Texas now houses 2,324 migrant children. TRANSCRIPT: 11/28/18, The Rachel Maddow Show
RACHEL MADDOW, MSNBC HOST: Good evening, Chris. Thanks, my friend. Much
CHRIS HAYES, MSNBC HOST: You bet.
MADDOW: And thanks to you at home for joining us this hour.
In the summer of 1974, the special counsel who was investigating the
Watergate scandal wrote a letter to Congress, to the Judiciary Committee in
Congress, and letter detailed what his investigation, what his prosecutors
and investigators had turned up about criminal behavior by the president at
the time, President Richard Nixon.
Now, by this point, by the summer of 1974, the president`s campaign
chairman, who would also have been his attorney general, the president`s
White House chief of staff, a whole bunch of other senior White House
personnel from the Nixon administration, had already been indicted a few
months earlier for very serious crimes. And in conjunction with that
indictment, the grand jury had named President Nixon as a co-conspirator,
even though he personally was not included as a defendant in the
indictment. He was the unindicted co-conspirator.
Now, the legal team working for President Nixon at the time raised a
challenge to that. They basically challenged whether the information in
the case, the evidence seen by the grand jury that produced that
indictment, produced those allegations against the president, the
president`s legal team questioned whether that evidence was actually
sufficient to warrant something as radical as naming the serving president
of the United States as part of a serious criminal conspiracy. And so,
when the president`s legal team raised that objection, this kind of
momentous thing happened, at the height of the summer in 1974.
Because the Judiciary Committee in Congress, chairman of the Judiciary
Committee, wrote to the Watergate special counsel, the prosecutor who had
brought that indictment, and said basically, hey, you obtained this
indictment, you presented evidence to the grand jury sufficient to warrant
this indictment. If, in fact, that evidence was also sufficient to warrant
naming the president as a co-conspirator in these crimes, well, let`s hear
it. What is that evidence? What is it that you found about President
Richard Nixon that justified this allegation that he was in on all of these
And the special prosecutor for Watergate responded, Leon Jaworski,
basically said, OK, here you go, dear Mr. Chairman, happy to. You send us
a subpoena, we will happily send you over our summary of evidence
pertaining to President Nixon`s conduct in the Watergate matter. And the
prosecutor Leon Jaworski then produced page after page after page after
page of detailed allegations that Nixon had, in fact, committed tons of
crimes, including lots of criminal obstruction of justice.
Quote: Beginning no later than March 21st, 1973, the president joined an
ongoing criminal conspiracy to obstruct justice, to obstruct a criminal
investigation and to commit perjury, which include making and causing to be
made false statements and declarations, making offers of clemency and
leniency, and obtaining information from the Justice Department to thwart
For example, there`s evidence that the president conspired with others to
defraud the United States, and to commit violations of certain federal
criminal laws, to wit, obstruction of justice, which included paying of
funds and offers of clemency and other benefits in order to influence the
testimony of witnesses. Making and facilitating the making of false
statements and declarations, obtaining information about the ongoing
investigation from the Justice Department for the purpose of diverting or
thwarting the investigation. Also, perjury, including the president`s
direct and personal efforts to encourage and facilitate the giving of
misleading and false testimony by aides. Also, bribery, by directly and
indirectly offering something of value, including clemency and/or a pardon,
with the intent to influence testimony before grand juries, courts, and
congressional committees. Also, obstruction of a criminal investigation.
Also, obstruction of a criminal investigation. It goes on and on and on
Quote: There`s ample evidence to demonstrate that President Nixon took
personal and affirmative direct action to further the conspiracy outlined
above. These allegations against Nixon from 1974, and the evidence that
supported these allegations against Nixon, they`ve gotten a lot of
attention this year, right? And that`s in part because a whole bunch of
this stuff about Nixon has just been unsealed, just made available to the
public for the first time, so there`s historical interest.
But honestly, what is driving a lot of that historical interest, what`s
been driving the effort to get a bunch of this stuff unsealed now, is the
almost uncannily parallel experience we are having right now in our
lifetime when it comes to our current president, right? I mean, even just
looking at this one exchange of information between the Judiciary Committee
and the Watergate prosecutor in `74, just pull a couple of those bullet
points for a second. See if any of these things ring a bell, right?
Making and facilitating the making of false statements and declarations
about the investigation. Offers of clemency to influence the testimony of
witnesses. Obtaining information about the ongoing investigation for the
purpose of diverting or thwarting that investigation. Yes, I mean, these
could be captions for a picture book tour of the Nixon administration or
the Trump administration, either way.
