Show: THE RACHEL MADDOW SHOW Date: January 16, 2018
CHRIS HAYES, MSNBC HOST, "ALL IN": Before we go, a few other people, the few people I need to thank, to both Joy Reid and Ari Melber, I cannot thank you enough, not only for taking such great care of this show in my absence but for giving me the time to spend with my new daughter Anya. That`s her. The last two weeks have been total bliss, from helping Ryan with her homework at the dinner table, to watching "Star Wars" with David who insists I now speak to him only in a bad Darth Vader voice, to seeing them embrace their new sister.
The time has been invaluable with my family and to Kate, who is the most remarkable mother, spouse and human being I know and could ever know. Thank you.
That is "ALL IN" for this evening.
THE RACHEL MADDOW SHOW starts right now.
Good evening, Rachel.
RACHEL MADDOW, MSNBC HOST: Yay!
Chris, we missed you terribly, but seeing those pictures of Anya and knowing you`ve had this time --
HAYES: It`s amazing.
MADDOW: -- your family is like over subscribed on adorableness.
HAYES: They are great.
MADDOW: And you`re going to have to pay some of that back along the way. You`re going to have to spread some of that around. Congratulations to you.
HAYES: Thanks a lot. Good to be back.
MADDOW: And thanks to you at home for being with us tonight as well. There`s lots going on in the news tonight. I`m very glad that you`re here.
We`re going to try to get through all of it. I have a little bit of a feeling this is going to be one of those ten-pound shows in a five-pound bag. But we will try to get through everything that we can. There`s lots going on.
There`s breaking news just this evening that two U.S. Navy commanders are being charged with negligent homicide in connection with those two terrible crashes of Navy destroyers that happened this past summer in June and August. Those crashes involving merchant ships and the USS Fitzgerald and the USS John McCain killed 17 U.S. Navy sailors between them. The Fitzgerald hit a container ship off the coast of Japan in June than the McCain had a chemical tanker between Malaysia and Indonesia in August, those were both crashes where these Navy destroyers hit ships that were more than three times larger than themselves.
Those crashes have already ended the career of the chief of the Navy`s 7th Fleet. Defense News reports tonight that the top surface warfare officer for the entire Navy is also expected to lose his job over those collisions. But tonight this dramatic development, Commander Bryce Benson and Commander Jesse Sanchez will reportedly face a long list of serious charges, including dereliction of duty, hazarding a vessel and homicide, negligent homicide.
There`s also some dramatic breaking news tonight concerning the Central Intelligence Agency. Back in May, "The New York Times" had some dramatic and even a little bit scary reporting about how the Chinese government somehow blew open the CIA`s whole spying operation inside China. The CIA, of course, spies on countries all over the world, including China`s -- including China, all countries with robust intelligence operations do that, whether you like it or not.
But somehow, starting in 2010, China basically started figuring out everybody who was part of America`s spy network in China, everybody who was secretly informing for the U.S. or working for U.S. intelligence inside China, in lots of different capacities. The Chinese government started wrapping up that network, arresting these people, imprisoning them in at least a dozen cases. Those U.S. assets or agents or informants inside China were not just unmasked by the Chinese government, they were actually killed, they were executed -- at least a dozen people.
That penetration of America`s spy network in China was considered to be one of the worst espionage failures in years and it started what they call a mole hunt inside the CIA. Was there somebody inside the CIA who had betrayed to China the names of secret informants and agents who were operating covertly on our behalf in that country?
Well, tonight is the news that a lot of people have been waiting for in this story. It is a very dramatic development. Quote, a former CIA officer suspected of helping China identified the agency`s informants in that country has been arrested. His name is Jerry Chun Shing Lee; eastern district of Virginia is where he`s been charged.
They`ve unsealed the case against him. He apparently worked at the CIA until 2007. He has since been living in Hong Kong. He appears to have made what is now -- what now can be seen as a bad decision to come back to the United States because he was arrested at JFK airport and has now been charged.
Again, this is a case that is believed to be connected to more than a dozen people who were working as informants for the CIA in China being killed. So, that is a very dramatic development in the spy world. We`ve got sort of sketchy reporting tonight since this indictment was unsealed. I expect that this will be fleshed out in coming day, so keep an eye on that story.
Today in Washington, D.C., the president`s campaign manager and his deputy campaign manager were both back in court for a status conference. Both Paul Manafort and Rick Gates are, of course, facing multiple felony charges that were brought by special counsel Robert Mueller, who`s investigating the Russia intervention in our election and the question of whether or not the Trump campaign was in on it.
At their status conference this morning in court in Washington, D.C., Mr. Gates, Rick Gates was released from house arrest by the judge overseeing both of their cases. That said, Paul Manafort was not released from house arrest. Awkwardly, Paul Manafort lawyers asked if there was any way he could be given special permission by the judge to leave his home, to go to a nearby gym to work out everyday.
The judge hearing that request from Paul Manafort`s lawyers said no, told Paul Manafort`s lawyers that although she had confined him to his house, she had not confined him to his couch. I kid you not. That`s what she said.
Presumably, this means we will soon see a Republican fundraiser in Washington where they`re trying to crowd fund a NordicTrack for Paul Manafort`s Palm Beach condo.
