Show: THE RACHEL MADDOW SHOW Date: May 3, 2018 Guest: Mimi Rocah, James McGovern
RACHEL MADDOW, MSNBC HOST: Thanks to you at home for joining us today.
It is hard to know where to start on a night like this after a day like this, in a world like this. But let`s just start right here tonight. Let`s start with this. James Comey was right.
(BEGIN VIDEO CLIP)
RUDY GIULIANI, PRES. TRUMP`S ATTORNEY: He fired Comey because Comey would not, among other things, say he wasn`t a target of the investigation.
(END VIDEO CLIP)
MADDOW: Once upon a time, the White House tried to pretend that President Trump fired James Comey, the director of the FBI for something having to do with the handling of the Hillary Clinton e-mail investigation.
Within two days, though, the president slipped off that rationale like he was falling off a slippery rock when he told NBC`s Lester Holt that when actually he made the decision to fire Comey, he had the Russia issue on his mind. And then he said the same thing to high ranking Russian officials who invited into the Oval Office. He told them, quote, I just fired the head of FBI. I faced great pressure because of Russia. That`s taken off.
James Comey himself said that it also seemed that he was getting fired because of the Russia investigation.
(BEGIN VIDEO CLIP)
SEN. DIANNE FEINSTEIN (D-CA), INTELLIGENCE COMMITTEE: Do you believe the Russia investigation played a role?
JAMES COMEY, FORMER FBI DIRECTOR: In why I was fired?
FEINSTEIN: Yes.
COMEY: Yes, because I`ve seen the president say so. I take the president at his word that I was fired because of the Russia investigation. Something about the way I was conducting it the president felt created pressure on him that he wanted to relieve.
(END VIDEO CLIP)
MADDOW: Just like all the rest of us, James Comey saw the president admit to Lester Holt, saw the president brag to Russian officials that he had fired the FBI director because of the Russia investigation. Why wouldn`t anyone think that was true?
We then got lots of granular detail bolstering James Comey sense of that matter, when the Justice Department released the memos that he wrote up at the time, documenting his interactions with the president, memorializing all the things the president told him to do or asked him to do about the Russia investigation that Comey wouldn`t do.
So, in the real world, it`s never been a mystery as to why the special counsel`s office might have been looking at potential obstruction of justice in the form of President Trump firing the FBI director because of the FBI director`s role in this investigation into the president and his campaign. Firing somebody who is running or overseeing an investigation into you -- yes, that`s going to get you investigated for obstruction of justice.
In the real world, it`s never been a big mystery as to why Mueller might be pursuing that. What`s new now is that now, the White House or at least the president`s new lawyer has just dropped the official fig leaf. They are flat out admitting it.
(BEGIN VIDEO CLIP)
GIULIANI: He fired Comey because Comey would not, among other thing, say that he wasn`t a target of the investigation.
(END VIDEO CLIP)
MADDOW: So, that seems like as good a place as any to start on a night like this. When James Comey documented all that stuff the president told him to do about the Russia investigation, when he memorialized it in writing, when he briefed it to all those other senior Justice Department and FBI officials so there would be documented corroborated evidence of the president`s intent and his actions leading up to the firing of James Comey -- well, the president`s new lead lawyer on these matters now concede, yes, Comey was right. That was why he was fired. So we`re done here, right?
It`s like after you get the -- we got a confession, do we now wrap this up? Actually, apparently, the movie never ends. Even when you get to the end of the plot and the bad guy gets caught and we all know what happened, finally, apparently, we`re all still sitting here in the dark indefinitely and the floor is sticky.
So, we`re going to do things a little differently on the show tonight. There`s so much news that`s broken in the past 24 hours. In addition to the president`s new yeah, I did it admission on the Comey firing. So, we`re going to do something we have only done once before during this presidency, actually only once before in the whole history of the show.
We`re going to bring in a group of legal experts to be here live with me onset tonight to basically take me to school. To take us all to fake law school, so we can try to get a realistic assessment of the importance of what has just happened tonight and today and last night, because -- I mean, from a non-legal, just news perspective, from a citizen`s perspective, yes, it is fascinating that the president is making this admission about firing the FBI director. It`s fascinating that he`s now admitting that`s what he did and why.
But from a legal sense, how does that relate to obstruction of justice as a realistic legal liability for the president? We will figure that out this hour with expert help.
And along the same lines it`s something even weirder than fascinating that that will be a front page in U.S. presidential history. This is the front page of "The New York Times" Website right now: President acknowledges porn actress payoff, contradicts earlier claims. What a life we`re all living, right? Happy National Day of Prayer.
It is worth noting that today is the day the president has admitted that James Comey was right about why the president fired him. It`s also worth noting that today is the day the president has finally admitted that adult film actress Stephanie Clifford, aka, Stormy Daniels, she was also right about the president secretly paying her off.