I mean, when it came to Nixon, it turned out at the time, and we can now
see more clearly than ever, 45 years down the line, it turned out there
were mountains of this stuff, this evidence of Nixon`s criminal behavior,
mountains of this stuff that was turned up by federal prosecutors and
Now, in our lifetime, as yet, we know very little about what federal
prosecutors and federal investigators have about our current president.
But nevertheless, we have still got our own mountain of reporting and
evidence about an even bigger number of alleged instances of obstruction by
the president. Just stuff turned up by investigative reporting and in some
cases, just admitted to by the president and other senior figures
themselves, or just committed openly out in public, out loud, I mean, to
the point where it`s sometimes been squirmingly awkward for those involved.
(BEGIN VIDEO CLIP)
SEN. RICHARD BLUMENTHAL (D-CT), ARMED SERVICES COMMITTEE: Have you talked
about this issue with Admiral Rogers?
DAN COATS, DNI: That is – that is something that I would like to
withhold, that question, at this particular point in time.
(END VIDEO CLIP)
MADDOW: That excruciatingly pregnant nine-second-long pause, brought to
you by the director of national intelligence, Dan Coats. That was the day
after NBC News reported that the president had asked him, and also the head
of the National Security Agency at the time, head of the NSA, Admiral Mike
Rogers, NBC reported that the president had asked them both to make public
statements saying that they and their agencies knew that President Trump
and his campaign hadn`t colluded with Russia. So the Russia investigation
was way off-base.
The day before that nine-second pause from Director Coats in Congress, NBC
have reported that not only had President Trump directed him as the
director of national intelligence and also the head of the NSA to make
those public statements to undermine the Russia investigation, but also the
two of them, head of the NSA, head of the office of the director of
national intelligence, the two of them had talked to each other about that
request from the president. Sort of compared notes after the president
approached them both.
(BEGIN VIDEO CLIP)
SEN. ANGUS KING (I-ME), INTELLIGENCE COMMITTEE: I`ll ask both of you the
same question, why are you not answering these questions? Is there an
invocation by the president of the United States of executive privilege, is
there or not?
ADM. MICHAEL ROGERS, DIRECTOR OF NATIONAL SECURITY AGENCY: Not that I`m
KING: Then why are you not –
ROGERS: Because I feel it is inappropriate, Senator.
KING: What you feel isn`t relevant, Admiral. What you feel isn`t the
answer – why are you not answering the questions? Is it an invocation of
executive privilege? If there is, let`s know about it. If there isn`t,
answer the questions.
ROGERS: I stand by the comments I made. I`m not interested in repeating
myself, sir. I don`t mean that in a contentious way.
KING: Well, I do mean it in a contentious way. I don`t understand why
you`re not answering our questions. You can`t – when you were confirmed
before the Armed Services Committee, you took an oath. Do you solemnly
swear to give the committee the truth, the full truth, and nothing but the
truth, so help you God, and you answered yes to that.
ROGERS: And I answered that those conversations were classified. And it`s
not appropriate in an open forum to discuss those classified conversations.
KING: What is classified about whether or not you should intervene in the
ROGERS: Sir, I stand by my previous comments.
KING: Mr. Coats, same series of questions. What`s the basis for your
refusal to answer these questions today?
COATS: The basis is that what I have previously explained. I do not
believe it is appropriate for me to –
KING: What`s the basis – I`m not satisfied with, I do not believe it`s
appropriate or I do not feel I should answer. I want to understand a legal
basis, you swore that oath to tell us the truth, the whole truth, and
nothing but the truth, and today you are refusing to do so. What is the
legal basis for your refusal to testify to this committee?
COATS: I`m not sure I have a legal basis.
(END VIDEO CLIP)
MADDOW: So, already, this stuff is out there, right? That`s why these
senators are able to ask these questions. In this case, Senator Angus King
of Maine, right? Those two intelligence agency chiefs are on the hot seat
there because of public reports that these senior intelligence officials,
director of national intelligence, head of the NSA, the president asked
them to make statements exonerating the president in the Russia
In fact, the day before that exchange with Angus King, “The Washington
Post” reported that the president had asked not only for these exonerating
statements, the president had asked the director of National Intelligence
to personally intervene with the FBI, to tell the FBI to stop its
investigation on the Russia matter, including specifically their
investigation into the national security adviser, Mike Flynn, right?
Some of the most powerful obstruction evidence against Nixon from the `70s,
some of the evidence against Nixon that is still the most widely remembered
stuff, all these decades later, because it made it into the impeachment
articles against him, some of the most widely remembered parts of his
obstruction effort is when he tried to block the FBI investigation into him
by using the intelligence agencies, by using the CIA, telling the FBI there
is stuff they couldn`t look into, because those were CIA matters, trying to
enlist the CIA in an effort to cover up what he had done and stop the FBI
investigation that was going to expose him.
