The end of the beginning for Michael Cohen. TRANSCRIPT: 2/26/19, The Rachel Maddow Show.

Guests:
Rebecca Ballhaus, Karen Bass
Transcript:

CHRIS HAYES, MSNBC HOST:  Ton of fun.  You can download it wherever you get

your podcast. 

 

We – that is ALL IN for this evening. 

 

“THE RACHEL MADDOW SHOW” starts right now. 

 

Good evening, Rachel.

 

RACHEL MADDOW, MSNBC HOST:  Did I flummox you? 

 

HAYES:  Every time I do a podcast tease.  See, we do podcast tease and

you`re out there and like stretch and tease.  And when we don`t do it,

you`re there. 

 

But when we do the podcast tease and like at the end of it, like, you can

get wherever your podcast, like stretch, which is iTunes and TuneIn – 

 

(LAUGHTER)

 

MADDOW:  Yes, I just want everybody to realize at home you`re doing this in

real time.  This is live television.  Somebody is in your ear piece saying,

we don`t know where Rachel is. 

 

HAYES:  Exactly. 

 

MADDOW:  You know, I do this just to keep you on your toes. 

 

HAYES:  You do a good job tonight. 

 

MADDOW:  And I owe a lot, my friend.  Thank you very much.

 

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

 

All right.  I told you this week was going to be nutty, right?  In terms of

the amount of news we would be dealing with over the course of this week

but also every day.  I don`t like to say I told you so, but I told you so. 

So, it is, in fact – it is, in fact, becoming a nutty news week and today

has been sort of insane. 

 

But let`s just jump right in.  There`s a lot going on.  I got to tell you

also the next 24 hours are going to be even nuttier than today was, so we

also need to pace ourselves a little bit. 

 

But let`s start with what the House has just done tonight.  The House of

Representatives tonight has just voted to block the president`s declaration

of a national emergency, which is the way he`s trying to go around Congress

to try to build a wall between the United States and Mexico.  Now, this

vote tonight in the House is not a surprise. 

 

Today in Congress, the top U.S. military commander with responsibility for

homeland defense said directly that there is no military threat related to

anything that`s going on on the southern border, which is a specific way of

undercutting the president`s assertion that there is some sort of national

security emergency there. 

 

This is also not a surprise in terms of this vote tonight because the House

is also now controlled by Democrats.  The Democrats in the House are

unanimous that this emergency declaration from the president about the

border is bogus and potentially illegal.  So, all Democrats voted against

the president on his emergency declaration tonight in the House. 

 

What was perhaps a surprise is that more than a dozen Republican members of

the House crossed over to vote with the Democrats on this resolution.  The

final vote ended up tonight being 245-182.  Again, that is the vote to

block the president`s emergency resolution. 

 

Well, now this heads to the Senate.  They have no choice in the Senate but

to vote on the same thing the House just voted on.  The Democrats we think

will all vote for it.  If four Republicans cross over to vote with the

Democrats, this thing that just passed the House will also pass the Senate. 

 

So far, already three of the four Republican votes needed in the Senate are

committed.  So, it really looks like the president will likely lose on

this, that the Congress will block him from declaring his emergency so he

can build his wall.  It`s just a matter of how long it`s going to take for

him to lose.  The Senate has 18 days to take up this matter and they do not

have a choice, they have to vote on it now that it has passed the House. 

 

Now, on a related matter, you should also know that the House today issued

its first subpoenas to the Trump administration since the Democrats took

control in Congress.  The subpoena – the subpoenas issued today are for

documents from various federal agencies.  Documents that the Trump

administration has thus far refused to hand over to Congress.  All on the

issue of immigrant kids being taken away from their parents at the border. 

 

There was a very dramatic hearing on that subject today.  The Democratic

chairman of the judiciary committee, Jerry Nadler, put it bluntly.  He

described that policy as kidnapping. 

 

Again, though, that issue has generated the very first subpoenas from the

new Democratic-controlled Congress to the administration.  The

administration has been having a very hard time coming up with a single

story to tell about the origin of that policy of taking kids away from

their parents, let alone the implementation of that policy, and

specifically they have not been able to explain how exactly they lost track

of so many kids, why they didn`t bother in the first place to track which

kids belonged to which parents.  So, Democrats in Congress are going after

that issue as aggressively as they have gone at anything since they took

over, and the issue of kids being taken away from their parents at the

border, that today the subject of the first subpoenas from this new

Congress to the administration. 

 

We`ll have more on that story ahead tonight, including a member of that

Judiciary Committee joining us live. 

 

Today also was the first day of what are expected to be three days of

testimony from the president`s longtime personal attorney Michael Cohen. 

Michael Cohen, of course, has pled guilty to nine felony charges, including

lying to Congress and two campaign finance felonies in which he and federal

prosecutors in the Southern District of New York told the federal judge

overseeing Cohen`s case that it wasn`t just Cohen who committed those

felonies, the president himself was also implicated in them. 