Speaking of people who ran the Donald Trump for president campaign, the man who ran the campaign before Paul Manafort was Corey Lewandowski. We learned today that Mr. Lewandowski too has now gotten himself a Russia lawyer. For the first time, he has secured legal representation in the Russia investigation. This comes in vent in advance of Mr. Lewandowski`s expected testimony to the House Intelligence Committee this week.
Corey Lewandowski`s lawyer, I should tell you, is probably most famous for having represented Ruth Madoff, the wife of Bernie Madoff in that famous multi-billion dollar Ponzi scheme.
But to tell you what kind of a crazy day this has been in the news, consider the overall fact that there were three people who ran the Donald Trump for president campaign, right, who had the top job on that campaign. The first one was Corey Lewandowski who has just had to get a Russia lawyer. The second one was Paul Manafort, who is under indictment, who was told today by a judge that he will not be released from house arrest. And the third person who ran the Trump campaign after Lewandowski and Manafort both got fired, the third one was, of course, Steve Bannon, and, boy, has he had an unusual day today.
You know, if you get called for jury duty, usually that means you`re being called up to potentially sit on a jury for a trial. And in terms of your commitment on what you have to tell your boss, basically, if you get picked for the jury, however long that trial lasts, that`s how long you`ll be on jury duty and away from work. When the trial ends, you`ll get thanked by the judge, if it`s a hot enough case, maybe you`ll get to sell your story to some tabloid, right? But you`re done after the trials done. That`s regular jury duty for a trial jury.
The other name the legal name for a trial jury is a petit jury, and that is to legally differentiate it. I think that`s how you say it, petit jury, that`s how you`d say it if it was like on a French restaurant menu and I assume. It looks like petit, like petit in French, I don`t know.
Anyway, but I think the idea is to distinguish it from a grand jury, so small jury on the trial, grand jury, big jury not in a trial court. You can get summoned for jury duty to be part of a trial jury, you can also get summoned for jury duty to be part of a grand jury, and that really is a different thing.
Grand juries don`t decide at a trial whether a person who has been charged with a crime is guilty or innocent of that crime. Grand juries decide if a person is going to have charges brought against them in the first place. So, grand juries work with the prosecutor on whether or not somebody`s going to be charged. The prosecutor brings a grand jury evidence. They have people testify to the grand jury and then based on the grand jurors` evaluation of the facts and the evidence as put forward by the prosecutor, the grand jury decides if somebody`s got to get indicted.
And I think there are little exceptions to that. There are ways that a federal grand jury operates differently than a local grand jury and stuff, but that`s the basic truth of it. If you get called to be on a grand jury, what you`re being asked to do, the kind of commitment you`re being asked to make is very different than if you`re on a trial jury. I mean, if you end up on a grand jury, your boss may be happier or maybe even more annoyed than if you`re on a trial jury depending on what kind of job you do and how much your boss likes you.
I mean, on a trial jury you do have a specific but really intense commitment. If you`re in a trial jury, you need to be there in the courtroom for the whole trial soup-to-nuts, right, minute one, hour one day one until the trial is all the way over. You need to be there for every second. But then after the trial ends, you`re sprung.
On a grand jury, you don`t need to be there every day. It`s not as intense a commitment, but you do serve for months and months at a time. You can serve on a grand jury for up to 18 months. But it`s nowhere near everyday. As a general matter, you have to be there say a few days a month. So, depending on your relationship with your boss and what kind of job you have, grand jury duty versus trial jury duty, it`s just a different kind of commitment.
Trial juries have between six and twelve people on them, grand juries have between 16 and 23 people on them. I think the way it works is they`re supposed to have 23 on a grand jury, and 16 of them need to be there in any -- at any one time in order to have a quorum to make a decision.
So, if you`re on a grand jury, one of the first things they will impress upon you is that all of the proceedings before our grand jury are secret, and that is a serious, serious thing. Everything that happens within the grand jury room is a secret.
I`ve never been on a grand jury, try showing up for jury duty some day and telling them you work in cable news. See how that goes over. But as I understand it, if you are on the grand jury, prosecutors basically have the responsibility of explaining the law to you as it pertains to this potential case that you`re considering. But then once you`ve had those finer points of the law explained to you by the prosecutors, as a grand juror, you kind of get leeway to make up your own mind about whether there should be an indictment or not.
I mean, within reason, but you get a lot more room to maneuver than you would if you were just a jury sitting on a trial. On the grand jury, for example, you as a grand jury, you get to come up with questions for the witnesses that the prosecutors bring before you. You and your fellow members of the grand jury, you`re the ones who get to request specific documents that you want to see, specific evidence that you want brought before you.
If you`re sitting on a grand jury and you get a witness in to testify before you, that witness doesn`t get to have a lawyer with him or her in the room. They can have a lawyer outside the room where they can run out and consult with, but when that witness is sitting there in front of you the grand juror answering your questions, and they have to answer your questions, that witness is sitting there alone, facing you, random member of the public who has been put on this grand jury. There`s no judge in the room. They`re talking to you, right?
I mean, if you`re not a lawyer -- not a lawyer -- I`ve always -- this is always been -- this is a -- this is a fascinating and somewhat mysterious part of our justice system, and it also seems kind of intimidating. I mean, for those of us who aren`t lawyers, we`ve all at least seen what a regular trial jury looks like and how they operate in a million TV shows and movies, right? We have a sense of how that works in the trial.
