhere?

Here`s the thing, they really do have a problem here and I can show you
part of that problem. We have just obtained this document, which is
produced by an intelligence agency. The intelligence agency that`s based
inside the Department of Homeland Security. Its office is called the
Office of Intelligence and Analysis.

And if that name is familiar to you, it`s because that agency, the Office
of Intelligence and Analysis at Homeland Security, they were in the news a
few days ago because the “A.P.” a few days ago obtained a report from this
same agency that was apparently spiked by the Trump administration. It was
prepared by career intelligence professionals but then they spiked it, they
didn`t want to let it out.

And that document leaked to the “A.P.”, it was a fairly devastating blow
against the Muslim ban. This was the title of the document: Citizenship
likely an unreliable indicator of terrorist threat to the United States.
Quote, “Department of Homeland Security Office of Intelligence and Analysis
assesses that country of citizenship is unlikely to be a reliable indicator
of potential terrorist activity.”

Right. So, if you`re really going after terrorism, you`re really trying to
spot and stop terrorists, just banning citizens of some list of countries
does not make any sense in national security terms. So, that was a few
days ago. That was leaked. That document from the intelligence agency
inside Homeland Security, that was leaked to the “Associated Press” last
week.

Yes, the Trump administration may not want this to see the light of day but
we`re going to leak it. Intelligence community assessment that says
banning people based on their nation of origin is national security
nonsense.

So, we had that before tonight. Now tonight, we`ve got this. This is
another leaked report. I`m not going to tell you how we got it, but the
Department of Homeland Security has tonight confirmed to us that this is
authentic, that this is real. You can see at the top of it here, I think
we have it on screen. Yes.

It`s labeled, “Unclassified, for official use only”. It`s dated yesterday,
March 1st, 2017.

This is a report that`s from the Homeland Security Office of Intelligence
and Analysis. Again, that`s the U.S. intelligence agency that`s based
inside Homeland Security, and interestingly, it says it was prepared by
that intelligence office. But look at that small print there, “Prepared by
the Office of Intelligence Analysis”, that`s the Homeland Security Agency.
But it was coordinated with Customs and Border Protection, State
Department, Immigration and Customs Enforcement, ICE, National
Counterterrorism Center, and the U.S. Citizenship and Immigration Services.
So, all those people coordinated in creating this report.

And now, here`s the title, “Most foreign-born U.S.-based violent extremists
radicalized after entering homeland.” Oh. What`s the key finding here?
What`s the key judgment here?

This is it. Quote, “We assess that most foreign-born U.S.-based violent
extremists likely radicalized several years after their entry into the
United States.” And why is that important? Say it again? “We assess that
most foreign-born U.S.-based violent extremists likely radicalized several
years after their entry into the United States, limiting the ability of
screening and vetting officials to prevent their entry because of national
security concerns.”

Oh, right, so much for extreme vetting.

Right. The whole justification, the whole explanation from this
administration for the Muslim ban was to stop people coming into this
country, at least for a while, right? At least for a while, temporary
travel ban so we can get the extreme vetting. So, Trump could set up his
extreme vetting plan, right?

When he announced it in the first place, that`s the “until we can figure
out what is going on” part of how he announced.

(BEGIN VIDEO CLIP)

DONALD TRUMP, THEN-PRESIDENTIAL CANDIDATE: Donald J. Trump is calling far
total and complete shutdown of Muslims entering the United States until our
country`s representative representatives can figure out what the hell is
going on.

(CHEERS AND APPLAUSE)

We have no choice. We have no choice. We have no choice.

(END VIDEO CLIP)

MADDOW: You already said that.

“Until our country`s representative cans figure out what the hell is going
on” a total and complete shutdown of Muslims entering the United States.

That was the initial announcement of this, right? Right? Until we can get
extreme vetting in place, we have to shut down Muslim immigration. Until
we can get that extreme vetting in place, otherwise, we can`t be safe from
the Muslims.

Well, this intelligence community document that we have obtained tonight,
now, this shows us two things. It shows us it`s the conclusion of American
intelligence in consultation with the Border Patrol and ICE and the
National Counterterrorism Center and the State Department. It tells us
that the national security justification for the whole ban, the setting up
of extreme vetting is bullpucky in national security terms. There`s
nothing they can set up at the border to tell you years down the road who
might become a completely different and radical and violent person years
from now, because they haven`t been radicalized yet.