 

Today`s first day of testimony from Michael Cohen was in front of the

Senate Intelligence Committee, and although it happened behind closed

doors, so we don`t know directly what happened, CNN reports tonight that

one of the things that happened in that closed-door testimony is that

Michael Cohen apologized to members of the committee for having lied to

them the last time he testified to them.  Again, those lies he told to

Congress are part of the reason why Michael Cohen is about to report to

federal prison in May.  We`re expecting him not only to apologize to that

Senate intelligence committee today, but also to the House Intelligence

Committee when he testifies to them behind closed doors on Thursday. 

 

Now, beyond his apology for his previous false testimony today, we know

very little about what Michael Cohen said to the Senate intelligence

committee today.  Again, that testimony was given in closed session. 

 

That said, I think personally for me, it was a little unnerving to see Mark

Warner, the top Democrat on the Senate Intelligence Committee, the vice

chairman of the committee, he walked out toward the end of Cohen`s

testimony today and he talked to reporters very briefly about how it had

gone with Michael Cohen.  For me, it was a little unnerving, a little

unsettling that this is what Mark Warner had to say about what he heard

today from Michael Cohen behind closed doors. 

 

(BEGIN VIDEO CLIP)

 

SEN. MARK WARNER (D-VA), VICE CHAIRMAN, INTELLIGENCE COMMITTEE:  Quickly,

we`ve still got a little bit more time to finish, and the only comment I`m

going to make is that two years ago when this investigation started, I said

it may be the most important thing I`m involved in in my public life in the

Senate.  And nothing I`ve heard today dissuades me from that view. 

 

REPORTER:  Did the president commit any crimes, sir? 

 

(END VIDEO CLIP)

 

MADDOW:  And then he took no further questions. 

 

Not long thereafter, Michael Cohen himself emerged from that close closed-

door hearing with Senate Intelligence Committee members.  Cohen is not in a

position to be able to elaborate what he talked about in that closed

session.  That`s why it`s a closed session.  But he did thank everyone

staking out the hearing room and he did further raise expectations when he

testifies not behind closed doors but in an open hearing that will be

televised starting at 1:0:00 a.m. 

 

(BEGIN VIDEO CLIP)

 

MICHAEL COHEN, FORMER TRUMP ATTORNEY:  First of all, I want to thank you

for sticking around and waiting for me.  At this point in time, I really

appreciate the opportunity that was given to me to clear the record and to

tell the truth, and I look forward to tomorrow to being able to in my voice

to tell the American people my story, and I`m going to let the American

people decide exactly who is telling the truth.  So I want to thank you all

again for sticking around.  Have a good night. 

 

(END VIDEO CLIP)

 

MADDOW:  You can hear where the scrum of reporters start shouting questions

to Michael Cohen about his testimony, about what he`s going to say

tomorrow, about what he`s going to say about the president. 

 

The anticipation for what Cohen is going to say in this open hearing

tomorrow has been stoked all day today by multiple news agencies reporting

that Cohen is basically bringing a dump truck with him to describe his

years of dealings with president Trump and the Trump organization.  We`re

told that Cohen is prepared to testify on matters touching on everything

from the president`s personal behavior to the way the president has filed

or not filed his taxes to alleged criminal behavior by the president during

the time he has been president. 

 

And on that last point, which I think is maybe more important than we are

ready for heading into that testimony tomorrow, apparently Cohen is

prepared to bring documents tomorrow to Congress that specifically relate

to the campaign finance felonies for which Michael Cohen is about to go to

prison. 

 

Now, “The Wall Street Journal” has put a finer point on this than anybody

else tonight in their new reporting.  And the new reporting in “The Wall

Street Journal” tonight says that tomorrow, Michael Cohen is going to give

Congress a check, a check made out to Mr. Cohen for the purpose of

reimbursing him for the illegal hush money payments that Cohen made to

benefit the Trump campaign.  The illegal hush money payments related to

Stormy Daniels, who had said that she had had a sexual encounter with

President Trump.  That hush money payment was apparently made to stop her

from talking about that publicly before the election. 

 

Again, that is a campaign finance felony to which Michael Cohen has pled

guilty and for which he is going to prison.  Citing a person familiar with

Cohen`s planned testimony, “The Wall Street Journal” reports tonight that,

quote, in his testimony Wednesday, Cohen will provide documentation of his

reimbursement for the $130,000 payment he made to Stormy Daniels to keep

her quiet about her alleged affair with the president ahead of the

election.  “The Journal” reports tonight that Cohen will show the oversight

committee tomorrow a signed check, quote, Mr. Trump signed some of the

checks reimbursing Mr. Cohen, which Mr. Cohen began receiving after Mr.

Trump took office. 

 

So, again, that reporting tonight from “The Wall Street Journal” and,

again, this hush money stuff is not, like, the Stormy Daniels story, right? 

