The Last Word With Lawrence O’Donnell, Transcript 2/6/2017

Guests:
Rick Wilson, Neera Tanden, David Frum, Jay Rosen, Jonathan Alter, Matthew Miller
Transcript:

Show: The Last Word with Lawrence O’Donnell
Date: February 6, 2017
Guest: Rick Wilson, Neera Tanden, David Frum, Jay Rosen, Jonathan Alter, Matthew Miller 

RACHEL MADDOW, MSNBC: Thiel apparently referred the – apparently, he`s 

just getting started.

Peter Thiel apparently referred the guy, so presumably he`s going to be
perfect.

That does it for us tonight, we will see you again tomorrow, now, it`s time
for THE LAST WORD, Ari Melber sitting in for Lawrence tonight. Hi Ari.

ARI MELBER, MSNBC: Hi Rachel, I only heard part of that segment, it`s
about drugs and an island, is this – and an Ibiza party or?

MADDOW: Yes, it`s like – it`s basically like a vampire novel without –

MELBER: Yes –

MADDOW: Vampires or sex, yes –

MELBER: That makes more sense. Thank you very much, Rachel –

MADDOW: Thanks Ari –

MELBER: See you soon, I am Ari Melber, I`m in for Lawrence and you will
hear from him tonight.

Also, the travel ban heading back to court in less than 24 hours as Donald
Trump attacks the judicial system on Twitter.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: The executive order will remain on hold for at least
another day.

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: We need strong programs.

UNIDENTIFIED MALE: The president has broad powers with these executive
orders, but it is not unfettered.

TRUMP: We`re up against an enemy that celebrates death and totally
worships destruction.

UNIDENTIFIED MALE: This president simply cannot accept anything that
doesn`t go his way.

UNIDENTIFIED MALE: President Trump has abused his power.

UNIDENTIFIED MALE: If you`re a judge, you`re illegitimate.

UNIDENTIFIED MALE: We don`t have so-called judges.

UNIDENTIFIED MALE: If it`s polls that don`t reflect well, they`re fake.
If it`s a news story, it`s lies

UNIDENTIFIED FEMALE: The travel ban is not a ban which makes it not a ban.

UNIDENTIFIED MALE: But you just called it a ban.

UNIDENTIFIED FEMALE: Because I`m using your words!

UNIDENTIFIED MALE: Made very clearly, did not quite have a full grasp on
how to run the White House.

UNIDENTIFIED MALE: My sense is that Bannon makes many people
uncomfortable.

UNIDENTIFIED MALE: Hello, Donald, I have arrived.

TRUMP: Hi Steve, you look rested.

UNIDENTIFIED MALE: Thank you.

(LAUGHTER)

UNIDENTIFIED MALE: The great manipulator.

UNIDENTIFIED FEMALE: The president making it clear in a tweet this
morning, “I call my own shots.”

UNIDENTIFIED MALE: Can I have my desk back?

UNIDENTIFIED MALE: Yes, of course, Mr. President, I`ll go sit at my desk,
yes.

(APPLAUSE)

(LAUGHTER)

(END VIDEO CLIP)

MELBER: Donald Trump campaigned on a vow to challenge the Washington
establishment. The general idea of changing Washington is a popular theme
even beyond Trump`s voters.

But it is hard to change something with nothing. New data suggests the
Trump administration is struggling to do the job, literally.

Consider the President Trump has only named 35 nominees for a total of 693
top posts under his control.

The political appointees that require Senate confirmation. In other words,
95 percent of federal leadership positions haven`t been filled.

While Trump certainly satisfied some of his campaign pledges through swift
executive orders, there are new reports today that he may not have read
them very closely.

Take one Trump move that`s controversial precisely because it`s not an
ideological issue. The decision to elevate a political operative onto the
National Security Council.

When voters talked about changing Washington, few wanted more politics
injected into national security.

But these reports say that Trump didn`t know he was giving Steve Bannon
that unusual promotion.

Citing, “Mr. Trump`s anger that he was not fully briefed on details of the
executive order he signed giving his chief strategist a seat on the
National Security Council.

A greater source of frustration to the president than the fallout from the
travel ban according to the “New York Times”.

Trump saying he wasn`t fully briefed. Let`s have some real talk here. The
order on the Security Council was under 3,000 words.