(BEGIN VIDEO CLIP)
MICHAEL AVENATTI, ATTORNEY FOR STORMY DANIELS: I`m confident that when we get to the bottom of this and we are going to get to the bottom of it. This case is not going to be settled or dismissed until we get to the bottom of it. I`m confident that we are going to discover that the president knew about the agreement, new about the $130,000, either in contemporaneous with the payment or shortly thereafter.
(END VIDEO CLIP)
MADDOW: That was Stormy Daniel`s lawyer a week ago. This is today. Trump acknowledges payment to porn star Stormy Daniels. So, ding, ding, ding. Correct.
Stormy Daniels and her lawyer -- James Comey was right about the president`s liability there. Stormy Daniels and her lawyer were right about the president`s liability on this matter.
But again, as admittedly fascinating as that is for us as citizens and people observing the news, as a legal matter, how does this new admission that Stormy Daniels was right, how does that relate to the president`s legal liability on campaign finance violations or any other potential criminal matter related to what he is now admitting? We`ll figure that out this hour too with expert help.
But then there`s also Michael Cohen case and it`s revelations today. We know from previous reporting and publicly filed court documents in the Cohen case that federal prosecutors in New York and federal agents working with them -- they got warrant to surveil multiple e-mail accounts used by Michael Cohen. We know that in executing search warrants pertaining to Mr. Cohen, federal agents seized multiple electronic devices that he used including phones, BlackBerrys, tablets and computers, more than a dozen.
It`s been reported that as part of that seizure, federal agents also obtained audio recordings of Mr. Cohen`s phone calls and communications. Recordings that Mr. Cohen made on those devices that the government now has. We know that federal agents and prosecutors also seized boxes and boxes of physical documents from Michael Cohen`s home, his office, the hotel room he was living in, and a safety deposit box that he maintained.
Now, for several hours today, we thought federal agents and prosecutors had also received authorization to surveil Michael Cohen`s actual live phone calls, to listen in on wiretap lines. Now, NBC later corrected that story and said, actually, the kind of phone warrant prosecutors got from Michael Cohen wasn`t that high level. It was the kind of warrant that tells you in real time what calls are going into and out from the surveilled phone but it`s not the kind of wiretap order that would let them listen in in real time.
So, that all happened today in terms of what the federal government, what prosecutors have in terms of access to information and documentation and communications from Michael Cohen.
But now, on top of all that, we`ve got this do-whoop new explanation from the president`s lawyer, Rudy Giuliani, as to how exactly things work between President Trump and this lawyer, Michael Cohen.
(BEGIN VIDEO CLIP)
GIULIANI: Having something to do with paying some Stormy Daniels woman $130,000, I mean, which is going to turn out to be perfectly legal. That money was not campaign money. Sorry. I`m giving you a fact now that you don`t know. It`s not campaign money. No campaign finance violation.
SEAN HANNITY, FOX NEWS HOST: They funneled it through the law firm?
GIULIANI: Funneled it through the law firm and the president repaid it.
HANNITY: Oh, I didn`t know -- he did?
GIULIANI: Yes.
When I heard Cohen`s retainer of $35,000, when he was doing no work for the president, I said that`s how he`s repaying -- that`s how he`s repaying it, with a little profit and a little margin for paying taxes for Michael.
(END VIDEO CLIP)
MADDOW: Huh? That`s the arrange -- is that a normal arrangement? What is a retainer really?
According to the president`s lawyer, Mr. Giuliani, Michael Cohen was doing no legal work for the president, but that`s how the president secretly paid people. He would funnel it through the law firm.
This wasn`t a deposition. This was like Giuliani getting pinned to the wall and accidentally -- he`s just putting that out there. Mr. Giuliani`s explanation of how this works in the president`s life is that payments of all kinds, at one point, he calls them harassment payments. Other people call them hush money payments. Who knows what kind of payments we`re talking about here?
Payments in the president`s life, in Mr. Giuliani`s words, are funneled through Michael Cohen, in a way that`s designed to make those payments look like legal expenses. Even though they are not legal expenses because Michael Cohen doesn`t actually do any legal work for him. If that`s really their system, we can probably safely assume that federal prosecutors now have documentation of that system, given all the stuff they have seized in their investigation of Michael Cohen.
Is that going to be a problem for the president? I mean, honestly, happy national prayer day. Today, we learned that the president, as president, not as a candidate, not as a private citizen, but since he has been president, by his own account, by his lawyer`s own account, today, we learned that the president, for months, has been paying secret hush money payments to an adult film actress that he has falsely disguised as legal fees that he`s paying to a lawyer who he freely admit is not doing legal work for him. No problem, right?
We will get, as I said, some expert help here in just a moment as to how exactly this may constitute a problem for the president.
But there`s one more thing that I want to give you a heads up about, before we bring in these folks who are going to help us sort of these questions tonight. It is a document we have obtained exclusively. It`s not a secret document, but we don`t think it`s publicly seen before.