This is not just a salacious story about the president and Ms. Daniels and

whether or not the president allegedly had an affair or a sexual encounter

with her.  Separate and apart from any salacious or sexual content of this

story, the payoff element of this story makes this a criminal matter,

right?  This is a felony to which Michael Cohen has already pled guilty and

for which he is going to prison, and in which the president – in which

prosecutors say the president is personally implicated, right? 

 

Prosecutors have described the president as directing Michael Cohen to

commit this felony.  They have described that in court filings.  They have

described that through Michael Cohen`s allocution in open court before a

federal judge.  If Michael Cohen is going to provide documentary evidence

tomorrow to that effect, if Michael Cohen is going to give Congress

evidence tomorrow that implicates the president in having committed

financial crimes while he has been serving as president, what is Congress

supposed to do with that?  I mean, what is supposed to happen next after

hypothetically the Congress tomorrow gets evidence of the president

committing crimes in office? 

 

I mean, this is not a totally, totally unprecedented situation.  It`s

unprecedented in a lot of ways, but it at least has cousins, right?  In the

case of Vice President Spiro Agnew, federal prosecutors obtained rock solid

evidence that Vice President Agnew had taken envelopes full of cash, bribes

and kickbacks in his White House office while he was serving as vice

president.  The way federal prosecutors responded to that evidence when it

came to the vice president in 1972, 1973, is that they prepared a 40-count

indictment against Vice President Agnew and then they let the Nixon/Agnew

White House know that they had done that, that they had prepared that

indictment. 

 

Agnew and his lawyers argued publicly that Agnew couldn`t be indicted while

he was in office, but nevertheless, they then entered into secret

negotiations with the Justice Department, that Agnew would agree to leave

office, he would agree to resign as vice president in exchange for pleading

to just one of the counts that they were preparing to charge him with.  And

because prosecutors in 1973 did not throw the book at Spiro Agnew, because

they did not end up bringing that 40-count felony indictment against Vice

President Agnew, because they let him resign instead of facing that

indictment, so he only had to plead to one count, because of that

precedent, the Agnew case is controversial, but it is also the precedent

here. 

 

And if this reporting tonight from “The Wall Street Journal” is correct,

and if Michael Cohen is in fact about to hand over to an investigating

congressional committee tomorrow evidence related to the president

committing financial crimes, felonies while in office, we are now getting

to point where that Agnew precedent sort of crashes in to the current

history we are living through with this current sitting president.  So,

we`re going to have the lead “Wall Street Journal” reporter on that story

coming up here live in just a moment. 

 

I will say, though, because of everything that`s being reported in advance

of Michael Cohen`s open testimony tomorrow, because of the anticipation of

the kinds of documents that Cohen might be about to hand over, what he may

be able to testify to in terms of the president`s behavior, I do think it`s

reasonable to expect that the prospect of Michael Cohen`s open testimony

tomorrow may be causing some consternation at the Justice Department right

now, right?  I mean, this doesn`t happen very often.  But if clear evidence

of the president`s involvement in felonies since he`s been serving as

president, if clear evidence of that is made public tomorrow – I mean, the

Justice Department has to be prepared tonight for how they`re going to

react or not to the public airing of that evidence.  They`re also

presumably preparing for the possibility that this evidence may generate a

formal criminal referral from Congress concerning the president`s alleged

crimes.  They may refer this matter for prosecution to the Justice

Department. 

 

Now, in terms of whether or not the president can be indicted and can be

prosecuted for a crime, the somewhat shaky Justice Department internal

policy on that issue is based in part on the Spiro Agnew precedent.  On the

Agnew-era Justice Department guidance which said that a vice president

could be indicted but a president could not.  And I describe that as

somewhat shaky Justice Department policy, not only because of the evidence

we`ve turned out, which suggest that people involved in the initial

creation of that policy in the Agnew era, they never intended for that to

be the last word on whether or not the president can be indicted. 

 

I mean, even if you ignore the historical origins of this Justice

Department policy, which suggests this should have never led to any

permanent policy that the president can`t be indicted, even if you ignore

that interesting history about the origins of that policy, you should also

just look at what`s going on with President Trump and that policy right

now.  I mean, if this “Wall Street Journal” report tonight is correct and

Michael Cohen is in fact going to hand over financial documentary evidence

tomorrow of the president`s involvement in that illegal campaign finance

scheme, which Cohen has pled guilty to already – I mean, think about it,

this is already a case where federal prosecutors right now are butting up

against this idea that a president has nothing to fear from the criminal

law, right?  This idea that a sitting president just can`t get in trouble

for any crimes he committed, either before or during his presidency. 

 

I mean, on these specific issues, on this specific set of facts about which

Cohen is reportedly going to testify tomorrow and about which he is

reportedly going to hand over incriminating documents tomorrow, federal

prosecutors in the Southern District of New York have already told a

federal judge that the president is personally implicated in the commission

of these felony counts, right?  If there is such clarity in the Justice

Department that a president has nothing to fear from the criminal law, how

does – how do you explain that, that federal prosecutors have already told

a federal judge the president is implicated in those felonies? 