So, this tells us substantively, in terms of the substance of the matter
that the intelligence community thinks the Muslim ban is nuts. The
intelligence community on national security ground thinks the Muslim ban
and whole justification for it is cuckoo. Because we have to be realistic
about the politics here, though, it`s also worth talking about why we got
this. I`m like – I`m not like Sherlock Holmes. I`m not some incredible
sleuth that`s like hacked this somewhere. Somebody wanted me to have this.

And that also tells us something. That tells us that people inside the
government, people who have access to intelligence documents like this,
they want this to be known. They want it on TV. They want this out, so no
matter what the administration says about what they`re doing and why, we
can see what the career intelligence people actually think about what this
government is doing before presumably they submarine this stuff.

This administration – I know there`s a lot going on and we`re going to be
talking about the Sessions recusal and we`re going to be talking about the
investigation in Russia. We`re going to be talking about some other stuff
going on. I know there`s a lot going on.

But in terms of what this administration is actually doing, one of the only
things they`ve tried to do is this Muslim ban and it`s a disaster. Even if
you agree with it, it`s a disaster. And when the court shut it down, they
said they would issue a new one and they`ve been pushing that back and back
and back and back and back.

And I look at this and you know what I think? I think the Muslim ban is
dead.

Joining us now, Andrea Mitchell, NBC News chief foreign affairs
correspondent and the host of “ANDREA MITCHELL REPORTS.”

Andrea, it`s great to see you. Thank you for being here with us tonight.

ANDREA MITCHELL, NBC NEWS CHIEF FOREIGN AFFAIRS CORRESPONDENT: Thank you.
This is an education. You`ve shared with this with me and I`m reading into
it and I`m learning a lot at what`s really going on.

MADDOW: Department of Homeland Security authenticated this for us.

MITCHELL: Right.

MADDOW: They told us that it`s a real document. It`s obviously not a
complete document nor was it apparently prepared for public consumption.
What– reading through it, what`s your take?

MITCHELL: Well, the policy implications are fascinating because their
conclusions here are, first of all, that people do not enter here
radicalized. Second of all, that parents do not come and are not
radicalized when they arrive nor do they become radicalized.

So, who becomes radicalized? The children become radicalized some 16 years
later and how can we intervene?

Well, they have proposals. There are policy implications for this, that
working with religious groups, working with community groups, working with
adolescents could prevent the eventual radicalization of those who do
become violent in years later. But they do not learn this from their
parents and they do not arrive this way. Nor do their parents.

That has important implications. It means as you`ve pointed out that,
quote, “extreme vetting” whatever that is, doesn`t work, isn`t necessary.
And second of all, that there are things we can do in communities.

And I`m thinking back to – you did an exit interview with Jeh Johnson.
Remember the speech he gave, the first speech by a homeland security
secretary in Chicago to the Muslim community gathering?

That is the approach, that`s the approach that Bill Bratton would tell you
in New York. Those are things that work, not some fictional extreme
vetting at the borders.

MADDOW: Right. And that kind of a constructive policy to say we need to
address homeland radicalization. We need to address the fact that people
who are not radical become radical living in this country through
dislocation, through feeling abandoned, through feeling isolated. And
those are things we can address, provided we can work particularly with
Muslim communities, immigrant communities, all sorts of different kinds of
religious communities.

I mean, that`s – you know, not just anathema, that`s heresy. That`s
almost swearing from the point of view of the Trump administration, and the
people who leaked this to us, the people who produced it and the people
who`ve now made it public by giving it to us have to know that that`s
absolutely contrary to where the administration wants to take its national
security policies.

MITCHELL: I mean, it`s the same psychology that – Colin Powell was giving
a speech at LIU tonight, and was speaking against the cuts that are
proposed for the State Department, for diplomacy, for development, for
USAID. And those have been derided in the past by General Mattis and are
now being criticized roundly by others in the military.

I tried to ask Rex Tillerson about it at a photo opportunity today and he
was silent. He hasn`t answered a single question at any photo opportunity
since he was sworn in. He gave an impressive speech the day he arrived,
but we`ve heard nothing from the State Department pushing back against
these draconian cuts in foreign aid and in security, intelligence
development, partnerships that we have with foreign intelligence agencies
overseas. So, it`s all part of the same attitude towards soft power and
towards our borders and towards Muslim refugees and other immigrants.