And I`m going to show it on the air here in a second tonight, because behind all this craziness around the Mueller investigation, and Rudy Giuliani admitting all this stuff, and the Cohen investigation and the president taking all these shots at the Justice Department, we think that the little document that we just obtained, it`s a letter, we think it sort of gives a good window into, I don`t know if it`s the president`s mindset. It`s sort of the Trump world mindset, what might be happening there behind the scenes and what we might expect the president to do next.
So, what this has to do with is actually the Paul Manafort trial. Paul Manafort, as you know, was Trump`s campaign chair. Paul Manafort has multiple charges pending against him now in federal court both in Washington, D.C., and in Virginia. In D.C., Mr. Manafort tried filing a civil lawsuit against the Department of Justice, saying that they were prosecuting him improperly.
His civil lawsuit claimed that the special counsel`s office is basically a bogus legal entity, and that at least it isn`t empowered to charge Paul Manafort with the stuff they have charged him with.
Now, Paul Manafort has already lost this civil case, it`s been dismissed as of last week, but you might remember that the Mueller team, Bob Mueller`s prosecutors gave us one really juicy document in their court filings where they were trying to fend off this civil suit from Paul Manafort. Remember, the civil suit is saying that the special counsel`s office is way beyond its remit, they`re operating illegally. They have no authority to go after Paul Manafort for this stuff.
In response, the special counsel`s office asserted that, yes, they did have very clear authority to do what they did when it came to charging Paul Manafort. In order to make that case in court, they filed this document. And they filed it in an unsealed way so we could all see it. It`s a memo that was written just a few months after the special counsel, Robert Mueller, was appointed, was given his assignment. It`s a memo from Rod Rosenstein, deputy attorney general who both appointed Robert Mueller and who now oversees the Mueller investigation.
In this memo, which is dated August 2nd, 2017, the Deputy Attorney General Rod Rosenstein spells out in detail what exactly Mueller and his team are cleared to investigate within the remit established for them by the Department of Justice. Quote, the May 17th, 2017 order that established the special counsel, that established the special counsel, that order was worded categorically in order to permit its public release without confirming specific investigations involving specific individuals.
This memorandum, on the other hand, several months later, provides a more specific description of your authority. The following allegations were within the scope of the investigation at the time of your appointment and are within the scope of the order, colon. And then, the whole next section is redacted. Ugh.
But then, on the next page, we get an unredacted section with allegations against Paul Manafort, that the special counsel Robert Mueller is explicitly authorized to investigate. That Manafort colluded with Russia in Russia`s effort to interfere in the election, that Manafort committed crimes with respect to payments he received when he worked for that pro- Russian Ukrainian dictator.
So, we got those specific allegations against Manafort that Mueller is cleared to investigate. And then the whole rest of the page is blacked out. And maybe that stuff that`s blacked out is more stuff that Mueller is cleared to investigate about Manafort. Maybe it`s more stuff that Mueller is cleared to investigate against other people. We can`t tell.
But that three-page memo with the big redactions, it was put in a public court filing by Robert Mueller`s office last month, to rebut this civil case from Paul Manafort. To rebut Paul Manafort`s charge that Mueller was off on some wild goose chase when he went and charged Paul Manafort.
This document shows in black and white that Robert Mueller and the special counsel`s office, they were dually and specifically authorized to go after Paul Manafort for the stuff that Manafort ultimately got charged with.
So, we got that last month. Shortly after that turned up in the docket, shortly after Mueller filed that document in court, pro-Trump Republican members of Congress, who are very bothered by the Mueller investigation, they insisted that they actually needed to see that whole memo with no redactions. They needed to see all of the other specific information about who Mueller is cleared to investigate and what exactly he is investigating them for.
Weed to see that -- this is -- this is part of the strategy that they`ve been pursuing in Congress, right, to demand more and more information about the Mueller investigation, about this live open investigation, while it is still live and open. I mean, we all know, can`t comment on an ongoing investigation, right? I mean, by rule, and in some cases by law, the Justice Department really can`t share materials like that with anyone, including Congress, in the middle of an ongoing investigation.
But it seems like among pro-Trump Republican members of Congress, their idea is to demand documents from the deputy attorney general Rod Rosenstein, demand stuff from him way beyond the level of stuff he could conceivably actually give them. So, he has to say no.
But by forcing him to say no, they are hoping to create a pretense to fire him for the terrible crime of not handing over information about a live ongoing investigation that could jeopardize that investigation or be used to tip off targets and witnesses if it ever got out.
So, of course, the Justice Department said no when these Republican members of Congress said they wanted to see the whole source memo of everyone Mueller is looking at and everything he`s looking at them for. Well, we`ve now got the demand letter that they sent to try to get that document. It was sent on April 9th. It was sent to the deputy attorney general, to Rod Rosenstein.
Two members of Congress, Jim Jordan and Mark Meadows, say, quote, it`s critical that we have access to the entirety of your memo authorizing the investigation. We are requesting to view the full, unredacted version of this memo this week. They also say, interestingly, that this memo that they want to see is a, quote, classified document, and they say they got a problem with that. The memo status as a classified document raises serious concerns that the special counsel appointment began outside the scope of regulations by originating in a counterintelligence basis rather than a criminal basis.