 

I mean, depending on what happens tomorrow and what evidence Michael Cohen

makes public, potentially we are getting to the part of the plot here where

we`re going to learn if there are federal prosecutors who may try to

challenge that internal Justice Department policy which says you can`t

indict a president.  If prosecutors don`t intend to try to defy or

challenge that policy directly, there is also the possibility, which is

being increasingly discussed in legal circles, that prosecutors may try to

interpret that current Justice Department policy in such a way that they

wouldn`t attempt to directly prosecute the president right now while he`s

still in office, but they might potentially bring a sealed indictment

against the president.  One that would only be unsealed once the president

was no longer in office. 

 

Now, such a move would have two advantages from prosecutors` perspective. 

First, it would effectively stop the clock on any statute of limitations,

on any crimes committed by the president, right?  That would make it so the

president couldn`t use his de facto immunity from prosecution while he`s

serving in office to run out the clock on the statute of limitations for

any of his crimes. 

 

So, that`s one benefit to this sealed indictment approach.  Of course, the

second major benefit to prosecutors if they brought a potential sealed

indictment against the president is that that could set the stage for

negotiations of the same kind that the Justice Department entered into with

Spiro Agnew in 1973, right?  Negotiations in which this office holder knows

that he is up against serious felony charges but he has this one great

advantage in his plea negotiations with prosecutors, the great advantage

that almost no other criminal defendant has, which is that this office

holder, in this case it would be the president could, like Agnew, offer to

trade away his resignation, just like Agnew did, in exchange for

prosecutors making some or all of those criminal charges go away. 

 

So, again, I think this might be a – I think what`s about to happen might

be a bigger deal than we are broadly grappling with.  On the eve of this

testimony from the president`s longtime personal lawyer, with these reports

that Michael Cohen is about to provide evidence in public and to Congress

of the president committing criminal acts while in office, it`s starting to

look like we`re getting into the kind of territory where the Agnew

precedent becomes very relevant, where the issue of the president`s

potential indictability, potential prosecutability are maybe treated as

separate matters. 

 

Maybe the president can`t be prosecuted now under Justice Department

policy, but maybe that`s a separate issue from whether or not the president

can be indicted.  And if the president can`t be indicted, is the president

allowed to essentially negotiate with prosecutors over his own fate, as it

balances against those potential criminal charges?  If that is the part we

are getting to, then this is also the part of American history where the

character and the independence of the U.S. Justice Department becomes the

most important thing we may ever need to know about this moment in American

history. 

 

I mean, just think about this from the big picture, right?  Think about

this like it`s 50 years from now and your grandkids or great grandkids are

looking back at this time in history, right?  If we are living through a

moment in which there is an active criminal in the White House, somebody

who is committing felonies while serving as president of the United States,

if we are living through a moment in American history where there is a

criminal in the White House but the Justice Department and our system of

law enforcement and oversight has integrity and is independent and acts the

way it is supposed to when confronted with bad actors like this, then the

history of this moment is the fact that there`s a criminal in the White

House and it becomes an interesting story in American history about that

criminal in the White House. 

 

But on the other hand, if there is a criminal in the White House, if there

is somebody who is serving as president of the United States and committing

felonies while holding that job, and our Justice Department and our system

of law enforcement and oversight doesn`t have integrity and isn`t

independent and goes along with it and helps to cover up those crimes,

helps to make it OK that those crimes were committed simply because the

criminal held a high office when he did it – well, in that case that means

this moment in history is not just about there being a criminal in the

White House, that will mean we have a real problem as a country.  That is

going to be harder to fix than if this is just a problem with one bad guy. 

 

So, this scandal surrounding this president and the ongoing legal troubles

of this president at one level are a human drama.  At another level, they

are an American drama, and the independence and the integrity of the

Justice Department right now is the pivot on which we decide which of those

this is.  So, this is a very delicate moment, and this is a very important

time. 

 

Tonight, a pro-Trump Republican member of congress, congressman from

Florida, got online and started threatening Michael Cohen ahead of his

House testimony tomorrow.  That has led to a burst of controversy and

discussion as to whether or not a sitting member of Congress can be legally

liable for violating the federal laws that protect against intimidating

witnesses who are participating in law enforcement proceedings, including

proceedings before Congress. 

 

Today, in a federal appeals court in Washington, D.C., the special

counsel`s office had a major and long-awaited legal victory, a bunch of

defendants and witnesses in the Russia scandal so far have tried to

challenge the appointment of special counsel Robert Mueller as

unconstitutional or somehow improper.  Mueller has thus far beaten back all

of those court challenges.  By my count there have been four or five of

them before today. 

 

Today, though, Mueller beat back the most serious one.  This was the case

involving Andrew Miller, one of the somewhat random young men who is

loosely connected to the president`s longtime political adviser Roger

Stone, who has recently been arrested and charged with seven felony counts. 