MADDOW: Andrea Mitchell, NBC News chief foreign affairs correspondents,
host of “ANDREA MITCHELL REPORT” – thank you for looking this over for us
and for being here on short notice.

MITCHELL: Thank you.

MADDOW: Appreciate it.

You know, what Andrea is saying there about not hearing from the State
Department, and – I mean, one of the remarkable things about this is
basically what we`ve heard from the State Department since Trump has been
president is the dissent cable signed by more than a thousand diplomats
objecting to policies of the new administration, especially the Muslim ban.
and the State Department is one of the named coordinating agencies behind
this intelligence report which we`re reporting exclusively tonight, blowing
out of the water national security justification for that ban in the first
place. They may not be saying anything out loud, but their leaks and their
dissenters are speaking volumes.

We`ll be right back.

(COMMERCIAL BREAK)

MADDOW: When Attorney General nominee Jeff Sessions told senators in his
confirmation hearing, quote, “I did not have communication with the
Russians”, that moment didn`t seem notable at the time, at least not to
reporters or the public at large. But you know what? That moment would
have popped, it should have popped, it should have resulted in blaring red
sirens at the FBI because at that point, the FBI was in a position to know
whether or not that statement he made was true because while Senator Jeff
Sessions was going through his confirmation hearing to be attorney general,
the FBI was reportedly investigating his – his contacts with Russian
officials.

According to the “Wall Street Journal,” the FBI had been investigating
Sessions` contacts with Russian officials for months, at least since mid-
November when he was nominated to be A.G.

One person familiar with the investigation telling the “Wall Street
Journal” today that Jeff Sessions` contact with Russian officials while the
FBI was supposed to be investigating Trump campaign contacts with Russian
officials, that fact left the agency, quote, “wringing its hands” about how
to proceed.

I don`t know whether or not they wrung their hands, but the way they did
decide to proceed was to not peep to Congress. “The Journal” reports this,
quote, “It`s unclear whether anyone in Congress knew about the
investigation into Jeff Sessions` Russian interactions before Sessions was
confirmed.”

Just think about that for a second. I mean, whether or not you choose to
think about this in the context of like Hillary Clinton`s e-mails and what
the FBI chose to disclose to Congress and the public around that
investigation, even just setting that aside. Congress, the Senate was
voting on this man to be the top law enforcement official in the country.
The FBI, because of its investigation into him knew he had contacts with
the Russian government. And that he had not disclosed them, and when he
was asked directly about them in his confirmation hearing, he apparently
just bluntly lied to the Senate about it under oath.

The FBI in a position to know all of that and they said bupkis? They
didn`t peep to Congress? Apparently, the agency didn`t think it necessary
to inform the Senate about these salient details about who it was voting
on?

I mean, we have seen particularly among Democrats frustration with how the
FBI has been handling this matter. But more than frustration, is there
something seriously wrong here?

Congressman Adam Schiff, the ranking member of the House Intelligence
Committee, ranking Democrat in House Intelligence, he told me two days ago
he had yet to be assured of the FBI`s full cooperation in the congressional
inquiry into Trump`s ties with Russia.

“New York Times” reported last night that U.S. allies, including the
British and Dutch, they have provided information on meetings between Trump
associates and Russian officials. They`ve provided that information to the
U.S. government. Maybe if we want to know anything, we should ask the
Dutch or the British about these things, but not the FBI?

Today, FBI Director James Comey was on Capitol Hill. He met behind closed
doors for over three hours with members of the House Intelligence
Committee.

Speaking with reporters immediately after, after that, Congressman Schiff
sounded very, very unconvinced. He`s now accusing the director of the FBI,
Director Comey, of not cooperating, of not being forthcoming with the
intelligence committee. He`s warning of the consequences of what he sees
as continued stonewalling by the FBI.

(BEGIN VIDEO CLIP)

REP. ADAM SCHIFF (D-CA), INTELLIGENCE CMTE RANKING MEMBER: In order for us
to do our investigation in a thorough and credible way, we`re going to need
the FBI to fully cooperate. At this point, the director was not willing to
do that. He made it very clear there were certain questions that we were
asking that he would answer and others he would not.