Huh? Clearly, these members of Congress are freelancing here. Again, this memo from Congressman Mark Meadows and Congressman Jim Jordan to the Justice Department, it`s not at all clear they know what they`re talking about.
This memo that they are requesting isn`t classified. It`s not marked as a classified document. It is law enforcement sensitive, sure. But that is a different thing than classified. It`s law enforcement sensitive, because letting that memo old without screw this up as a law enforcement matter. But it`s not a classified document.
So, at least in one important sense, these members of Congress making this demand of Rod Rosenstein, they clearly don`t know what they`re talking about. But this is what`s going on in Trump land. These kinds of demands are what they`re ceding in Congress every day now, and what the president is complaining about online now every day to lay down a pretense for why senior Justice Department officials need to be fired, for saying no to these crazy requests that they could not say yes to without jeopardizing the Mueller investigation.
And the reason it feels like we`re getting to the edge of a cliff, I think, right now on this point, is because the Justice Department knows exactly what these members of Congress are up to.
Quoting from "The New York Times" today, quote, a former federal law enforcement official familiar with the department`s views said that Mr. Rosenstein and top FBI officials have come to suspect that some lawmakers are using their oversight authority to gain intelligence about that investigation, so that it could be shared with the White House.
So, the Justice Department and the FBI have come to suspect that some members of Congress themselves are basically themselves working to try to obstruct justice by using their status as members of Congress to obtain information so they can then, with that information, tip off the president about the inner workings of this ongoing investigation into the president.
I mean, if this was a private citizen who was somehow stealing information about the inner workings of the Mueller investigation and then shoveling it to the White House to tip the president off, we would expect that private citizen to end up in trouble for that, as a matter of obstruction of justice, for querying this ongoing law enforcement matter, right?
But if it`s a member of Congress or two, could a member of Congress be charged with that? Could they go to jail?
I mean, like I said, every day in this crisis-ridden presidency has lots of news now. Not every day make you feel like you need to go to fake law school for a little while in order to figure out today`s news. But tonight is one of those nights. So, let`s try that, next. Stay with us.
(COMMERCIAL BREAK)
MADDOW: On a news day like today, which, let`s face it, it`s kind of every day now. When the news feels like nine separate Rube Goldberg contraptions that you`re trying to work your way out of simultaneously and you`re a little drunk and it`s slippery, days like this, we here at THE RACHEL MADDOW SHOW often end up wishing that we had a lawyer or three or seven or maybe a firm that we could speak to, who would make sense of daily developments, because so many of the scandals afflicting this presidency are going to end up playing out in courtrooms and are already playing out in legal offices.
So, tonight, to that end, we are going to cross our fingers and reprise something we have only done once before in the history of this show. It`s time for another issue, another addition, another year, of THE RACHEL MADDOW SHOW`s fake law school.
We`re going to hash out with some great legal minds some of the questions I have about what`s going on in these legal battles around the president with the latest revelations about Stormy Daniels being rooted through the president and what that means, also just trying to understand what kind of legal jeopardy the president and his associates could be in and why they`re admitting what they`re admitting.
Joining us now our are three newest professors. Criminal defense attorney Danny Cevallos, also two federal prosecutors -- Mimi Rocah, who was an assistant U.S. attorney in the Southern District of New York, and James McGovern, who headed the criminal division in the Eastern District of New York -- defense lawyer, two former prosecutors here.
Thank you both or thank you all three of for really being here. I`m super nervous to talk to you, very happy that you`re here.
Let me start with the, some of the Stormy Daniels stuff that we learned today.
Danny, what`s a retainer?
DANNY CEVALLOS, CRIMINAL DEFENSE ATTORNEY: A retainer is an interesting concept. Sometimes it`s a flat fee but sometimes it`s an amount that`s paid due that you have to put in your client trust account and then pay yourself as you bill hourly. But there`s a lot of rules that relate to retainers.
A retainer, you can`t just, in many cases, take someone`s check or take someone`s money and just stuff it into your pocket. Just as it is with any business in America, but with lawyers, there are several additional ethical rules. We have to tell our client what we`re charging them. Ideally, it should be in a written fee agreement.
There is a paper trail, Rachel, and I`m not so sure there was one in this case.
MADDOW: So, the reason it`s newly relevant and why we`re trying to figure out what that might mean legally is that Rudy Giuliani is now saying that the way the president paid people, including Stormy Daniels, he`s suggesting this might be multiple -- this might be an arrangement for multiple people, is that he had a retainer that he was paying to Michael Cohen as his attorney, Michael Cohen was doing no legal work in conjunction with that retainer. So, therefore, that money was a pass-through, that he funneled money, that`s the term he used, funneled money through Michael Cohen to pay people and it looked like legal fees.