When it comes to President Trump, apparently trying the same thing, not
only did he reportedly ask the heads of two intelligence agencies to help
him out when it came to public perceptions of the Russia investigation, he
specifically requested that they should intervene with the FBI, tell the
FBI to back off. And according to “The Washington Post,” that request was
made while another senior official was in the room and witnessed it. A man
named Mike Pompeo, who at the time of this alleged incident, he was the
head of the CIA. He`s since gone on to be secretary of state.
Here`s how he answered questions about what he saw, what he heard the day
he was in the room, in the White House, when he was the supposed witness to
the president trying to enlist the director of national intelligence to
kibosh the investigation into his campaign as a complete historical mirror
to what Nixon got busted for.
(BEGIN VIDEO CLIP)
SEN. BOB MENENDEZ (D-NJ), RANKING MEMBER, FOREIGN RELATIONS COMMITTEE: So,
Director, this account strongly suggests that the president asked you and
Director Coats to interfere with then FBI Director Comey`s investigations
into the Trump campaign`s contacts with Russia. Did President – what did
President Trump say to you and Director Coats in that meeting?
MIKE POMPEO, SECRETARY OF STATE: Senator, I`m not going to talk about the
conversation the president and I had.
MENENDEZ: Did he ask you to do anything as it relates to that
POMPEO: Senator, I don`t recall – I don`t recall what he asked me that
(END VIDEO CLIP)
MADDOW: Why would something like that even stand out? The president in
the Oval Office committing blatant obstruction of justice when it`s just
you and the director of national intelligence and the president in the
The president asked everybody else to leave and makes this request, will
you please shut off the investigation into me? Will you please intervene
with the FBI to make them stop investigating me? Why would you remember
that? Happens all the time, right?
Why would you recall? You know, maybe it does happen all the time. I
mean, just look at where we are now. Look at the height to which we have
With Nixon, it was a revelation at the end, all the stuff we learned that
he had done, all the stuff that prosecutors and investigators collected
evidence of in terms of his criminal behavior. With President Trump, it`s
been a mountain that`s been built up in public, stone by stone, from the
very beginning, from the very start of his presidency.
I mean, President Trump has not credibly denied any of this. He asked FBI
Director James Comey to lay off the FBI investigation into Michael Flynn as
it pertained to Russia. He fired James Comey as the head of the FBI after
Comey refused to do that and after Comey refused to make exonerating public
statements about the president.
The president also told Attorney General Jeff Sessions, directed him that
he shouldn`t follow the professional ethics advice of the Justice
Department, shouldn`t follow Justice Department rules, he should defy that
advice and rules and not recuse himself from overseeing the Russia
investigation, because the president believed that caused him to lose
control of the Russia investigation. The president told then Attorney
General Jeff Sessions out loud and in public, in writing, that he needed to
stop the Russia investigation, quote, right now.
One of the president`s lawyers quickly tried to explain that away by saying
it`s not a call to action. To be clear, the exact quote of the president,
out loud, in public, in writing, was this, quote: Attorney General Jeff
Sessions should stop this rigged witch hunt right now.
That`s not a call to action. It was like a fortune cookie thing, or from
somewhere, we don`t know what he meant. It`s ambiguous.
Just today, out loud, online, the president posted an image suggesting that
the deputy attorney general, who until recently oversaw the Russia
investigation, he should be jailed and tried for treason. The president
was asked just tonight, quote: Why did you think Rod Rosenstein belongs
behind bars? The president responded, quote, he should have never picked a
So the president just saying out loud tonight that a top Justice Department
official should be jailed and charged with a crime, a crime for which the
penalty is capital punishment, for having appointed a special counsel in
the Russia investigation, in that ongoing investigation.
The president, in June of last year, told his White House counsel to fire
the special counsel leading the Russia investigation. The president in
December did the same thing again. The president, on August 9th of last
year, placed a phone call from his golf club in New Jersey to the majority
leader in the Senate, Republican Senator Mitch McConnell, and excoriated
McConnell for, quote, refusing to protect him, meaning refusing to protect
the president from investigations of Russia interference in the 2016
Multiple Republicans were then briefed on that conversation, in which the
president called the Senate majority leader. Their accounts then made
their way into “The New York Times.” It was never even half-heartedly
denied by the president.