Also, if you`re on a regular trial jury, you don`t say anything in the courtroom. Nobody`s expecting you to ask questions of the witnesses or request evidence that you`d like to see. On a grand jury though, you are involved in this process for months. You work with prosecutors very closely every day. You have a lot of responsibilities in terms of how a case is handled.
I mean -- it`s -- if you`re thinking about the various types of jury duty you might do as a civilian, it`s a little daunting to be on a grand jury, right? But imagine if you`re being asked to testify to a grand jury, imagine how daunting that must be. I think about that. You`ve been called as a witness to testify to a grand jury, you can`t have a lawyer in the room with you. The questions can be posed to you from regular people, from this panel of 16 to 23 citizens who aren`t lawyers and they can ask you anything they want.
And if you`re a witness before a grand jury, you must answer all of their questions. The only way you can say, no, I`m not answering that is if you invoke your Fifth Amendment right not just to self incriminating.
So, unless you`re pleading the Fifth, you have to answer everything they ask, and it could be anything. It`s random civilians who have been put on a grand jury who are questioning you. And even though this is a secret proceeding and that`s treated very seriously, this whole interaction that you have with a witness to a grand jury, it is transcribed and if you lie, that is criminal perjury and did I mention your lawyer cannot be in the room with you?
In the special counsel investigation being led by former FBI Director Robert Mueller, he`s been using a grand jury based in Washington, D.C., and we think another one based in Virginia as well. So far, the special counsel and his team of prosecutors have persuaded the grand jury to bring charges against four people. The president`s campaign chairman, the president`s deputy campaign chairman, the president`s first national security adviser and a foreign policy advisor from the campaign.
Everybody`s very familiar now with this group of four people from the Trump campaign who have been charged or who have pled guilty.
Here`s your pop quiz, though. Who have the witnesses been who`s been called to testify before the grand jury so far in the Mueller investigation? Do you have a list in mind, right?
Special counsel, it`s been months now assembling evidence documents witnesses bringing them before these panels of 16 to 23 citizens so those grand jurors can decide if charges will be brought who have the witness has been this far, who`s been called to testify who`s been subpoenaed and directed that they will testify.
You can name -- if you can name six of them off the top of your head, I`ll give you a dollar because it is a really weird list. Now, obviously, we don`t have a complete list. Grand jury proceedings are secret and there have likely been lots of people who have testified we don`t know about, but the ones we do know about their public reporting, it is a weird list.
We based on published reports the people we know who have been called to testify before the grand juries in the Robert Mueller investigation thus far are a former spokesman for Paul Manafort, a man named Jason Maloney. Also one of Paul Manafort`s lawyers, you can you can subpoena a lawyer. Her name is Melissa Lorenza. Also, Sam Clovis, who worked on the Trump campaign who was going to be an official at the Agriculture Department and now isn`t, but somehow he still has some White House role but nobody knows what it is.
Carter Page was reportedly called to testify before the grand jury, Trump campaign foreign policy advisor. Rinat Akhmetshin, one of the guys at the Trump Tower meeting, Russian-born fixer with ties to Russian military intelligence, he has reportedly been subpoenaed to testify before the grand jury. Public relations firms who were at one point involved within overseas work with Paul Manafort.
A PR consultant who worked with Mike Flynn`s lobbying firm, we don`t know who that is. It`s just according to CNN, someone who worked at Sphere consulting. OK. And the last person we know about who has been directed to testify to the grand jury and the Robert Mueller investigation is, of course, Sezgin Baran Korkmaz.
Admit it, Sezgin Baran Korkmaz was not on your list. I don`t have to pay you that dollar, you didn`t get them. Sezgin Baran Korkmaz was reported by "ProPublica" in September to have been subpoenaed to appear before a grand jury in Washington in conjunction with the Robert Mueller investigation. He`s believed to be an associate of the guy who put Mike Flynn on the payroll of the Turkish government while Flynn was advising the Trump campaign.
Now, I can speculate and come up with what a grand jury might have wanted to get from each of those people in terms of evidence that might help them make a decision about a potential indictment. But that`s just a weird list of people, right? I mean what team is that. That`s a strange group.
And today, it just got a lot stranger because today, it got a big A-list name. Today, the latest person we can add to that odd group of people who are known to have been subpoenaed to testify to a grand jury and the Mueller investigation, now, it includes the president`s former White House chief strategist, the guy who ran the Trump campaign after Manafort was fired over things related to what he`s now facing criminal charges for, Steve Bannon.
This was first reported by Michael Schmidt at "The New York Times" this morning. Michael Schmidt will be here live in just a moment to talk about some of that reporting.
But here`s some questions on the legal side of this. Why subpoena Steve Bannon? Why not do a voluntary or informal interview with him the way they have done with so many other White House people and Trump campaign people, all right? Again, based on public reporting, we believe that everybody from the White House counsel Don McGahn to White House communications director Hope Hicks to Jared Kushner to Stephen Miller to Sean Spicer, to Reince Priebus, to Christopher Steele, to George Papadopoulos` Italian fiance.
I mean, there`s a ton of people who have been questioned by the Mueller inquiry, but they didn`t get a subpoena. They didn`t get told to turn up as a witness before the grand jury. Why is Steve Bannon, the one and only senior Trump advisor, senior White House official who is being treated this way? Who`s been given a subpoena and told to testify to the grand jury?