Again, I hope that when we next meet with the director, he will have a
different point of view. I hope the department will, because we`re going
to need that information and we`re better off getting that through the
voluntary cooperation of the FBI than having to contemplate whether we need
to subpoena the FBI.

(END VIDEO CLIP)

MADDOW: “Contemplating whether we need to subpoena the FBI.” The FBI is
blocking the congressional investigation into Trump and Russia? The FBI is
not cooperating with the congressional investigation into Trump and Russia?

What Congressman Schiff is saying there is that lawmakers – not just need
but expect the FBI to cooperate. He says he hopes the FBI director will be
more willing to answer questions the next time they meet.

Why is he not answering those questions? Why is the FBI stopping this
investigation from moving forward? Was it at the request of Attorney
General Jeff Sessions? Will that change now that Jeff Sessions is out of
the way, or is this something the FBI is doing of their own accord? If so,
what`s the remedy to that?

Congressman Adam Schiff joins us next.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

REPORTER: You would say you only know a fraction of what the FBI knows
here?

SCHIFF: Oh, I would say at this point we know less than a fraction of what
the FBI knows.

(END VIDEO CLIP)

MADDOW: That`s Congressman Adam Schiff today speaking moments after a long
meeting with FBI Director James Comey.

Joining us is Congressman Schiff. He`s the ranking Democrat on the House
Intelligence Committee.

Thank you for being here tonight, sir.

SCHIFF: It`s a pleasure. Thank you.

MADDOW: So, I don`t know enough about how intelligence committees work to
know how much the FBI should be cooperating with you. Obviously, the FBI
is within the Department of Justice. They are reportedly doing their own
investigations into contacts between Trump folks and Russia. Obviously,
the House and Senate Intelligence Committees are doing a legislative branch
investigation as well.

How much help do you expect to be getting from the FBI?

SCHIFF: Well, there are really two ways the FBI is supposed to be
communicating with us on this. The first is in the Gang of Eight, the
select members of House and Senate that work on these issues, and we`re
supposed to get a quarterly counterintelligence briefing where the FBI sits
down with us and says these are the cases we`re looking at, these are the
investigations we`re doing, you need to know about these, these are of
national significance.

That hasn`t happened, hasn`t happened in the past, isn`t happening now.
Not on I think what the most significant potential counterintelligence
investigation of the modern era.

More than that, when the intelligence committee is doing an investigation
and here on a bipartisan basis, we agreed to do this investigation, we have
a detailed scope of investigation now that`s signed by the chairman and I.

We bring the director in, we`re doing our work, we`re asking pertinent
questions about that investigation and the answers we got today from the
director were, “I won`t answer that, I won`t answer that, I won`t answer
that.” And that`s –

MADDOW: And to be clear, this is speaking in a closed setting. This is
not like there are reporters there and they don`t want this to leak. This
is in – this is behind closed doors?

SCHIFF: Oh, absolutely. Closed session and a hearing on the subject of
the investigation.

MADDOW: What`s the basis for saying no to you?

SCHIFF: Well, I don`t want to characterize the director`s response. But I
did endeavor to find out is this his position. Is this a position dictated
by the Department of Justice? And I have to say I couldn`t clearly
establish what part of this was the direct decision, what part of this is
operating on the department`s decision or its interpretation of
department`s decision. It wasn`t very clear.

But what was clear is, we can`t do our job if that`s going to be the FBI`s
position. We can`t become the FBI. We need to know what have they
investigated? What leads have they chased down? What have they not chased
down? What more has to be done? How adequate is what they`ve done
already?

If we`re going to tell the American people we`ve done a thorough incredible
job, we need that information. More than that, if there`s a compromise
somewhere, we need to know so we can protect the country.

We aren`t prosecutors. We`re not trying to be. But our job is to
determine, is our administration or anyone else compromised in a way that
threatens our national security?

We know Russia is trying to undermine our democracy. We know they`re
trying to undermine our allies in Europe right now, and we need to know
exactly what they`ve done and we need to know the FBI`s cooperation to do
that. Today, the director wasn`t willing to give us that full cooperation
and that has to change.

MADDOW: And the remedy to that is to subpoena the FBI, to try to compel
them to give more information than they have so far been willing to give?