Andrew Miller had been subpoenaed by the special counsel`s office last year

to supply testimony to the grand jury.  Miller had resisted the subpoena

and then conservative legal organizations had taken up Mueller`s case as

their best hope vehicle to try to challenge the existence of the Mueller

investigation, to basically have the Mueller investigation declared

illegal, to have the whole Russia investigation annulled legally. 

 

Well, today in a unanimous ruling from a three-judge panel on the D.C.

Circuit Court, Andrew Miller and those conservative legal organizations

lost that case against the special counsel`s office.  Now they may yet

further appeal either to the full on bank D.C. Circuit or to the Supreme

Court, but as of now, they`ve lost, and it looks like as of now Andrew

Miller is going to have to respond to that grand jury subpoena and we will

find out in the end, we expect, what exactly that grand jury subpoena might

be leading toward when it comes to Andrew Miller`s testimony.  It also

means that the Mueller investigation is still batting 1.000 in terms of

defending its own existence against these various challenges. 

 

Also today, the accused Russian agent Maria Butina appeared in court in

D.C. for what many observers thought would be the end of her case. 

Butina`s lawyer told us last night her passport had been handed over to

U.S. immigration authorities in hopes to quickly facilitating her

deportation to Russia, upon which they hoped and expected to be the quick

conclusion of her case. 

 

Well, at her court hearing in Washington, it didn`t go that way. 

Prosecutors told the judge, actually Maria Butina is not done in her

Cooperation with the federal government.  They are not ready to move

forward with her sentencing.  They don`t expect to be back in court to

start her sentencing process for at least another four weeks. 

 

Now, we don`t know what she is still cooperating on, but prosecutors do say

they want more of her time. 

 

So we are in this moment, right, where we have seen all these obituaries

for the Russia investigation, all these stories about how the Mueller

investigation is wrapping up and they got nothing and it`s all coming to an

end. 

 

Turns out it all proceeds a pace, including from the special counsel`s

office specifically, but this thing that`s going to happen tomorrow in

Congress is potentially a huge deal, with Michael Cohen`s expected

testimony tomorrow we are hitting what appears to be a significant

crossroads.  If “The Wall Street Journal” is right tonight and Congress is

about to be given evidence tomorrow, physical evidence of the president

committing financial crimes while he has been serving as president, as a

country, we`re going to have to decide which way we go with that right

away.  Like right away.  Like before this time tomorrow. 

 

So let`s get to that.  The lead reporter on the story from “The Wall Street

Journal” joins us next. 

 

(COMMERCIAL BREAK)

 

MADDOW:  So here`s from “The Wall Street Journal” tonight. 

 

Quote: Michael Cohen, Donald Trump`s former lawyer, plans on Wednesday,

meaning tomorrow, for the first time to publicly accuse President Trump of

engaging while in office in criminal conduct related to a hush money

payment to a porn star.  Quote, Mr. Cohen`s planned testimony comes 13

months after “The Journal” first reported that Cohen paid $130,000 in

October 2016 to former adult film star Stormy Daniels to buy her silence

after she alleged having a sexual encounter with Mr. Trump. 

 

In December, federal prosecutors in New York for the first time directly

implicated the president in the payoff scheme, referring to him in court

papers as individual one, alleging that Trump had played a key role in the

payments.  Cohen plans to give his most detailed public account to date of

Trump`s alleged direction of the hush payments as well as how Trump was

involved in efforts to conceal them from the public weeks before the 2016

election.  Cohen also plans to allege that Allen Weisselberg, the Trump

Organization`s chief financial officer, was involved in those efforts. 

 

In his testimony on Wednesday, Cohen will provide documentation of his

reimbursement for the $130,000 payment to Stormy Daniels, which he received

in monthly installments of $35,000 throughout 2017.  In other words, while

Trump was president.

 

Quote: Mr. Cohen intends to show the panel a signed check. 

 

This the news tonight broken by “The Wall Street Journal.”  The president`s

longtime lawyer is going to show the House Oversight Committee a signed

check documenting him being reimbursed for this illegal campaign

contribution hush money scheme, which raises some questions, right?  Some

very important questions in terms of what`s about to happen next with this

presidency. 

 

If the checks to Cohen covering that illegal campaign contribution hush

money payment were checks that were signed by the president, what does that

mean legally for the president?  And if, as prosecutors say, the money for

those hush money illegal campaign contributions was falsely booked at the

Trump Organization, at the president`s business, as some kind of legal fee

when in fact it was not at all, what does that mean legally both for the

president and for the president`s business itself? 

 

Joining us now is Rebecca Ballhaus, White House reporter for “The Wall

Street Journal”.

 

Ms. Ballhaus, congratulations on this tonight.  This is an important story. 

 

REBECCA BALLHAUS, WHITE HOUSE REPORTER, THE WALL STREET JOURNAL:  Thanks

for having me. 