Does that necessarily mean that they asked him to do a voluntary interview like all the other White House officials but he refused? For Michael Schmidt`s reporting today, he says, quote, the subpoena could be a negotiating tactic. Mr. Mueller is likely to allow Bannon to forego the grand jury appearance if he agrees to instead be questioned by investigators in the less formal setting of the special counsel`s office. OK.
So, should we therefore see the subpoena as an indication that they asked Bannon to come in for an interview like everybody else and he said no? Is there any other reason why prosecutors might want him to be subpoenaed, might want to get him in front of the grand jury besides a negotiating tactic, besides trying to you know give him a little shove and make him understand the seriousness of this matter?
Michael Schmidt, as I mentioned, at "The New York Times", was first to report this story, but then this evening, FOX News confirmed it and published their own version of the story, which included this somewhat strange line. Quote: Sources told FOX News that Bannon subpoena was issued after the FBI was initially unable to contact him.
Is that why -- is that how this works? FBI wants to have a friendly chat. They expected to say yes, but they come to your house three times and you`re not there. So, now, it`s a subpoena? I mean, that seems weird. They couldn`t contact him?
Steve Bannon is kind of unavoidable for comment when it comes to the media. The FBI couldn`t find him and so then they got a subpoena?
I mentioned that Steve Bannon is having an unusual day today. That`s not just because of this news about him being subpoenaed to testify before the grand jury. It`s also that this news about the subpoena for the grand jury comes alongside the news of his other subpoena today. Starting at 8:30 this morning, Steve Bannon went in to speak behind closed doors with the House Intelligence Committee.
It was reported today first by Chad Pergram at Fox News, that the White House told Steve Bannon at this testimony today that he should not answer House Intelligence Committee questions about his time on the transition or his time working in the White House. After he refused to answer questions on those matters apparently based on that White House instruction, the committee -- the committee reportedly issued him a subpoena on the spot, in the room, compelling his testimony, despite his initial refusal to answer questions.
That reporting has now been backed up by sources. Adam Schiff came out of that committee room tonight and said that after the subpoena was issued to him Steve Bannon continued to refuse to answer questions despite the subpoena.
If all this is true, I have more questions can you refuse to answer questions in the face of subpoena? Is it unusual for the White House to have told a White House adviser not to answer questions from Congress? Is it unusual that the committee in Congress had a subpoena for him ready to go in the room as soon as they came to that standoff?
And last but not least, why did both of these things happen on the same day, right? I mean, twice did one of these subpoenas make the other one happen? Do they tend to arrive in pairs? Is one of them going to interfere with the other one? Is this more orderly than it seems?
I have exactly the right person here in studio next to explain this to us. Plus, we`ve got Michael Schmidt here from "The New York Times" who broke this story today hours before anybody else got anywhere near it.
Stay with us.
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REPORTER: Mr. Bannon, who from the White House asked you to invoke executive privilege? How did the meeting go Mr. Bannon?
Mr. Bannon, what did they ask you in there? What`d they ask you in there Mr. Bannon?
STEVE BANNON: Great. Great day. Thanks guys.
(END VIDEO CLIP)
MADDOW: I have to say special kudos to NBC cameraman Paul Rigney there for not just waiting out in the cold to get the shot but also managing to get off a few questions to Steve Bannon which he answered by saying, great, great. Thanks, guys. Great.
He`s the former Trump campaign chief. He departed the capital late tonight after over nine and a half hours of what you might call testimony before the House Intelligence Committee. He was in there a long time, but it was not apparently because he was busy answering their questions -- at least that`s according to members of Congress who were in that room.
After that marathon session, the top Democrat on the committee, Adam Schiff, came out and briefed reporters on what exactly happened there.
(BEGIN VIDEO CLIP)
REP. ADAM SCHIFF (D-CA), RANKING MEMBER, INTELLIGENCE COMMMITTEE: We obviously have a long day with Mr. Bannon today. It began by being informed by Mr. Bannon`s counsel that as he was attending on a voluntary basis, he was going to decline to answer any questions concerning any discussions, meetings, conversations that took place, either during the transition or during his time of administration.
He was then served with a subpoena during the course of the interview, his counsel then conferred again with the White House and was instructed by the White House to refuse again to answer any questions even though he was under compulsory process concerning the period of time during the transition and during the administration.
This was effectively a gag order by the White House, preventing this witness from answering almost any question concerning his time in the transition or the administration. If the White House is permitted to maintain that kind of a gag rule on a witness, no congressional investigation could ever be effective. So, this obviously can`t stand. We expect to have Mr. Bannon back in we hope very soon with a different position by the White House, because this position is completely unsustainable.
(END VIDEO CLIP)
MADDOW: Congressman Adam Schiff, top Democrat on the Intelligence Committee, after Steve Bannon, former Trump campaign chief, former White House chief strategist, spent nine and a half hours behind closed doors with that committee, apparently having a fight with them over whether or not he could answer questions about his time in the White House or in the transition.
Chuck Rosenberg joins us now. He`s a former U.S. attorney, former chief of staff to FBI Director James Comey. He`s also the former acting head of the DEA.
Mr. Rosenberg, thank you so much for being here. I really appreciate it.
CHUCK ROSENBERG, FORMER FEDERAL PROSECUTOR: My pleasure, Rachel.