Even more specifically than that, the president repeatedly directed not
only Mitch McConnell but also another Republican in Senate leadership,
Senator Roy Blunt of Missouri and Senator Richard Burr, chair of the
Intelligence Committee, that they should stop the Senate Intelligence
Committee investigation into Russian interference.
Again, this isn`t contested by anybody involved. Senator Burr confirmed in
an interview to “The New York Times” that, yes, actually, the president did
contact him and tell him to end the Russia investigation in the Senate.
The president has also personally participated in concocting false public
statements about key issues that are a part of the investigation, including
the false statement he drafted in the name of his eldest son, claiming a
meeting with Russians to obtain damaging information about Hillary Clinton
was really a meeting about Russian adoptions.
I know you`re like, oh, Maddow, that`s cute. The news flash that the
president lied about a thing isn`t news anymore. I know, I know, I can
hear you through the TV, right?
That may be so, the president lies, is like, you know, dog bites man. It
may be so that that`s no longer news. God rest our souls for that.
But in the context of a key matter that is actively under criminal
investigation, concocting a false public statement to mislead investigators
about the nature of that incident, that isn`t just your run of the mill
presidential lie. Legally, that could be a problem. I mean, go back to
`74. Go back to the summer of `74 for what Nixon got in trouble with,
The president joined an ongoing criminal conspiracy to obstruct justice,
obstruct a criminal investigation, and commit perjury, including making
false statements and declarations. And what we have already seen out in
public, open source reporting that the president`s Russia lawyers went
privately to two crucial figures in the ongoing investigation, Mike Flynn
and Paul Manafort, and talked with their lawyers about potentially
receiving pardons from the president. This, at a time when both men were
already cooperating with or considering cooperating with federal
prosecutors in their investigation of the president.
Just today, in an interview, the president publicly floated the idea of a
pardon for his campaign chairman Paul Manafort. Why would I take that off
the table? This while Manafort is locked in a struggle with prosecutors
about his cooperation and with the president`s lawyers now proudly bragging
to “The New York Times” as of last night that while Manafort was supposedly
cooperating with them, they in fact were actually using him as a source of
intel to find out on behalf of the president what was going on inside the
special counsel`s office, what Mueller`s prosecutors were asking about and
what they were focusing on.
And, you know, we`ve heard some other elements of the president`s behavior
that sound like this before, it was reported in march by “The New York
Times” that the president had asked a couple of other key witnesses who had
spent a lot of time with Mueller`s prosecutors, Don McGahn, then-White
House counsel, and Reince Priebus, former White House chief of staff. “The
New York Times” reported that President Trump asked both of them detailed
questions about their interactions with the special counsel to try to glean
information from them about the status of the investigation, talking to
witnesses about their testimony to the special prosecutor.
But now, with this new development with Manafort, that`s a little
different, because now the president is doing that with a convicted felon,
to whom he`s also openly dangling a pardon. I mean, if you had been sealed
in a vault for the last two years, and you came out today and somebody
handed you that litany of basically uncontested detailed reporting and
evidence about the president`s efforts to obstruct this serious ongoing
criminal investigation into himself and his administration and his
campaign, you would think you were reading a bombshell indictment, right?
That signaled the end of a presidency, or at least the middle of
impeachment proceedings, right?
But instead, that`s just the public record. Just piled up piece by piece,
week after week, month after month, into what has ended up into a really
big mountain of evidence just on the issue of obstruction of justice. You
don`t realize how big the mountain is until you realize how far down the
ground is, but we`re way up here now.
On the day after the midterm election when the president fired Attorney
General Jeff Sessions and installed Matt Whitaker in his place, he admitted
almost instantly in an interview with “The Daily Caller” that he had put
Matt Whitaker there because of the Russia investigation. There arose
immediate concerns that Whitaker would shut down the Mueller investigation
from his perch at the Justice Department, and just a question of when and
how and how much we would know about it.
Shortly thereafter, somebody really interesting ran a really interesting
flag up the proverbial flagpole. The recently departed general counsel at
the FBI, James Baker, published a piece at “Lawfare” which drew attention
to a really specific part of the history and the legal precedent of
presidential criminal misbehavior here, specifically about what Nixon did.
Part of Nixon`s criminal history in Watergate is that he did use contact
with the Justice Department to spy on the investigation in them.
Part of the way Nixon did that was his frequent contact with a man who was
then the head of the criminal division at the Justice Department. His
meetings with Henry Peterson, his repeated calls with Peterson, he
extracted key information about what was going on in Watergate, what was
going on with key witnesses before the grand jury, and Nixon did that so he
and his legal team could strategize around it.