It looked like legal -- that it`s money he was paying Michael Cohen for legal work even though it wasn`t. Clearly there would be an ethical problem for Michael Cohen, it sounds like.
CEVALLOS: I think the ethical problem is the least of the concerns, because ethical problems really relate to your professional responsibility and your license.
MADDOW: Right.
CEVALLOS: But whenever you`re funneling through any intermediary company and concealing the source, concealing the destination, you run into actual federal law and criminal law.
MADDOW: OK.
CEVALLOS: And that can be a problem. But at least in terms of retainers, no. Retainers were not designed to be loans or paid out. You can`t use --
MADDOW: Secret slush funding.
CEVALLOS: Yes, you can`t use your client trust account for that kind of business.
MADDOW: James and Mimi, do you agree that there are federal criminal laws that may be implicated here?
JAMES MCGOVERN, FORMER FEDERAL PROSECUTOR: Well, seems to me like what they`re trying to do is set up a situation where they`re muddying the waters of how the president could have repaid Michael Cohen, thereby exculpating Michael Cohen for violating the campaign finance law, right?
MADDOW: OK.
MCGOVERN: So, if he gave $130,000 and it was immediately given back to him, he really hasn`t made an illegal contribution to -- the argument could be that he hasn`t made an illegal contribution --
MADDOW: Slow down there for a second. So, the campaign finance issue is, you can`t donate $130,000 to somebody`s campaign, unless you are giving it to yourself. So, Mr. Trump could make a $130,000 donation to his campaign, he would have to declare it as such. So, there`s the issue of whether or not these things were ever turned.
You`re saying that Michael -- if Michael Cohen, which is what he previously said, had given that money himself, he`d be on the hook for an illegal donation, the campaign would be on the hook for accepting it, and the payment to Stormy Daniels, then the outgoing flow of funds to her should have been declared as a campaign expenditure.
MCGOVERN: Potentially, right, because there`s still up there that -- the argument is being tossed around about this is a personal matter, not a contribution that`s being made to, you know, ensure or to help your candidate get elected. Obviously, there are problems with that.
MADDOW: Mr. Giuliani today saying, can you imagine if this came out in October before the last debate? I mean, he`s acknowledging that the timing of this was keyed to the election. So, that seems like that issue might be dead.
But I mean, on the issue of this new reality that they want us to believe, about this funding, if the -- if Giuliani`s right, and the president did pay Ms. Daniels this way, by calling it legal fees, by saying it was money to pay Michael Cohen for his legal representation, though he knew he wasn`t legally doing any work for him, is that -- I get PR-wise, why they would be doing that. Is that potentially illegal for him to have paid that way?
MIMI ROCAH, FORMER ASSISTANT U.S. ATTORNEY: Yes, potentially.
MADDOW: How?
ROCAH: Well, a couple of different ways. First of all, it depends on where the money originally came from. So, you know, if you are trying to hide the source of the funds, which sounds like they were, because they are sort of passing it through, you know, the law firm, trying to disguise it, I think, as a legal retainer, retainer fee, then where did the funds originally come from? If they came from, you know, a legitimate source, then, OK --
MADDOW: They say they came from Mr. Trump`s private personal bank account, his personal funds?
ROCAH: Then you probably don`t have a separate crime. Then it just still would be in campaign finance land.
MADDOW: OK.
ROCAH: But if it came -- I don`t know where it came from, if it came from a loan that someone didn`t disclose with the real purpose of the money was from, you know, then it could be proceeds of a separate crime and you`re looking at some kind of money laundering, potentially.
So, if funds come from an illegal source, right, like, the most common example, which isn`t applicable here, but just to make the example, you know, if you get money from selling drugs, and then you pass it through a legitimate source to try to make it look legitimate, that can be your road to money laundering.
MADDOW: But in this -- in this case, it seems like, if -- I mean, when do we take them at their word? At what point -- let`s take the latest iteration of what they say happened here as their current statement of the facts. The campaign finance violation worry here still, even in this newest Rudy Giuliani iteration, is that Michael Cohen advanced this money for the purposes of affecting the campaign.
Campaign did not disclose it as a loan they had received for Mr. Cohen. They did not disclose the payment to Ms. Daniels as a campaign expenditure, and the president didn`t disclose, if he then repaid Mr. Cohen for that expenditure, he didn`t disclose that he had a personal liability in terms of this loan out to Mr. Cohen, nobody`s disclosed any of these things, either in campaign finance or the president`s personal disclosure, just a matter of not having properly kept track of it.
ROCAH: But where did Michael Cohen get the money from? We don`t know that.
MADDOW: He says his home equity loan.
ROCAH: Well, he did say that at one point, but then it sounded like Giuliani --
MADDOW: Saying it comes from this retainer.
ROCAH: I think it`s fair to say we don`t -- right, we don`t know -- that`s what I`m saying. We don`t know where the money came from that was paid to her.
CEVALLOS: And I can`t believe, we have two prosecutors here, and they haven`t asked, what are the tax consequences of all these payments --
MADDOW: Right, yes.