MADDOW: There`s a few legal matters here that I`m hoping you can help us understand, me as a non-lawyer and the audience trying to figure out the news importance of some of these matters. Let`s start small.
ROSENBERG: OK.
MADDOW: It`s petit jury, not petit jury, right?
ROSENBERG: I think it`s petit.
MADDOW: Yes.
ROSENBERG: I took Spanish in high school, but I think it`s petit.
MADDOW: OK.
ROSENBERG: It`s least what I know.
MADDOW: So, a grand jury decides -- works with prosecutors to decide whether or not to bring an indictment.
ROSENBERG: That`s correct.
MADDOW: Bring charges.
ROSENBERG: You got that right.
MADDOW: And the petit trial jury is the more familiar jury to most people who watch "Law and Order".
ROSENBERG: They determine whether you`re guilty or not guilty at trial.
MADDOW: OK. So, if there is this remarkable news first reported today by Michael Schmidt at "The New York Times" that Steve Bannon, former Trump campaign chief, former White House chief strategist, has been subpoenaed to testify to the grand jury by the Mueller investigation, if he appears before the grand jury as a witness, is it true that he is compelled to answer their questions? You`re not allowed to opt out other than by invoking the Fifth Amendment.
ROSENBERG: That`s right. You have to answer any question that`s asked of you.
Now the way I did it when I was before grand juries as a line prosecutor was I would take all of their questions at the end of the session, anything that a member of the grand jury wanted to ask and screen it, so I made sure that they weren`t going to ask something that had intruded on attorney- client privilege or that was extraneous or irrelevant. So, they are certainly allowed to ask questions. The witness has to answer it, but often the prosecutor will serve a screening function to make sure that the questions are appropriate.
MADDOW: Does the grand jury -- the jurors themselves, do they play a role in deciding who gets subpoenaed and who they hear from, who gets brought in as a witness?
ROSENBERG: They can, and often in my own cases, I would ask the grand jurors after a witness had left, did that make sense? Do you feel like you need something more? Is there -- are there things we can do to make this clearer to you?
Sometimes, we would just bring in whoever we thought we should bring in.
MADDOW: Yes.
ROSENBERG: But often if you talk to the men and women, there is a great collective knowledge among these 23 people and listen to what they think is missing what they want to hear. It can help drive your investigation.
MADDOW: Even though grand jury proceedings are secret and I know that`s taken very seriously.
ROSENBERG: Very seriously.
MADDOW: Witnesses testimony is transcribed and there -- it`s illegal to lie in a grand jury proceeding, right?
ROSENBERG: Correct.
MADDOW: OK. It was suggested in Mr. Schmidt`s reporting today and some of the other reporting about the does one of the discussion about this reported subpoena today that the fact that Steve Bannon has been subpoenaed to testify to the grand jury should be seen as a fairly clear indication that he himself is not a target of the investigation. Is that true?
ROSENBERG: Probably true.
MADDOW: OK.
ROSENBERG: Because the U.S. attorney`s manual and we have a big manual, lots and lots of chapters and pages, tells prosecutors that normally you don`t ask a target of an investigation to testify. There are exceptions and a target could request the opportunity to testify. But normally, in the main, that`s correct. Targets don`t go before a grand jury.
MADDOW: If you were going to issue a witness a subpoena to come testify to the grand jury, how much advance notice would you give him?
ROSENBERG: Well, it might just be a date or two. There`s something called a forthwith subpoena which is very rarely issued, which I would give to you right here and require you to come with me right now to testify. That`s the exception. Normally, you try and get people time so they can get counsel if they don`t have one so they can prepare. You try to do it in a sort of a thoughtful way.
MADDOW: One of the unusual things about this news and the reason I spent so much time in the A-block going through the context of this is because I`m quite sure we don`t know all the people who have been subpoenaed to testify to this grand jury. We do know -- we do know as a fairly substantial list though based on public reporting.
I think -- I gather that witnesses themselves are not precluded by the secrecy of the grand jury proceedings from confirming that they have been called to be witnesses.
ROSENBERG: In fact, they can do more than that if they choose. They can come out on the courthouse steps and hold a press conference. They don`t typically do that, but those grand juries -- the grand jury secrecy rules applied to the grand jurors, prosecutors, the agents to the folks who work in the courthouse, but not to the witness.
MADDOW: So, we do know about some witnesses who have been called. It is a list that doesn`t have a lot of other people on it who look like Steve Bannon in terms of his role in the campaign and in the White House. Therefore, I`m trying to figure out why he got subpoenaed. Lots of other people who look like him in terms of his standing in the White House were brought in for voluntary interviews, people like Jared Kushner, Hope Hicks, Sean Spicer, Reince Priebus, those other people. What do you make of the fact that he`s been subpoenaed rather than doing a voluntary interview like everybody else?
ROSENBERG: So, two possible reasons, at least two primary possible reasons. One is he didn`t agree to a voluntary interview. So, I asked you, Rachel if you`re willing to come the interview and you say, no, thank you. That`s completely within your right to do that. So, reason number one.
Reason number two, and I think this is a really important reason. Prosecutors often put in front of a grand jury people who they think might not tell them the whole truth. Let me explain. I`m about to become an old guy telling war stories.
MADDOW: OK.