Right now, of course, there are concerns about whether or not Matt Whitaker
is playing that role for President Trump. It was therefore provocative for
James Baker, the recently departed FBI general counsel, to publish that
piece in “Lawfare”, right after Matt Whitaker was named, right? This was
Baker pointing out explicitly and without subtlety that, you know, when
Nixon used the Justice Department official as a back channel of information
and intel about the investigation that targeted him, that was treated as an
impeachable offense for that president. Ahem, right?
So, this is a very live issue – whether Matt Whitaker right now is back
channeling information about the investigation to Trump. How we`ll find
out about it, if that`s happening, who will prosecute it or otherwise try
to bring about accountability for that, if it is proven, which has made all
the more complicated, all the more dire and all the more urgent by the
prospect that Matt Whitaker may not just be providing intelligence about
the investigation to the White House, he may be actively throttling the
investigation secretly right now from inside the Justice Department, and
how would we know about that?
On top of that, within the last 24 hours, we now have new evidence that the
president definitely, this is confirmed, uncontested, that he has another
ongoing source of information from inside the Mueller investigation, namely
his former campaign chairman, Paul Manafort. This revelation that his
former campaign chairman, who is supposedly cooperating, instead has been
effectively functioning as a spy for Trump`s defense, inside the
That is obviously blowing up the criminal case that involves Paul Manafort,
but it also means the president and his legal team are now admitting out
loud, in public, that they are colluding with a convicted felon to
surreptitiously gain intelligence on the prosecution, basically in order to
discredit and outmaneuver those prosecutors who are investigating the
president. They are just openly admitting it, right, which would be a
massive expose if it were unveiled as an expose. As it is, it`s just piled
one more rock on top of the mountain, because they`re talking about it
It does also mean, though, that for once, we might actually be in truly,
truly legally unprecedented territory, right? I mean, yes, Nixon got a
back channel into the Justice Department, we know a little bit about what
Nixon did. Nixon didn`t use a convicted felon in the middle of his
criminal case as his back channel, right?
I mean, we have now, between what we learned in the `70s and what was
unsealed this year about Nixon, we`ve got now all the evidence about what
Nixon did and it`s staggering. But even Nixon never did anything like
this. And so, if this is all happening in plain sight right now, how does
it get fixed? And by whom? And what are the biggest risks for all of us
now in terms of whether or not people will be held accountable for what
they`ve done in plain sight?
That`s next. Hold on.
MADDOW: Just before Thanksgiving break, we covered on this show a
remarkable dive into a very resonant and relevant part of history. It was
published by the influential legal site “Lawfare”, and it looked at what
happened in Watergate when President Nixon was having improper contacts
with a high ranking Justice Department official, just as Watergate was
The piece looked at how it is a criminal matter, is treated as an
impeachable offense for the president to be using inside information about
a Justice Department investigation to plan his own defense. It was a
provocative thing for “Lawfare” to publish that piece because of what it
says implicitly about the current president now, now that he`s picked
somebody to oversee the Justice Department as a whole, and specifically the
special counsel investigation into this president and his campaign. But it
was also a really provocative piece because of who wrote it.
That analysis is not directly about President Trump, never mentions the
current president by name, but it explores Watergate history in a way that
people can see it pretty bluntly for themselves, and it was co-authored by
the former general counsel of the FBI, James Baker, who was one of the
people who former FBI Director James Comey confided in about his troubling
interactions with President Trump, when it came to President Trump
pressuring him about the FBI investigation into these matters.
Since we had that question so implicitly, provocatively raised about what
happens when a president gets information about an investigation into
himself improperly, since then, we have gotten information that the
president has also a different source of information from inside the
investigation, namely his convicted felon campaign chairman. The
president`s attorney Rudy Giuliani has confirmed the arrangement, and it`s
interesting enough now to focus on what that might mean for the criminal
case against Paul Manafort.
But what does it mean for the president? This feels like a momentous
thing, putting our finger on exactly what this means legally and in terms
of the size of this scandal, I think, involves some historical reckoning,
as well as some legal reckoning.
Joining us now is Ben Wittes. He`s editor in chief of “Lawfare”, which
published that landmark piece.
Mr. Wittes, thank you for making the trip to be here. Much appreciated.
BEN WITTES, EIDTOR IN CHIEF, LAWFARE: Happy to be here.
MADDOW: So, you published this piece for Mr. Baker, who recently departed
from the FBI as their counsel. And it did raise a very provocative
allegory, even though he didn`t explicitly spell that out. At least that`s
how I talked about it on TV and that`s how I saw it.
Is that how you saw it when you decided to publish it?