SCHIFF: Well, that is one remedy. You know, I hope that the director will
go back for further consultations with the department and the next time he
comes before us – which I hope will be very soon – he comes back with a
different attitude or a different policy. But if this persists, I don`t
really see what option we have left but to subpoena the director.

It`s not that there was a claim of executive privilege or anything like
that. There wasn`t. So, I think this is a discretionary decision either
on his part or the department`s part. And that is, I think, a poor
exercise of discretion and one that just cannot persist.

MADDOW: May I ask – I want to ask your advice on – your take on
something and if you feel like it`s outside your scope, I will respect it.
But I mentioned there, that in the last segment, that reportedly, according
to “The Wall Street Journal,” Jeff Sessions, his particular contacts with
the Russian government were under investigation by the FBI, at least for
the last few months, which would mean if that`s true, that the FBI was
aware he had had undisclosed contacts with the Russian government and that
he had not told the Senate about them when they were asking him direct
questions about that during his confirmation hearing.

Apparently, the FBI knowing that decided not to disclose it to the Senate
which then voted on him to become the top law enforcement official in the
United States.

Would it have been appropriate for the FBI to advise the Senate that they
knew about those contacts that he wasn`t disclosing, that they knew that he
had lied to them?

SCHIFF: Well, here`s the issue and I can`t comment on what particular
counterintelligence investigation may or may not have been going on. But
here`s the issue for the FBI: if they`re doing an investigation anyone that
may join an administration or not, it – let`s say a criminal investigation
or counterintelligence investigation, they – their priority is often
developing the facts to prosecute someone. And their concern sometimes
that they will jeopardize the prosecution of someone if they share
information with Congress, with the administration or anybody else.

But our priority in Congress, frankly, is the protection of the country –

MADDOW: Yes.

SCHIFF: – is our national security interests. That has to trump in a
same way when we capture terrorism suspects, the information we need to
gather from them takes priority, intelligence we need to gather from them
takes priority over their prosecution. Similarly here, the priority for
the FBI has to be protection of country first and prosecution second.

MADDOW: Yes. And after the Clinton disclosures during the campaign,
that`s all the more stark.

Congressman Adam Schiff, ranking Democrat on House Intelligence – thank
you, sir.

SCHIFF: Thank you.

MADDOW: Thank you.

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

(COMMERCIAL BREAK)

MADDOW: Behold. You own this. This is a U.S. Navy aircraft carrier. In
fact, it is the single most hyped aircraft carrier in the world. It can
travel at speeds of more than 30 knots, which is really fast for something
that big. It can operate for two decades without having to stop and
refuel. It has electromagnetic launch systems for launching jets and
drones.

It`s kind of a beast. At least it will be if it ever actually gets
finished. In addition to being the most hyped warship in the world, the
USS Gerald R. Ford is also known as the most expensive ship in the world
and the most ostentatiously unfinished one.

Construction on this ship began in 2005 – 2005, 12 years on and nearly $13
billion later, it`s still not ready. Senator John McCain has called it,
quote, “One of the most spectacular acquisition debacles in recent memory.”

In 2013, the Government Accountability Office called – just slammed it,
citing, quote, “inefficient out-of-sequence work driven largely by material
shortfalls, engineering challenges and delays, developing and installing
critical technology systems.”

The USS Gerald R. Ford is neat, but it is broadly considered to be a case
study for the pitfalls of massive mismanaged military spending. And so,
what better place for the president to announce his huge new increase in
the military budget than on board the USS Gerald R. Ford.

The new president wearing a hat, calling today for one of the largest
defense spending increases in history on board a ship that serves as the
textbook picture next to the entry about the failures and embarrassment
associated with unfocused massive military spending, right? On any other
day, this would probably be the big story of the day.

But, today, of course, the attorney general recused himself from
investigations into the president`s contacts with Russia during the
campaign and with the possibility of a special prosecutor taking over the
investigation, there may be a more pressing historical reference at hand
when it comes to the USS Gerald R. Ford.

President Ford was one of many modern presidents to have a special
prosecutor assigned to investigate him. In his case, allegations of him
misusing campaign contributions. It was 1976, he was running for
reelection. Election was actually only a few weeks away. These
allegations arose, the attorney general and deputy attorney general recused
themselves from the case. They passed it to a special prosecutor who has
left over from the Watergate scandal.