ROSENBERG: But I`ll make it brief. I had a case many years ago. It was drive-by shooting and the operative fact was whether or not the girlfriend of the bad guy saw a gun in the glove box of his car and when we interviewed her, she admitted to seeing it. We interviewed her again, she admitted to seeing it, but we had a bad feeling that she wouldn`t tell the truth on the stand. So we put her in the grand jury.
In the grand jury, she admitted to seeing it. So, consistent, consistent and consistent, but at a trial, she denied seeing it.
MADDOW: Just like you suspected --
ROSENBERG: Just like we thought. She might and the fact that we had locked her in in the grand jury, we had obtained her testimony under oath in the grand jury, that we could use it -- the grand jury testimony -- as substantive proof of what she actually saw.
MADDOW: Even though she wasn`t willing to say it in trial.
ROSENBERG: Correct.
MADDOW: That`s very helpful.
Chuck Rosenberg, every time you come in the show, I learn a lot and you help me understand things way better than I did before you were here. Thank you so much.
ROSENBERG: My pleasure.
MADDOW: I really, really appreciate it. Thank you.
Chuck Rosenberg, former U.S. attorney, former chief of staff to the FBI Director James Comey, former acting head of the DEA -- a guy I can`t really believe we can get to come on the show, but don`t tell him.
We`ll be right back.
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(BEGIN VIDEO CLIP)
REP. MIKE CONWAY (R-TX), INTELLIGENCE COMMITTEE: -- recessed the deposition, the subpoena remains in effect, there are questions that we ask that kind of we`re not answered and we`re going to resolve those issues to get the answers to our questions. And (INAUDIBLE)
REPORTER: So, is he going to come back to the committee?
CONWAY: The committee -- the subpoena stays in effect, and we`re going to get the answers from Mr. Bannon that we did not get answer today.
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MADDOW: The subpoena from the House Intelligence Committee discussed there by Mike Conaway. That subpoena was one of two subpoenas we learned about today regarding former Trump campaign chief, Steve Bannon. The other of course was from special counsel Robert Mueller. Michael Schmidt at "The New York Times" first to report today that Mr. Bannon was subpoenaed last week to not just hand over documents but to personally testify before a grand jury convened by the special counsel.
This is the first time Robert Mueller is known to have used a grand jury subpoena to seek to compel testimony from a member of Mr. Trump`s inner circle.
Joining us now is man who broke this story, Michael Schmidt, Washington correspondent for "The New York Times".
Mike, thanks very much for joining us tonight. Congratulations on this big scoop.
MICHAEL SCHMIDT, WASHINGTON CORRESPONDENT, THE NEW YORK TIMES: Yes, thanks for having me.
MADDOW: So before now, I`m observing this just as a lay observer, it has seemed to me that we`ve only had a fairly random cast of characters who have been confirmed as having been asked to testify before the grand jury by Robert Mueller. Do we know -- do you have any further clarity as to why Mueller is taking this step with Steve Bannon rather than having him in for a voluntary interview like so many other top White House officials?
SCHMIDT: No, we don`t and that sort of the curious thing in the last few months of last year, a bunch of White House -- current and former White House officials came in and met with Mueller. They did so in the informal setting of his offices where they met with his prosecutors and his investigators. Bannon was never among those people who reported to have met with Mueller, and we all sort of wondered why was it, had Bannon got in it and we just not heard about it?
And then we learn about this subpoena today and we say, wow, this is funny, he`s treating banning differently than he`s treating everyone else. Now, the thing that`s changed since the end of last year is the book and the president`s attacks on Bannon.
The president has really gone after him. He`s threatened to sue him. He`s criticized him. He`s put a big there`s been a big fissure there.
So, what was -- was Mueller trying to you know protect Bannon and basically give him some protection in the face of these criticisms from the president and basically say, look, you can come in and you`re being compelled to testify, you have to tell me everything you know despite the fact that the president`s bearing down on you?
MADDOW: And the way you reported that, Mike, I was struck by the language about how you laid it out. You reported today, Mr. Mueller issued the subpoena after Mr. Bannon was quoted in a new book criticizing Mr. Trump. Do you have any indication that the subpoena, you know, other than the potentially coincidental timing, that the subpoena was actually sparked by the book?
SCHMIDT: We don`t know. We don`t know.
MADDOW: OK.
SCHMIDT: At the end of the day, we don`t know a lot about why Mueller did this. This -- you know, sometimes grand jury subpoenas can be used as ways of just sort of forcing witnesses to agree to an interview, was that the case here? We`re not sure.
But there are things that have changed. In the book -- you know, the book has some very explosive things in it that come from Bannon. Bannon says he believes that Mueller`s investigation will ultimately end in money- laundering. If you`re Mueller and you`re doing your investigation you`d want to know why Steve Bannon believes that why does he think that`s going to happen?
And we don`t know the depth and breadth of everything that Mueller is going to ask him, but it`s this stuff about the Russian collusion and the stuff that`s gone on in the White House.
MADDOW: Mike, do you know if there`s any relationship between the subpoena that you reported today from Robert Mueller for Mr. Bannon and the subpoena that was -- that was issued to Mr. Bannon today inside the closed-door meeting room of the House Intelligence Committee? Do we know if there`s any legal or strategic interaction going on between these two different investigations and both of these subpoenas being given to him today?