CEVALLOS: -- that are flying to and flying fro, that`s the first thing that former U.S. attorneys are going to look at is, how are these being reported? Where are the 1099 miscellaneous forms? What is the affect of all these payments and how are they being classified and treated?
So, there are a number of things that, when the story keeps changing like this and the source and the destination of the money keeps changing, then the legal landscape changes with every new tale.
MADDOW: James?
MCGOVERN: You know, as a former prosecutor, because now I`m in private practice, just talking about strategy. I mean, what do we think is actually going on? What`s actually going on is, you have two -- a couple of statements that are very helpful to the people who want to advance I`m not guilty of anything.
You have -- if the money is coming from Michael Cohen is paid back, then Michael Cohen, that helps Michael Cohen in his case he wasn`t making illegal contributions, because he was giving a personal loan that had nothing to do with the campaign. And they got paid back, so it`s not really a contribution. It`s just a loan that was repaid.
This other thing about the -- you know, the amorphous retainer agreement that allows a whole bunch of money to sit in a pot that apparently, you know, Mr. Giuliani in his practices uses to pay off, you know, random people who come up and make claims --
MADDOW: Harassment payments.
MCGOVERN: Yes, whatever those are, I mean, fortunately, it`s not part of my practice, but apparently, according to him, it`s part of his. But what they does is, it moves the president away from the sort of mens rea or the intent to actually violate the campaign finance laws. Because if he`s given north of $450,000 a year to Michael Cohen to go play with and, you know, run off whoever is coming with a false allegation or a true allegation or whatever the case may be, he doesn`t really know what`s going on with that money.
So, it`s very hard to make the case, as was the case of the John Edwards case, where you had to argue that the recipient of the money, the candidate, and the donors conspired together to violate the campaign finance rules.
MADDOW: Right.
MCGOVERN: And here, if this money is just thrown into a pot and they`re all just, you know, using it to run off every, you know, person who has an allegation to make, then really, does the president know what that it`s being used for? I would submit that what they`re doing is, they are just trying to distance -- they`re helping Michael Cohen and distancing him from --
MADDOW: And one of the things that we have learned here in terms of the real politics is that the difference between campaign finance violations that nobody ever gets in trouble for and the campaign finance violations that you get charged with and you potentially go to jail for is when they are willing and they are knowing and they are willful violations. And so, trying to separate the president`s knowledge and intent makes all the difference to whether or not this is serious.
MCGOVERN: Of course.
MADDOW: OK, look, it`s working. Danny Cevallos, Mimi Rocah, James McGovern, stick around. I have more study group questions for you. Stay with us.
(COMMERCIAL BREAK)
MADDOW: Class is back in session at THE RACHEL MADDOW SHOW`s fake law school.
Joining us once again are real lawyers. Experienced defense lawyer Danny Cevallos. Mimi Roach who was a prosecutor at the Southern District of New York, and James McGovern is head of the criminal division in the Eastern District of New York.
Thank you all, again, for being here.
We were talking before the break about Michael Cohen, the president`s lawyer, his role in whatever happened with the Stormy Daniels payment. The president, obviously, has to account to the public, in terms of his changing accounts -- his changing accounts of how this all worked.
But then there`s also the issue of what Michael Cohen is in trouble for. Michael is being pursued by prosecutors in your old office, Mimi, the southern district of New York. We are told that what they were looking for in those search warrants had to do with the president, had to do with these payments, and we`re also told that they were doing pretty intrusive surveillance. We know his home, office, hotel room and safety deposit box were searched pursuant to a search warrant.
Would that be one search warrant or four, for four different locations like that?
ROCAH: You could do it either way. If they`re all in the same location, like, i.e., New York City --
MADDOW: Yes.
ROCAH: -- you could go to court with one parent, but list each place separately, and you still have to list probable cause as to each place. But it doesn`t matter if it`s in one document or four.
MADDOW: So, they had to say specifically what they thought was in the safety deposit box?
ROCAH: Exactly, yes.
MADDOW: And then we`re also told even before it happened, before those search warrants or that search warrant was executed, they were surveilling multiple e-mail accounts related to Mr. Cohen.
ROCAH: I would take a little bit of issue with the word surveilling.
MADDOW: OK.
ROCAH: My understanding is they got the e-mails through a search warrant of his e-mail account. So, just like --
MADDOW: A separate search warrant.
ROCAH: Yes.
MADDOW: To his e-mail provider?
ROCAH: That`s right.
CEVALLOS: When you`re talking about -- when you`re talking about surveillance, monitoring ongoing phone calls as they`re ongoing, you need a Title 3 wire type.
MADDOW: Right, let`s get to the phone warrant in a second.
CEVALLOS: But historical stuff, e-mails, since that`s already happened, you can get that with a search warrant.