 

MADDOW:  So, your reporting at “The Journal” that Cohen intends to accuse

Trump of criminal conduct while in office.  So I imagine the distinction

there is between what he said in his allocution in federal court when he

accused the president of having directed the commission of this felony. 

That was something that would have happened during the campaign before he

was sworn in. 

 

You`re saying what he`s going to provide tomorrow is that the president`s

criminal involvement in this scheme persisted and extended into his time

when he was serving as president. 

 

BALLHAUS:  That`s right.  And it`s a key distinction when a lot of

lawmakers have raised questions about if you`re beginning impeachment

hearings or even looking at that, can you examine actions that were done to

win election or does it need to be actions that were committed while in

office? 

 

MADDOW:  In terms of the check that Mr. Cohen is due to show this committee

tomorrow, this is a check – is it clear from the context or from the

document itself that this check is in fact a reimbursement for Cohen`s –

Cohen putting forth money in this illegal scheme as opposed to this check

being for some kind of legal fee or legal retainer as it appears the Trump

Organization might have put it in their books? 

 

BALLHAUS:  That`s a question that we don`t yet know the answer to, and I

think the context in which Cohen puts this tomorrow is going to make all

the difference.  We do expect him to, as you mentioned, show a signed check

to the committee that is a reimbursement for the payment that he made to

Stormy Daniels in October 2016.  We don`t know if the check is going to be

marked for Stormy Daniels. 

 

I, in fact, would expect it would not be marked that way.  We don`t know if

he`s going to talk about any conversations he had with the president about

that reimbursement while he was in office.  Something like that would make

the difference in terms of making the point that the president was aware of

this Stormy Daniels payment in 2017, which the president has said he was

not. 

 

MADDOW:  If the president`s business was used essentially to try to cover

up and hide the existence of this illegal campaign contribution, right, I`m

describing it as an illegal campaign contribution because that`s what

Michael Cohen has pled guilty to when this set of facts was described in

relation to his charging documents when he pled guilty to these two

campaign finance felonies.  If this was all done, if this was all covered

up through the president`s business, what`s the significance of the

president as an officer of that business versus Allen Weisselberg who is

the chief financial officer at the Trump Organization, how is Mr.

Weisselberg play into this?  How is the president`s business potentially

implicated here as a business entity? 

 

BALLHAUS:  Well, I think we know already from the charging documents from

August that were filed in the Manhattan – by the Manhattan U.S. attorney`s

office that the – that officers of the Trump Organization are implicated. 

We`ve reported that executive one, who is named in the documents, is Allen

Weisselberg, the company`s longtime CFO. 

 

And we know that Michael Cohen is going to testify tomorrow and has already

told prosecutors that Weisselberg was involved in trying to cover up this

Stormy Daniels payment.  We also have reported that SDNY since Michael

Cohen`s guilty plea has kind of broadened its organization to look at the

Trump Organization and possible campaign finance violations by the company. 

 

I think the degree to which the president is implicated in the

investigation into the company remains to be seen.  He, of course, has

turned over management of the company to his adult sons and to Mr.

Weisselberg.  He does still retain ownership of the company, and I think

the degree to which he was involved in organizing that reimbursement and –

when he signed those checks could be really important here. 

 

MADDOW:  Rebecca Ballhaus, White House reporter for “The Wall Street

Journal.”  “The Wall Street Journal,” of course, has done absolutely

pioneering work on a number of aspects of this story as it relates to

Michael Cohen but this hush money payment in particular.  Thanks for

helping us understand your reporting, Rebecca.  We appreciate you being

here.

 

BALLHAUS:  Thank you. 

 

MADDOW:  All right.  We got much more to get to tonight.  Do stay with us. 

 

(COMMERCIAL BREAK)

 

(BEGIN VIDEO CLIP)

 

SEN. JACK REED (D-RI), ARMED SERVICES COMMITTEE:  In your opening

statement, you say, and I quote, the threats to our nation from our

southern border are not military in nature, closed quotes.  So just to be

clear, in your professional opinion, does the illegal crossing of the

border by civilians represent a military threat? 

 

GEN. TERRENCE O`SHAUGHNESSY, COMMANDER, U.S. NORTHERN COMMAND:  Senator,

first, I would say first that I do think a secure border does reduce

threats to the homeland.  Now specific to your question about is it a

military threat that is coming towards us, it is not a military threat. 

 

(END VIDEO CLIP)

 

MADDOW:  It is not a military threat.  That`s the top U.S. general for

homeland defense saying clearly today there is no military threat emanating

from the U.S. southern border. 

 

Now that, of course, is not helpful to a president who is trying to declare

the southern border to be a national emergency to justify the president

taking money from the military`s budget to instead build himself a wall

between us and Mexico. 