SCHMIDT: It seemed like a bit of a food fight in there. We haven`t really been able to figure out exactly what happened. Obviously, it was all going on behind closed doors.
What we do know is that Bannon tried to invoke executive privilege and as soon as he did that, they tried to subpoena him to get more. And I don`t think that they were successful. I think that they -- that Bannon`s lawyers did cite the fact that he was under subpoena from Mueller as the way of saying, look, he`s not going to answer questions about the White House -- time in the White House or time during the transition. I`m sure that was not satisfying at all to the committee and it actually led the committee to accuse the White House of putting a gag order on him when we have no indication that the White House actually said to Bannon that he should invoke executive privilege.
So, I`m not sure what the game was here, but I think at the end of the day, he spent a lot of time in there and everyone left unsatisfied.
MADDOW: Right. And we`re now left with the question not only of this interesting dynamic between Mr. Bannon and the White House with the White House reportedly telling him not to testify, there`s a sub dynamic there that`s also interesting, which is that that advice presumably came from the White House counsel Don McGahn. Steve Bannon`s lawyer is also serving as Don McGahn`s lawyer in the Russia investigation. So, that feels like an odd conflict.
And then there`s, of course, the possibility that there`s a chance Mr. Bannon`s testimony to the House Intelligence Committee might interfere with his testimony or with the integrity of his testimony to the Mueller investigation now that we know for sure he will be speaking to them too. So, this just got very complicated and you broke a very big part of it.
Michael Schmidt, Washington correspondent for "The New York Times" -- thank you so much for being here to help us understand your reporting tonight.
SCHMIDT: Thanks for having me.
MADDOW: All right. Like I said, a lot going on. I should tell you that Fox News has just reported in the last couple of moments that Steve Bannon will be returning to the Intelligence Committee day after tomorrow. They said that they didn`t finish with them today. They only recessed -- apparently recess is over Thursday afternoon.
We`ll be right back.
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MADDOW: The White House physician who conducted President Trump`s first presidential physical gave a readout of the president`s health and took questions from reporters for an hour and released written results from the president`s medical exam.
Here`s what we learned. The president is six foot three, 239 pounds, which makes him very close to but not quite technically obese. The White House doctor said flatly today that the president does no exercise. He said the president needs to learn lose 10 or 15 pounds this year, said he has high cholesterol.
But all of that information was conveyed as just part of how Dr. Ronny Jackson was explaining to the press court today that the president is in quite excellent health.
Now, the contrast of those details versus that assessment sparked what I think was a good question from CNN`s Dr. Sanjay Gupta.
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DR. SANJAY GUPTA, CNN REPORTER: Doctor Jackson, he is taking cholesterol oral medication. He has evidence of heart evidence and he`s borderline obese.
DR. RONNY JACKSON, WHITE HOUSE DOCTOR: Right.
GUPTA: Can you characterize that as excellent health?
JACKSON: I mean, I think based on his current cardiac, you know, study -- I mean his heart is very healthy. Those are all things that we`re looking at.
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MADDOW: We also learned that the president had a cognitive assessment at his own insistence as part of the physical. That`s not usually included in a president`s physical, but Dr. Jackson went to pains to explain that he hadn`t planned on giving a cognitive exam, he didn`t think one was medically warranted, but the president had requested it, given speculation recently over the president`s mental health. Today, Dr. Jackson reported that the president got 30 out 30 of on his cognitive assessment.
Dr. Jackson was also asked about the president`s bone spurs. Remember, bone spurs were the basis for the president`s deferments from serving in the military during Vietnam.
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JACKSON: We didn`t examine his, you know, for bone spurs right now. He`s not come to me, you know, complaining of that.
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MADDOW: Behold, he`s healed.
Dr. Jackson said today that the president is in excellent health. He did not explain why the initial statement from the White House attesting to the president`s excellent health misspelled his own name.
But now we know. There you have it.
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JACKSON: He has incredible genes. I just assume --
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MADDOW: We`ve got little bit of breaking news. All night this evening, we have been covering this remarkable day of breaking news about Steve Bannon, who is the president`s former campaign chief, who was also a senior strategist in the White House, which is a job title that never existed before him.
Steve Bannon has been out of the White House since August. He`s had a recently very contentious relationship with the president. And Michael Schmidt reported this morning at "The New York times" that Bannon has now been given a subpoena by Robert Mueller and his special counsel investigation compelling Bannon to testify to the grand jury in Mueller`s investigation that is very unusual.
Other senior White House officials have been doing voluntary interviews with Mueller, getting a subpoena to testify to the grand jury. That is not something that somebody of the stature that Steve Bannon had in the campaign or the White House, nobody else has been subjected to that. And so, that has been a very interesting and intriguing development, particularly given the recent bad blood between Bannon and the president.
Now, after that story broke today, Steve Bannon had an unusual development in his testimony at the House Intelligence Committee. He was due to testify today behind closed doors. He apparently was told by the White House that he should not answer the Intelligence Committee`s questions even behind closed doors about his time in the White House transition or working in the White House itself after the inauguration.
He was in that committee room for nine and a half hours, during which time the committee decided to issue him a subpoena there on the spot which would then compel him to answer their questions, at least theoretically. He apparently continued to refuse to answer them while he stayed there for nine and a half days.
Well, now, Betsy Woodruff at "The Daily Beast" has broken some interesting new news on this story. I`m just going to read you her lead. Again, this has just broken today since we`ve been on the air.