WITTES: Look, I think nobody reasonable can read that article with an
awareness of what`s going on in the current world, and not see some serious
parallels. So let`s tick through a couple. I wrote some down.
WITTES: Number one, the article details repeated White House/DOJ
communications, Justice Department communications on a matter at which the
White House, the president himself, had an active personal interest.
Number two, the article details using the Justice Department to gather
intelligence – using these contacts to gather intelligence – by the
president about the state of the investigation.
Number three, describes a senior DOJ official going to the White House and
warning the president that one of his senior aides has a serious problem
and is compromised. Does that sound familiar?
WITTES: Number four, the president protests to a senior Justice Department
official. These are good guys, you know –
MADDOW: He doesn`t fire them.
WITTES: Yes, and he doesn`t want to fire them. He`s really upset about
Number five, it describes the attorney general recusing. By the way, Nixon
took that relatively well compared to Trump.
Number six, he describes holding the FBI directorship over a senior Justice
Department official as a sort of inducement to handle the investigation the
way the president wants. You know, that kind of sounds familiar, too.
And, number seven, it describes the president looking and seeking from
senior Justice Department officials to know whether they have developed
adverse information about the president himself.
And I think the reason this is a powerful article is that all seven of
those items are – have direct parallels in the news of today and of the
last 18 months. And so I don`t – like, the article is an article about
history. It`s an article about how Congress experienced that set of
And, by the way, they didn`t look at it and say, you know, we don`t –
we`re not going to pay attention to what the president says. We`re going
to focus on what he does, we don`t read the tweets, not that Nixon tweeted.
They said, this is an unacceptable way for the president, who has taken an
oath to preserve and protect the Constitution and has a duty to take care
that the laws be faithfully executed, this is an unacceptable fashion for
the president to engage with an investigation of, among other things, his
White House and himself. And that is one of the articles of impeachment
against Richard Nixon.
MADDOW: And that – I want to be specific about that bottom line, because
what happens with Nixon is that it does end up being part of the articles
of impeachment against him. But we now also know in part because of some
documents that were unsealed because of litigation that you were part of to
get this stuff unsealed, we now know this was not a matter that Congress
became interested in, these are all things that prosecutors, special
prosecutor`s office, gathered information about, put together as criminal
evidence, evidence of criminal behavior by the president, and referred it
to Congress, who then put it forward in articles of impeachment.
But they saw this as criminal behavior by the president, that aside from
the question of whether or not the president could be indicted, this was a
matter not just of congressional interest, it was a matter of the president
being a felon.
WITTES: Right. So this is, I think, a really important point, and it has
immediate implications for the present day. We often throw around
questions like, oh, did the president just obstruct justice? We talk in
this language that refers to specific criminal statutes or categories of
Let`s distinguish between impeding an investigation and the crime of
obstruction of justice and what – if you look at those Jaworski documents
that you were just talking about, Jaworski is interested in the question,
did the president commit a crime? Now, he eventually decides he`s going to
name him as an unindicted co-conspirator, not going to indict him while
he`s still in office. But his focus, he`s a prosecutor, his focus is on
MADDOW: And he describes them as committing crimes.
WITTES: Committing crimes. And he treats it entirely in a criminal
When that information goes to Congress, their job is not to decide, did he
commit crimes. Their job is to say, did he commit an offense that is
unacceptable in a president who has taken an oath to preserve and protect
the Constitution, and who has a duty under the Constitution to take care
that the laws are faithfully executed. That is a different question.
And part of my point here is that the impeachment question is a different
question than the criminal question. It is possible, of course, that
you`ve done both.
MADDOW: The criminal investigation can produce the grounds for
WITTES: But the question Congress should not – should be asking itself is
not, did the president commit a crime in these interactions, say, with Paul
Manafort? Because to add to all this crazy stuff that has parallels with
Watergate, what the president appears to have done, which was used – which
was we might say collude with a felon, a convicted felon to gather
intelligence on federal prosecutors who work for the United States
Department of Justice, which is to say for him, his administration.
And, you know, he – we can ask the question, how does that interact with
the criminal law? But the first and most important question to ask about
that, is that an acceptable thing for the president to do? Is it
acceptable for the president to screw up his own investigation, his Justice
Department`s investigation by doing that and then dangling a pardon in
front of that person`s face?
MADDOW: Ben Wittes is the editor in chief of “Lawfare”. Ben, thank you
for being here. I feel like this is an important time and like clarity is
priceless at this point. I really appreciate you helping us.
WITTES: Good to see you.
MADDOW: Thanks. I`ve actually never missed a handshake before. Let`s do
it again. Very good. Thanks.