 

But now, this is interesting.  Today, two members of the House Armed

Services Committee sent this letter to the Pentagon demanding written

justification for the idea of using the military`s money to build the

president`s wall.  What is most interesting about this is this is a

bipartisan letter.  This is signed by John Garamendi, who is the chairman,

the Democratic chairman of that subcommittee.  It`s also signed by Doug

Lamborn, who is the Republican ranking member of that subcommittee, which

has oversight over how the military spends its money. 

 

They are demanding an answer to their letter by Friday, demanding a

justification for why the president is going to take military money to

build that wall on the basis of that so-called emergency declaration.  So

stick a pin in that.  They say nothing bipartisan ever happens anymore. 

That was bipartisan. 

 

This has been a day of a lot of unusual things happening on Capitol Hill. 

The other must-see news from Congress we`ve got coming just ahead.  Do stay

with us. 

 

(BEGN VIDEO CLIP)

 

REP. JERROLD NADLER (D-NY), CHAIRMAN, JUDICIARY COMMITTEE:  When a stranger

rips a child from a parent`s arms without any plans to reunify them, it is

called kidnapping.

 

(END VIDEO CLIP)

 

(COMMERCIAL BREAK)

 

MADDOW:  The subpoena cannon fired its first shots today.  The House today

approved the first subpoenas of the new Congress since Democrats have taken

control.  The subpoenas will require the White House to turn over records

about the Trump administration`s policy of taking kids away from their

parents at the southern border. 

 

This was a bipartisan move today.  Two Republicans voted with their

Democratic colleagues to issue these subpoenas.  The Democratic chairman of

the committee that ordered them Elijah Cummings said today that the

subpoenas are part of his committee`s job to protect kids from what he

called government-sponsored child abuse. 

 

When the Trump administration started forcibly taking little kids away from

their parents at the border, as a matter of policy, part of the moral and

legal disaster of that policy is that they made no plan to track those kids

after they took them away from their parents, let alone a plan to

eventually reunite them with their moms and dads. 

 

Today, the Democratic-led Judiciary Committee held a hearing to try to find

out why.  Most of the headlines about the testimony today were about how

senior Trump administration officials admitted they did nothing when they

were warned that family separations would harm these kids and harm their

families.  They went ahead with it anyway. 

 

But part of what was so striking about this hearing today was the way

members of Congress have started talking about the family separation issue. 

The focus was not just on the numbers of kids taken away, the statistics,

trying to get a handle on the size of the problem, from the beginning

today, it was striking.  This hearing was about what this policy did, what

the U.S. government has done under President Trump to essentially negate

the value of these families who have come to the United States, to nullify

the idea of them having meaningful family ties. 

 

It was about the impact that the Trump administration in this policy has

had on moms and dads and kids and about the outrage that came out of what

the Trump administration did when they basically decided to annul the

family bonds of these families.  To dissolve what held them together and

pretend that nothing relevant did.  No regard for their value as a family. 

No plan to put them back together again. 

 

When you treat families like their family bonds don`t matter to you and

don`t exist, it ultimately leads to criticism like this. 

 

(BEGIN VIDEO CLIP)

 

NADLER:  When a stranger rips a child from a parent`s arms without any plan

to reunify them, it is called kidnapping. 

 

REP. MARY GAY SCANLON (D), PENNSYLVANIA:  When the issue is framed as an

invasion by aliens and when we refer to children as UAC`s, it`s easier to

pretend they`re not human or worthy of compassion. 

 

CARLA PROVOST, U.S. BORDER PATROL CHIEF:  But the focus was on, first and

foremost, criminal aliens. 

 

REP. HAKEEM JEFFRIES (D), NEW YORK:  By criminal aliens, you mean human

beings, is that correct? 

 

PROVOST:  Yes, sir, illegal alien is a term in law, but, immigrants, yes. 

 

JEFFRIES:   OK.  Undocumented immigrants. 

 

REP. SYLVIA GARCIA (D), TEXAS:  Did you ever just say this really goes

against humanity, we should not be doing this to children? 

 

SCOTT LLOYD, FORMER OFFICE OF REFUGEE RESETTLEMENT DIRECTOR:  I did not see

anything along those lines, as apparent in the –

 

GARCIA:  Did you ever think of your own child and what would happen if

someone took your child from you? 

 

REP. KAREN BASS (D), CALIFORNIA:  If a parent is deported and they know

where their child is in the United States, how do they get their child

back? 

 

(END VIDEO CLIP)

 

MADDOW:  Congresswoman Karen Bass from California there at the end asking a

question that the Trump administration had no plan to answer when they

started taking kids away from their parents, how do they get their child

back? 

 

Joining us now is Congresswoman Karen Bass.  She`s a Democrat from

California, a member of the House Judiciary Committee and she`s chair of

the Congressional Black Caucus. 

 

She was here at today`s hearing on family separations. 

 

Congresswoman, it`s a really pleasure to have you here tonight.  Thank you

for joining us. 

 

BASS:  Thank you. 