Former White House chief strategist Steve Bannon broke some bad news to House investigators today announcing that the White House invoked executive privilege to keep him from answering many of their questions. OK. But executive privilege will not keep Steve Bannon from sharing information with special counsel Robert Mueller`s team.
Betsy Woodruff cites a person familiar with the situation. That source who is familiar with Bannon`s thinking says, quote: Mueller hear everything Bannon has to say. Huh?
Joining us on short notice by phone is Betsy Woodruff, "Daily Beast" politics reporter who just broke this story.
Betsy, thank you very much for joining us on zero notice.
BETSY WOODRUFF, POLITICS REPORTER, THE DAILY BEAST (via telephone): Thanks for having me, Rachel.
MADDOW: So you`re citing a source who is familiar with the situation and familiar with Bannon`s thinking as saying that what he did in the intelligence committee today, saying I`m invoking executive privilege. I`m not going to talk about my communications with the president or my time in the White House, that cannot be used when he testifies in the Mueller investigation?
WOODRUFF: My understanding of this based on conversations that I have been having over the last few hours is as follows: executive privilege is something the White House and the president invoke themselves.
MADDOW: Yes.
WOODRUFF: So, Bannon is not the person who invokes that executive privilege. What I have been told is that the White House has specifically invoked executive privilege as it relates to these congressional inquiries, and we should not expect the White House to invoke that privilege as it relates to communications that Bannon has with Bob Mueller.
MADDOW: Aha.
WOODRUFF: Now, of course the obvious caution here is that it can be difficult to predict what this White House will do. But I`m confident enough in my sourcing that we decided to go ahead and move forward with this story tonight.
The person who I spoke with is very much a credible, serious person. And we can say with total confidence that as of now, based on what we know, Bannon is in a situation where he is ready to talk to Mueller, and he is going to tell Mueller things that today he did not tell congressional investigators.
MADDOW: Do we know anything about Bannon, Mr. Bannon`s state of mind when it comes to this president? Obviously, they`ve had a major conflict, a major falling out since he left the White House, particularly in the last couple of weeks. Is that what`s motivating his strategy here? Do we know anything in terms of having a source who is familiar with his thinking? Do we know what he might tell Mueller?
WOODRUFF: What I`ve been told is that the question of the indication of the executive privilege is not something where Bannon has been able to make decisions for himself. It`s up to the White House whether or not to invoke privilege. So, essentially, the standoff that we with saw today, even though it was between Bannon himself and members and staffers of the intelligence committee, in reality was between the White House and members of the intelligence committee.
Perhaps, it`s a little overdramatic to say that Bannon is a pawn in this situation. But he is not a character who`s acting. He is not making the decisions about what he can and can`t tell people. And that`s why this executive privilege question which again is something the White House invokes is such an important one.
One person I spoke with pointed out to me that executive privilege, an important part of how executive privilege works is based on the constitutional separation of powers theory, the idea that the executive branch should be walled off from the legislative branch. Of course, the House Intelligence Committee is part of the legislative branch while President Trump is the white house and bob Mueller are all part of the executive branch.
So, one thing that a person who I have been chatting with over the evening highlighted is if the White House were to try to invoke executive privilege in a way that is related to Bob Mueller, the legal argument could be harder than it is for vis-a-vis Congress.
MADDOW: And, Betsy, to be clear, as far as we know, and I think I know the answer to this just based on other public reporting, the White House is not invoking executive privilege when it comes to the Mueller inquiry. Not just specific to Steve Bannon. The White House is not invoking executive privilege when it comes to the Mueller inquiry full stop. They haven`t invoked it with any of the witnesses or any of the documents they`ve been asked to hand over at this point, right?
WOODRUFF: Correct. That`s my understanding. In fact, the president`s legal team has been adamant for months now that they are fully cooperating with Mueller. Their public message and also the message that they share privately with reporters is that they think Mueller is somehow going to clear President Trump`s name. Of course, that`s very much TBD.
But as of now, we are not seeing any sort of stiff-arm tactics from the White House towards Mueller`s team.
MADDOW: Betsy Woodruff of "Daily Beast", politics reporter there breaking an important development in this story just moments ago. Betsy, thank you for helping us understand your reporting. I really appreciate you joining us.
WOODRUFF: No problem.
MADDOW: Again, a day of dramatic developments. I will just highlight as we go here, I`m out of time. But I want to just highlight one thing I mentioned here earlier and I think it maybe isn`t getting much attention. It may get more in the coming days.
And that is Steve Bannon bragged for a long time he didn`t need a lawyer in the Russia investigation. He wasn`t even bothering to get himself a lawyer. He now has a lawyer.
And while he was behind closed doors at the House Intelligence Committee today, we are told that he and his lawyer were communicating with the White House about the White House asserting that he should not testify to that committee. His lawyer that he has retained for this Russia stuff who was with him today at House Intelligence, his lawyer is also the lawyer on Russia matters for the White House counsel who was the person who is presumably advising Steve Bannon not to talk to that committee today.
Having somebody on those two different sides of the story both represented by the same attorney -- that`s weird.
That does it for us tonight. We`ll see you again tomorrow.
Now, it`s time for "THE LAST WORD WITH LAWRENCE O`DONNELL."
Good evening, Lawrence.
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