That is shorter than a single newspaper. The way to get briefed on it is
to read it.

The president also seemed angry today about press coverage alleging without
evidence that reporters don`t want to cover terror attacks.

(BEGIN VIDEO CLIP)

TRUMP: All over Europe, it`s happening. It`s gotten to a point where it`s
not even being reported.

And in many cases, the very dishonest press doesn`t want to report it.
They have their reasons and you understand that.

(END VIDEO CLIP)

MELBER: Well, we don`t know what the reasons are. The White House
releasing a list of 78 terror attacks that it asserts did not receive, in
its view, the proper coverage in the press.

But we took a look among those incidents sites and other 2015 Paris attack,
the shooting in San Bernardino, the Pulse nightclub attack and the Brussels
airport bombing.

You may remember them because they were widely covered. A Tyndall Report
which tracks TV coverage says they were among some of the most covered
events of the year.

President Trump also caught a lot of push-back, you probably heard about
this from Republicans over Trump`s unusual attacks on a sitting federal
judge who temporarily blocked the travel ban.

Trump writing, “the opinion of this so-called judge which essentially takes
law enforcement away from our country is ridiculous and will be
overturned.”

He also wrote this weekend, “just cannot believe a judge would put our
country in such peril, if something happens, blame him and court system,
people pouring in, bad.”

Here is Republican Senator Ben Sasse.

(BEGIN VIDEO CLIP)

SEN. BEN SASSE (R), NEBRASKA: I`ll be honest, I don`t understand language
like that.

We don`t have so-called – so-called judges, we don`t have so-called
senators, we don`t have so-called presidents.

We have people from three different branches of government who take an oath
to uphold and defend the constitution and it`s important that we do better
civics education for our kids.

(END VIDEO CLIP)

MELBER: And apart from the civics, there is growing dissent over a whole
and other controversial comment from the president this weekend.

His position toward President Vladimir Putin of Russia.

(BEGIN VIDEO CLIP)

BILL O`REILLY, FOX NEWS: Do you respect Putin?

TRUMP: I do respect him.

O`REILLY: Do you? Why?

TRUMP: Well, I respect a lot of people, but that doesn`t mean I`m going to
get along with them.

O`REILLY: Putin is a killer.

TRUMP: There are a lot of killers, we got a lot of killers. What? You
think our country is so innocent? We made a lot of mistakes.

I`ve been against the war in Iraq from the beginning –

O`REILLY: Yes, mistakes are different then –

TRUMP: Made a lot of mistakes, OK, but a lot of people were killed. So, a
lot of –

O`REILLY: All right –

TRUMP: Killers around, believe me.

(END VIDEO CLIP)

MELBER: It is true that heads of state make life and death decisions. He
mentioned Iraq there.

But on Putin, he has specifically been accused of using the state to
intimidate and target opponents, to murder and poison critics.

And to commit war crimes attempting to murder even the families of his
opponents.

Just tonight, for example, as this controversy is playing out, the wife of
a Putin opponent says her husband, Vladimir Kara-Murza fell into a coma
from being poisoned in Moscow.

Meanwhile, the Kremlin now publicly asking Bill O`Reilly to apologize for
what he said about Putin there.

All of that is the contexts for Putin being an alleged killer. And Trump`s
apparent equivalence about it drew strong rebuttals today.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: It`s up to President Trump to establish relationships
with foreign leaders, but also to recognize them for who they are.

SEN. MITCH MCCONNELL (R-KY), MAJORITY LEADER, SENATE: America is
exceptional. America is different. We don`t operate in any way the way
the Russians do.

GEN. BARRY MCCAFFREY, FORMER UNITED STATES ARMY OFFICER: I`m actually
incredulous that the president would make a statement like that.

It – one can argue that`s the most anti-American statement ever made by
the president of the United States.

(END VIDEO CLIP)

MELBER: That is quite a condemnation from a former four-star general
there. If a sitting president wants to question a potential mistakes in
U.S. foreign policy, it might be constructive.

But to do so in defense of Vladimir Putin`s alleged killings is truly one
of the more bizarre arguments in an already unusual week.