We`ll be right back.
MADDOW: Over the past few weeks now, there`s been a tempest in a teapot in
the news about politics, as to whether or not Nancy Pelosi would be the
next speaker of the House. There`s been new, breathless beltway reporting
every day about how much trouble she`s in, how much trouble her party is
The reason I`m being a little snarky is because all this comes just as
Nancy Pelosi led her party to an electoral victory that will return them to
power in the House with the largest margin victory in the popular vote of
any party ever in the midterm election. No party ever in the history of
the country has won a midterm election by larger margin than Pelosi`s
Democrats just did in the House.
And so, now, obviously, Nancy Pelosi has to go, she`s in big trouble. It`s
been a little strange, the timing of this particular beltway mishegoss.
Today, despite that beltway mishegoss, Nancy Pelosi officially and
overwhelmingly received the nomination to be the speaker of the house from
the Democratic Caucus today.
Still, though, the somewhat inexplicable spin just won`t stop. Check this
out. David Nir who`s the election guru at the liberal blog “Daily Kos”, he
pointed this out today, and he was right to do so. This is “The New York
Times” headline from 2015, when Paul Ryan received his nomination to be
speaker of the House: Republicans nominate Paul Ryan as House speaker.
This is how the same newspaper covered Pelosi`s nomination. Democrats
nominate Pelosi to be speaker, but with significant defections.
All right. When Paul Ryan got that headline, he had 200 votes in favor,
and 43 against. Nancy Pelosi today received more votes in favor, and fewer
votes against than Paul Ryan did in 2015. She had 203 yes votes and 33 no
votes today from her caucus. Three more yes votes and 10 fewer no votes.
Yet she gets the big asterisk, she gets the significant defections
After David Nir pointed this out on Twitter, “The New York Times” saw fit
to change its headline. The Twitter account Editing The Gray Lady, which
monitors changes at “The New York Times” website, they caught the change
here. It goes from Democrats nominate Pelosi to be speaker with
significant defections to this: Democrats resoundingly nominate Pelosi as
speaker, but defections signal fight ahead.
OK, OK. You do you right?
The final vote for speaker on the full house floor won`t happen until
January. And even as the anti-Pelosi effort has gotten so much attention
from the beltway press and has already sputtered and failed in fairly
humiliating fashion today, it looks like we`re probably going to keep
hearing about it incessantly until it`s over and probably even after then.
I would tell you to buckle up, but don`t bother. It`s not dangerous.
MADDOW: The biggest federal prison in the country is in one of our
littlest states. The federal Correctional Institution in Fort Dix, New
Jersey, holds more than 4,000 prisoners.
But this facility, this one here, this is relatively new, and it`s starting
to rival the one in New Jersey at Fort Dix. This new one was opened in
Texas by the federal government in June of this year and apparently, it is
gigantic, as well. We just learned it`s gigantic, 2,300 people are being
held at this brand new facility in Texas. That makes it bigger than every
single federal prison in the United States except for that one old mega
prison in New Jersey.
But this big, new facility in Texas, it is not a federal prison, not
technically. What it is, is a giant de facto jail for kids who haven`t
been found to have committed any crimes.
This is the shelter built by the Trump administration to detain kids who
cross the southern border. It was built in Tornillo, Texas, during the
height of the family separation crisis when the White House realized they
didn`t have anywhere to put all the kids they had just taken away from
This was supposed to be a temporary facility. That`s how the White House
sold it to the public. They promised they were opening it in June and
would be closed by July 13th. Now, “The Associated Press” is out with a
remarkable, new report about how the Trump administration turned that
temporary shelter into a full-blown, prison-sized, gigantic detention
center for kids who haven`t committed crimes.
As of now, quote: 2,324 largely Central American boys and girls are
sleeping inside the guarded facility in rows of bunk beds in canvas tents.
Teens with identical haircuts and government issued shirts and pants could
be seen walking single file from tent to tent, flanked by staff at the
front and back. By day, minders walked the teen detainees to their meals,
showers, and recreation on the arid plot of land guarded by multiple levels
of security. At night, the area around the camp, that`s grown from a few
dozen to more than 150 tents, it is secured and lit up by flood lights.
More people are detained in Tornillo`s tent city than in all but one of the
nation`s 204 federal prisons. And yet construction continues.
Still getting bigger, construction continues.
The reason this tent city in Tornillo, Texas, is bigger than almost every
federal prison is not just because of the family separation policies,
because the White House has dialed up the requirements that need to be met
before these kids are released to anyone. That means those deliberate
policy changes with the White House have not only required the creation of
these new facilities, but they have ensured they`re going to keep getting
bigger and bigger and bigger and bigger since they`re not giving these kids
a way to get out.