That special prosecutor looked into it and decided there`s nothing here.
Dropped the case. Cleared Ford of any wrongdoing and did it without much
fanfare. He was praised by the Ford administration who he was
investigating for conducting the investigation in the most discreet fashion
possible. And then, President Ford went on to lose the election anyway.

But as the current administration begins to read the some new ground here,
it turns out there is a lot of precedent, way more precedent than you`d
expect for what`s happening right now and what is about to happen next.
And Michael Beschloss is here with us on that next.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

ERIC HOLDER, FORMER U.S. ATTORNEY GENERAL: Oh, I think that`s the right
decision given his position in the campaign and the need for the American
people to think that the investigation I think has to take place about
possible connections between the Trump campaign and people in Russia, has
to be has to be done impartially, has to be done fairly, has to be done
thoroughly. I think his decision to recuse himself was appropriate.

(END VIDEO CLIP)

MADDOW: Obama Attorney General Eric Holder today talking about the
decision about the current attorney general that he will recuse himself
from investigations involving ties between Russia and the Trump campaign of
which Attorney General Sessions was a big part.

Joining us now is NBC News presidential historian Michael Beschloss.

Michael, it`s nice to have you with us tonight. Thanks for being here.

MICHAEL BESCHLOSS, NBC NEWS PRESIDENTIAL HISTORIAN: Thank you, Rachel.

MADDOW: So, looking at this in the historical context, did the attorney
general have any choice at this point but to recuse himself? I`m struck by
the fact that even just in the very recent, very tiny history of this
existing administration, we`ve got the national security adviser, Michael
Flynn, being fired for denying and lying about his contacts with Russia,
Attorney General Jeff Sessions just recusing?

BESCHLOSS: He should have done it a long time ago. It shouldn`t have
taken the controversy today to take him do that because, you know, it`s
just logic. How could he possibly be expected to lead an investigation
into his boss who can fire him?

MADDOW: In terms of what happens next here, lots of presidents, more than
you would think, have had special prosecutors brought on at some point or
another because for whatever reason, the attorney general, the deputy
attorney general, had to take themselves out of the mix, a special
investigator, a special prosecutor is brought in.

Is it always an earth-shattering thing, is it always, you know, the end of
a presidency or potential end of a presidency when something like that
happens, or is it a fairly run of the mill procedure?

BESCHLOSS: No, it was – you know, usually or oftentimes, it`s been sort
of like you mentioned with Gerald Ford, a special prosecutor was appointed,
cleared him of the charge. Ford lost the election of `76 but pretty came
close. One of the reasons was because he didn`t have to labor under that
charge.

There was a law that was passed in 1978 that said that if there`s a serious
charge of a federal offense against a president or someone who is a high
official, the attorney general goes to a three-judge panel, they appoint a
special prosecutor and, you know, essentially the person charged has the
chance to clear his name. All the way from the time of Richard Nixon, all
the way through Bill Clinton, there were special prosecutors appointed
obviously that dealt with things like Iran Contra and the Monica Lewinsky
episode under Bill Clinton, but also things that were smaller. The act
generally worked but was allowed to expire in 1999. So, it hasn`t happened
seriously since then.

MADDOW: And because that was allowed to expire, the process now of picking
a special prosecutor, if that`s going to happen, obviously maybe the deputy
attorney general will take this over. We only have an acting one right
now. One has been nominated to be the new deputy attorney general.

But if they wanted to bring in a special prosecutor, they`d essentially
just pick somebody?

BESCHLOSS: They would and that`s why the old process was so much better.

MADDOW: Yes.

BESCHLOSS: The Trump administration, especially the last few days, has
been very hands on in choosing deputies in these departments that are very
loyal to them. There`s a very good chance that with Attorney General
Sessions recusing himself goes to a deputy, how are we sure that that
deputy is also going to be independent of the White House?

MADDOW: Michael Beschloss, NBC News presidential historian, raising very
difficult questions tonight. Michael, thank you for being here.

BESCHLOSS: We will see. My pleasure.

MADDOW: All right. At the top of the show, we had some breaking news
tonight, some exclusive news out of the Department of Homeland security. A
leaked report that we received that maybe a stake in the heart of the
Muslim ban. We`ve got reaction from one of the people smackdab in the
center of that fight coming up.

Stay with us.