 

MADDOW:  First of all, I`m struck by the fact that as far as I can tell,

these are the first subpoenas to the Trump administration from Congress

since the Democrats have taken control, and to have it happen on this

issue, to see that pointed and emotional hearing today, I just wanted to

get big picture your perspective on whether or not this is going to change,

whether this is something that can be remedied.  Whether you think Congress

can make progress on this. 

 

BASS:  Well, I absolutely think it has to be remedied, but I think there is

going to need to be legislation that absolutely requires the government to

take responsibility for reunification because you know right now the

government is not responsible.  I think that the parents that were

deported, they need to send the children back.  They also need to incur the

expense because I have been told on numerous occasions that families have

to pay to have their children flown home.

 

But one of the things that concerns me a lot, Rachel, is this category of

parents that were considered ineligible to reunify with their children. 

There is no basis for a border patrol agent to determine who is eligible or

ineligible to be a parent.  We do not treat children that way in the child

welfare system when their parents have been charged with neglect and abuse.

 

So, why on earth would we do that to parents who have no charge at all? 

 

MADDOW:  The slipperiness of this policy has made it hard I think to cover

and hard for the general public to keep track of whether or not progress is

being made and whether or not the general public outrage over this policy

is being attended by this administration.  Part of I feel like what you

were getting at today in your questioning and some of your other colleagues

on your committee as well was the issue of whether or not the

administration actually has a coherent policy on this, whether or not it

ended at a specific time.  Whether there are still ways that families are

being separated, even when the – when the administration says that the

policy broadly is over. 

 

Do you feel like you and your colleagues are getting to the bottom of

whether or not this is still happening and to what degree? 

 

BASS:  No.  I think we`re right at the surface, but I do think they have a

coherent policy.  Their policy is to punish parents and to have that be a

deterrent so that people won`t continue to come across the border.  One of

the most egregious policies I think that we will look back years from now

and say we cannot believe that our government actually did this. 

 

So I think they have a coherent policy.  I do think progress is being made

on the children that are party to the lawsuit of the ACLU, but the children

that were not involved in that lawsuit before the case was filed and after,

I`m not sure what`s happening there.  I do believe separations are

continuing because it`s not clear who they decide is a family member or

not. 

 

Does a grandmother qualify?  Does a sibling qualify?  Does an aunt qualify? 

I don`t believe they do. 

 

And they do still separate the children, and I don`t believe that they know

how many children were separated.  I believe that they are only accounting

for the children in the lawsuit, not the ones before and not the ones

after. 

 

MADDOW:  Congresswoman Karen Bass of California, thank you for your time

tonight.  I know that this is just the start with the Judiciary Committee

and with Congress in general.  I hope you`ll keep us apprised as you guys

keep digging into this.  Thanks for being here. 

 

BASS:  Absolutely.  Thank you. 

 

MADDOW:  All right. 

 

I need to tell you, since we`ve been on the air tonight, we have just

gotten an opinion, an important opinion on this question, which may be

coming up soon, which is the question of whether or not a sitting president

can be indicted.  Since I have been on the air tonight, we`ve had an

opinion issued on that subject from someone who is very qualified to take a

position on it.  I`m going to get this together in the commercial break. 

It`s just happened.  We`ll have that story for you next.

 

(COMMERCIAL BREAK)

 

MADDOW:  Former Attorney General Eric Holder reportedly mulling a potential

run for president this year.  Attorney General Holder has not yet said one

way or the other if he is going to run, but the fact that he last talked to

reporters about that possibility while he happened to be visiting Des

Moines, Iowa, tells you that is he definitely thinking about it. 

 

Tonight, however, former Attorney General Eric Holder has just made some

news for a different reason.  Since we have been on the air tonight, just a

few minutes ago amid this cascade of news about the president`s former

lawyer Michael Cohen testifying in open session tomorrow to what we`re told

to expect will be alleged criminal conduct by the president while President

Trump served as president. 

 

While we have been talking about that anticipated testimony tomorrow from

Michael Cohen, Attorney General Eric Holder has just tweeted moments ago,

quote: A sitting president can be indicted.  He wrote, quote: The

Constitution does not anticipate allowing a president who used fraud to

obtain the office to remain in power.  Executive branch paralysis during

the criminal process is not a compelling argument against the ability to

indict a president, consider the 25th Amendment, a sitting president can be

indicted. 

 

Again, Eric Holder posting that this hour. 

 

We are living through a wild moment in American politics.  We are living,

frankly, through a wild moment in American history, but there`s more to

come tonight.  Stay with us.

 

(COMMERCIAL BREAK)

 

MADDOW:  I can`t imagine you have not already called in sick on the

occasion of this, but just so you know, the Michael Cohen testimony

tomorrow is due to start at 10:00 a.m. Eastern Time.  You should absolutely

plan to watch it live right here at MSNBC throughout the duration of that

hearing.  Then we`ll see you here tomorrow night. 

 

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

 

Good evening, Lawrence. 

 

                                                                                                               

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