More on this in a moment. Stay with us.
MADDOW: Just a bit of new reporting from the A.P. on the massive and
growing tent city in Tornillo, Texas, where our government is currently
holding more than 2,000 kids in what is basically a prison camp, holding
them there indefinitely.
A 17-year-old from Honduras who was held at the facility earlier this year
tells the “A.P.”, quote, the few times they would let me call my mom I
would tell her one day I would be free, but really I felt like I would be
there for the rest of my life. I feel so bad for the kids who are still
there, what if they have to spend Christmas there, they need a hug and
nobody is allowed to hug there.
Joining us now is Garance Burke. She`s an investigative reporter with the
“A.P.” who broke this story.
Ms. Burke, congratulations on breaking this devastating story. Thanks for
being with us tonight.
GARANCE BURKE, ASSOCIATED PRESS INVESTIGATIVE REPORTER: Thank you, Rachel.
MADDOW: So, this was supposed to be a temporary facility to address a
temporary shortage in facilities for kids. How did it become so big and
why is it still open?
BURKE: Well, it was intended to be open for just about a month, for short-
term stays, for migrant teens about to be reunited with their families.
But then, as more teens kept coming and as the Trump administration
ratcheted up the background checks required for their families, kids
started lingering there for much longer. In fact, we found some kids have
been there since June.
MADDOW: With a short-term facility ad hoc converted into what turns out to
be a long-term facility, one of the things you worry about is there aren`t
adequate services for people who are held there on a longer term basis.
You describe some pretty disturbing developments in terms of the way the
Trump administration is running this place is they basically waived some
forms of security checks, some forms of security checks for some of the
staff that are working with these kids.
BURKE: That`s right. Yes, the facility is on federal land. And so,
earlier this year, the director of the Office of Refugee Resettlement,
Scott Lloyd, personally waived the requirement for the more than 2,000
staffers working out there to go through the really rigorous FBI
fingerprint background checks.
Now, FBI officials say those are much better than, say, just running
somebody`s name through a criminal history database because you can`t lie
about your fingerprints, although you can make up somebody else`s name.
What we also found, which was surprising to us, is that there are really
very few mental health staffers out there for these kids and these are
teens who have been on a really dangerous journey, often from Central
America, they`re currently detained and so have experienced trauma.
And so, what the inspector general ended up finding in a memo that was
issued yesterday is that the combination of these two issues is really
putting the kids` safety at risk.
MADDOW: One of the things that struck me also in your reporting was a
brief mention that there are no classes for these kids. There`s no formal
classroom setting for them. This is more than 2,000 kids, they`re
teenagers. The U.S. government is holding them indefinitely and sometimes
for long periods. They don`t go to class?
BURKE: Well, yes. And, I mean, I should say this is not a prison camp per
se, this is a detention facility, but you certainly can`t leave. And
according to some lawyers I spoke with, it`s also very hard to get a
There are some educational services that are offered. There are lessons
that the private contractor provides to the kids, but those are really big
affairs. You know, 50 kids with one teacher for only an hour, a couple
hours a day. So, it`s nothing like the formal schooling that most teens
would be having at that age.
MADDOW: Garance Burke, investigative reporter with the “Associated Press”,
just critical reporting here. Thank you so much very much for making the
time to talk to us about it tonight. Thank you.
BURKE: Thank you, Rachel.
MADDOW: I should mention that Benny Thompson is the Democrat who`s the
incoming chair, will be the incoming chair of the committee that oversees
this part of the government is already making some very large noises about
the Democrats going after this issue very aggressively when they take over
in the New Year.
We`ll be right back. Stay with us.
MADDOW: The Senate part of the 2018 elections is now over. Mike Espy did
not become the next U.S. senator for Mississippi but the Democrat did
pretty well considering he was a Democratic running in Mississippi. Mike
Espy last night flipped four counties that had gone for Trump in 2016. He
outperformed Hillary Clinton in 2016 and Barack Obama in 2012 in key
In a state Trump won by 18 points, Democrat Mike Espy got within eight
points of winning last night. So, no, Democrats did not win that Senate
race last night, but they got to feel like they did all right with Espy.
They made real progress in this election.
That does it for us tonight.
Now – 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
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Copyright 2018 ASC Services II Media, LLC. All materials herein are
protected by United States copyright law and may not be reproduced,
distributed, transmitted, displayed, published or broadcast without the
prior written permission of ASC Services II Media, LLC. You may not alter
or remove any trademark, copyright or other notice from copies of the