MADDOW: OK. But as far as I know, and again, not a lawyer, and not that smart, the e-mail surveillance was unbeknownst to Mr. Cohen. So, this was not grabbing his computer and he knows that grabbing his computer and we`re going to read your historical email. It`s my understanding that they were able to look at his e-mails, if not in real time, at least while he didn`t know they were doing so. So, while they were looking at them, he`s sending and receiving new e-mails.
So, is that a different -- is that what we`re talking about here in terms of -- I mean, it almost seems like a wiretap, if you`re e-mails with people back and forth all day.
CEVALLOS: It could be a trap and trace, could be a pen register, it could be a search warrant. But the key is that the courts will view a search warrant for ongoing listening the same way they would for an e-mail, because they view the Internet as you sending and receiving these packets of information. It`s essentially the same search process.
MADDOW: So, we had this interesting thing today where NBC News reported initially there was a wiretap warrant, meaning -- which would mean listening in on people`s phone calls in real time. Then they changed, they got different reporting, multiple U.S. officials contesting that, and saying, no, it wasn`t that kind of a warrant, where you get to listen in on the call in real time, it was the kind of warrant that you can see in real time what calls are being made and received even if you can`t hear them.
ROCAH: Yes.
MADDOW: Go ahead.
ROCAH: That`s not a warrant, though. So, a search warrant, whether it`s on e-mail or in a Title 3 on a phone, those allow you to listen to -- view and listen to content.
MADDOW: OK.
ROCAH: A pen register is not a warrant, it only has a much lower standard. You don`t need probable cause to get it.
MADDOW: OK.
ROCAH: It is a kind of a court order, in the sense that a magistrate judge signs off on it, but it`s a very low threshold and all you`re getting is the numbers going in and out of the phone, the time and duration of the calls. That`s it. No content.
MADDOW: Jim, do you agree with this, this is something that is a low threshold thing and it happened commonly, but the person that`s the subject doesn`t know that it`s there.
MCGOVERN: No, no, that would defeat the purpose.
MADDOW: Do you need to have a different order like this for every phone or is it per person?
MCGOVERN: You`re having a -- call it a trap an trace order. Basically, you`re catching the numbers coming in and going out on a particular phone number.
MADDOW: Yes. So, here`s my question. So, a relatively low level order related to his phones. Not that kind of order at all, as far as we know on the e-mail. On the e-mail, they are reading his e-mails as they`re coming and going.
(CROSSTALK)
CEVALLOS: That`s not -- not necessarily. They may not be.
ROCAH: I don`t think it was -- as far as we know, we don`t know anything that the e-mail reading was in real time, which is what we refer to, when we say surveillance.
MADDOW: Yes.
ROCAH: Electronic surveillance, we mean real time. Listening to calls, getting tax as they`re occurring. A search warrant for an e-mail would be, you drop your search warrant, you get the order --
MADDOW: It`s all the e-mail that exists from that time previous.
ROCAH: Yes, now, you can get it renewed and you can keep getting them every 30 days --
MADDOW: But it`s a different kind of warrant if you want it forward looking, if you want to say, we`re going to get your e-mails as they come in.
ROCAH: Then it would be a Title 3.
MADDOW: OK.
CEVALLOS: And it might be a pen register, trap and trace, because you may not get the content as that`s coming in, but you will get IP addresses, information about where it`s going and who it`s coming from.
MADDOW: Finally, this makes sense. I`m so glad you`re here.
Danny Cevallos, Mimi Rocah, and Jim McGovern are our guests, two former prosecutors and a defense attorney. I have more for you.
We`ll be right back.
(COMMERCIAL BREAK)
MADDOW: James McGovern headed the criminal division in the Eastern District of New York. Mimi Rocah was a prosecutor in the Southern district of New York. Danny Cevallos is a defense attorney.
I want you to put your heads together and tell me why I`m wrong when I saw Rudy Giuliani on television, to my mind, confessing that the president committed obstruction of justice and fired the FBI director because of the FBI director`s role in the Russia investigation into the president.
When Rudy Giuliani said he fired Comey because Comey wouldn`t say he wasn`t a target of the investigation, me, as a civilian, as a non-lawyer, I was like, oh, game over, we can all go home early. This is done. This is toast. This is confessing to what we`ve all been assuming that Mueller is trying to nail the president for.
That`s how I see it as a layperson. How did you see it as lawyers?
ROCAH: So --
MADDOW: Please.
ROCAH: One issue, though, is this is Giuliani`s statement, so, a kind of threshold issue is, what`s the value of, you know, what your lawyer says on TV --
MADDOW: He says he`s speaking on the president`s behalf.
ROCAH: Right. So, but -- it would definitely be something -- if you were trying to get these admitted in court, you would have to show that he was acting as his agent --
MADDOW: OK. You can`t confess on somebody else`s behalf.
ROCAH: No. And there would be challenges to that, but you know --
MCGOVERN: He goes through lawyers.
ROCAH: Yes, exactly.
MCGOVERN: The next lawyer might have an entirely different story.
MADDOW: Totally different confession. Totally different crime.