(COMMERCIAL BREAK)

MADDOW: So, we started the show tonight with some exclusive breaking news.
This intelligence document we obtained exclusively. It`s from the
intelligence office at Homeland Security. It`s titled, “Most foreign-born
U.S.-based violent extremists likely radicalized years after their entering
homeland. We assess that most foreign-born U.S.-based violent extremists
likely radicalized years after their entry into the United States, thus
limiting the ability of screening and vetting officials to prevent their
entry because of national security concerns.”

So much for extreme vetting, right? Which was the justification for the
new president`s travel ban and Muslim ban. The White House keeps pushing
back the expected time when the president will sign a new version of that
ban. Maybe that`s because the rationale for the ban is falling apart, even
from inside their own government.

Joining us now is Lee Gelernt. He`s the deputy director of the Immigrants
Rights Project at the ACLU.

Mr. Gelernt, thanks for being here.

LEE GELERNT, ACLU CIVIL RIGHTS ATTORNEY: Thanks for having me.

MADDOW: So, you got a chance to look at this a little bit.

GELERNT: I have.

MADDOW: I know you haven`t had a lot of time with it.

Are you surprised to hear – to hear this argument from career intelligence
officials?

GELERNT: You know, I am and I`m not. We went into court and we had
declarations from former intelligence people, high-ranking in both
administrations saying, look, this is not going to make us safer. In fact,
it may make us less safe.

We went into court with that and the courts said, that`s interesting all
these people are saying it, and turned to the government and said, where is
your evidence? The government said, we don`t have any evidence.

But now it turns out, not only do they not have any evidence, but their own
intelligence officials are saying, no, this ban won`t work.

So, it`s like both sides are reaching the same conclusion yet I suspect
they are going to go in and litigate and say, we need this ban for national
security reasons.

MADDOW: I know you`re not a judge on any of your own cases.

GELERNT: Right.

MADDOW: But since Department of Homeland Security authenticated this and
told us this is a real report tonight, does that mean that this may end up
being evidence? That this may end up being –

GELERNT: Oh, I think you`ll absolutely see this being put into court. And
I suspect the administration will try and counter it and there was a time
when they`re saying, well, this is only one agency or one part of one
agency. As you said earlier in your show, no, it has other agencies on it.
I suspect you will absolutely see this in court.

MADDOW: In terms of the status of the Muslim ban right now, they told the
ninth circuit, we`re rescinding it. We`re going to issue it any day now.
Any day now, any day now, any day now. And they keep putting that off.

Obviously, they`re impaired by trying to do this because the basic
constitutionality of this idea is a great question.

GELERNT: Right, right.

MADDOW: Do we expect that we will ever see a replacement one from this?

GELERNT: You know, I really don`t know. But what I do know is the longer
their wait, it`s harder for them to come in and to say to court, we
desperately need you to let this ban going play because we`re urgently
needing for national security reasons, we need this ban.

Well, every day they delay, it puts the lie to this ban is critical for our
national security. And in fact, this week, they delayed for what seemed
like political reasons. So, if they really genuinely believe the ban was
necessary for national security reasons, you would have thought you have
seen the revised ban much sooner.

MADDOW: And I`m not a lawyer, but my reading of the way these arguments
have gone so far, as part of the reason that they`ve told the courts, that
the courts have to defer to the government on this, is that courts owe
deference to the executive, specifically on national security matters and
especially on national security urgent matters. That`s when the court is
at its weakest in its ability to stop the president from doing something.

GELERNT: Right. Right.

MADDOW: So, every time they sort of give lie to that, it hurts their
ability to stand this up.

GELERNT: Exactly. The longer the delay, but also, now, with their own
officials saying – they want to ask for deference to their own officials
but yet now, their own intelligence officials are saying, maybe the ban is
not really what we should be doing.

MADDOW: Yes, and having to leak it to the press in order to get it out
there.

GELERNT: Right.

MADDOW: Lee Gelernt, deputy director of the Immigrants Rights Project at
the ACLU – Mr. Gelernt, thank you. Appreciate you coming in on short
notice.

GELERNT: Thank you so much. Thanks for having me.

MADDOW: All right. That does it for us tonight. We will see you again
tomorrow.

Now, it`s time for “THE LAST WORD WITH LAWRENCE O`DONNELL”.

Good evening, Lawrence.


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