ROCAH: It`s not inconsistent that -- with things that Trump has said himself. That`s sort of a threshold thing is where Giuliani`s statements themselves, you know, could be evidence of Trump`s state of mind.
MADDOW: Go ahead, Danny.
CEVALLOS: There`s a view of the world that the president can`t necessarily obstruct justice, because he can fire the director at his pleasure, for any reason, if he just thinks he doesn`t do a good job or doesn`t like him.
Yes, he can. He can lawfully fire the director. But corruption and obstruction statues often depend on an official doing an otherwise lawful act but additionally with a corrupt motive. So, he could fire James Comey but, hypothetically if a president did that for a bag of sweaty $1 bills, that additional fact shows some corrupt intent.
So, almost all of the white collar crimes, you see bribery, obstruction of justice, they all involve an official doing an otherwise unlawful act, but there`s additional facts that they accepted something, some quid pro quo that made it corrupt.
MADDOW: So, I`m going to ask you why the dollar bills are sweaty in a second. While we all think that Robert Mueller and his prosecutors are investigating the president for whether or not the president`s firing of Comey was done for a corrupt purpose, was done to obstruct the investigation. Aren`t they supposed to be arguing that the president did it for some reason unrelated to Russia?
Why would they concede this point? Why would the president`s lawyer concede this point, given that this is a matter of active investigation?
MCGOVERN: It doesn`t really make much sense. I mean, frankly. It doesn`t make much sense. I know what the, you know, as you say, the general public`s perception is, if you fire the guy who is leading the investigation against you and you then have somebody admit on your behalf that`s why you did it, that doesn`t look good, I mean, for appearances, at the very least, and maybe for criminal liability.
I mean, I don`t think we can overlook the fact that the director serves at the president`s pleasure. And he has the authority to remove him, and as Danny points out, you know, sometimes you can do something you have the authority to do, but you shouldn`t have done it because you are violating a statute at the same time. That said, I mean, what we`ve seen unfold over the last year, year and a half, is why guys like Jim Comey and Donald Trump don`t actually get along. It seems like they have inconsistent personalities. So, I don`t see Donald Trump really looking at Jim Comey as his FBI director --
MADDOW: Which would be a great explanation from his lawyer. Yes, does not like that guy, chuck and cheese, you came in different worlds. Instead, to have his lawyer get on TV and say, Russia investigation, had to get rid of that guy.
ROCAH: And remember, there`s other evidence out there, too, right --
MADDOW: Including the president`s own statements.
ROCAH: And also, Trump having said, you know, I want my A.G. to be loyal to me, all sorts of things that enhance the idea this was for a corrupt purpose.
MADDOW: Mimi Rocah, James McGovern, Danny Cevallos, thank you all so much.
The sweaty dollar bills thing, we`re going to take up on another show that we do on weekends on a secret network where we swear.
Thank you for being in law school with us. We`ll be right back. Stay with us.
(COMMERCIAL BREAK)
MADDOW: Father Patrick Conroy has served as chaplain of the House of Representatives for the last seven years. Until last month, when the most unexpected headline on tax day was that House Speaker Paul Ryan fired the priest and he wasn`t saying why. The speaker demanded Father Conroy`s resignation, Father Conroy said, OK, but there was no explanation as to why he was being forced out.
Speculation immediately focused on a prayer the chaplain read about the Republican tax bill. Quote: May their efforts these days guarantee that there are not winners and losers under new tax laws but benefits balanced and shared by all Americans.
And blessed are the poor, the first shall be last.
Father Conroy was cast out. Well, today, he came back. He unquit. He wrote a letter to the House Speaker Paul Ryan today, saying, quote, at this time, and upon advice of counsel, I retract and rescind my resignation.
And then he lists a few reasons. Quote, on Friday, April 13th, your chief of staff came to me and informed me you were asking for my letter of resignation. I inquired as to whether or not it was for cause, your staffer mentioned something like, maybe it was a time we had a chaplain that wasn`t Catholic.
Paul Ryan`s chief of staff tonight denies that allegation. But the chaplain has levied that charge, that maybe he was canned with a snide remark about it being time for somebody not Catholic. But the chaplain unquit today and there upon, Speaker Ryan, thinking better of the matter, decided to unfire him, as well.
So, as of tonight, Father Patrick Conroy now returns to service as chaplain in the House, as it was in the beginning, shall it be ever more. At least until someone else prays for equality.
(COMMERCIAL BREAK)
MADDOW: So, today we learned that the president, as president, not as a candidate, but as president, for months has been paying secret hush money payments to an adult film actress, payments that he has falsely disguised as fees that he was paying to a lawyer for legal work, even though that lawyer is not actually doing any legal work for that money. And that is not the product of an investigation. That is now being admitted to and offered to the public by the president`s new layer, who also says the president really did fire the FBI director because of the Russia investigation.
Like I said, the movie ends here, but apparently we all have to stay in this dark theater for quite some time because even though this is the plot apparently, they`re all still playing it out.
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.
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED. END