And it`s only Monday. Joining me now for more context, David Frum; senior
editor for “The Atlantic,” Rick Wilson; Republican strategist and
contributor to the “Daily Beast”. And Neera Tanden; President of the
Center for American Progress. Rick, what`s going on?

RICK WILSON, REPUBLICAN STRATEGIST: Look, Ari, I mean, we`re right now in
a situation where I think the president has run up against this wall of
reality, as I wrote in the “Daily Beast” today or yesterday, that he has
collided with reality.

There are things in this country where the rule of law still applies.
Where judges, not so-called judges, actual judges who are still seated on
the courts can tell the president that an action or an order does not meet
constitutional or legal muster, that`s what they`re doing.

This is a guy who is in a panic because of that. And so, he`s tweeting out
like an intemperate child over and over again.

This sort of Twitter dysentery of Donald Trump repeatedly trying to raise
the threat level, trying to say the judges will be responsible if there`s
an attack.

Lying outright, saying no one covers these attacks. You know, he`s – this
is a guy who is doing everything that is out of that sort of authoritarian
playbook to delegitimize every center of power in our constitutional
republic other than his Twitter account.

MELBER: Neera, you were a close adviser to Hillary Clinton. Some of what
we`re seeing is what that campaign warned about.

That there wouldn`t be a maturity or learning curve. But even putting that
political dispute to the side.

I wonder what you as a policy person think of what we`re seeing here and
what the ramifications are when you see this level of vitriol attack and
really seemingly bizarre statements that have consequences.

NEERA TANDEN, PRESIDENT, CENTER FOR AMERICAN PROGRESS: Look, I think
Donald Trump is obviously just way in over his head, and he does what he
always does.

You know, what essentially happened here is that the courts have put a stop
to and we`ll see if it`s temporary or not.

But it basically ruled incredibly and quickly against him. And, you know,
I think he sees these things in win/losses and he`s lost here.

And so he`s attacking and striking out. The problem is that, he`s – you
know, he`s now representative of the country.

And by attacking the judiciary, by – you know, essentially equating the
United States with Russia, it`s not just Americans who see this, people
around the world see it.

And I have to say, I think our allies around the world are losing
confidence and confidence in this presidency, confidence in American
leadership.

And also I think the reality here is, we just don`t know what`s happening
next.

I mean, the “New York Times” pictures really paints a picture of a White
House, a president and a White House who cannot – who do not have a grasp
on power.

They do not know what they`re doing. They can literally can`t find the
lights. And I think that he`s striking out because that is hitting close
to home because it`s –

MELBER: Right –

TANDEN: True, it`s not –

MELBER: For folks –

TANDEN: False, it`s true.

MELBER: For folks who hadn`t read the whole article yet, the “New York
Times” this morning front page saying that Trump aides are literally
meeting in the dark in the White House in rooms when they can`t find the
lights which isn`t good.

I think it`s fair to say. David Frum, reading also here from the “New York
Times”, I want to get your response on the competent issue of how things
are run.

“New York Times” reporting on Chris Christie, saying, before he was ousted
as transition chief, the Trump adviser with the most government experience
helped prepare detailed staffing and implementation plan in line with
kickoff strategies of previous Republican presidents.

It was discarded, get this, “a senior Trump aide made a show of tossing it
into a garbage can for a strategy that prioritized the daily release of
dramatic executive orders to put opponents on the defensive.”

David, every White House has a political strategy, no question. I wonder,
though, what you think of the allegation here that the notion of putting
opponents on the defensive was prioritized over good governance.

DAVID FRUM, SENIOR EDITOR, THE ATLANTIC: Well, I think it was nice for the
“New York Times” to print Chris Christie`s job application for him, that
was considerate.

(LAUGHTER)

Look, everyone`s at ten, like the guitarist in “Spinal Tap”, I want to go
to 11. Look, I`m a Putin hardliner. I was a Putin hardliner, I`m a Putin
hardliner today. I was one in 2013, and I was one in 2007.

But I know a lot of smart people who are not such hardliners, and it`s an
interesting and complicated problem.

Maybe the relationship – maybe we could achieve more things with Russia by
being a little softer.

And if we had a president who conscientiously believed that a softer
approach to Russia would be better, that would not be a view I would share,
but it would be a view that I could respect and debate.

When the president who`s advocating a soft line on Russia, who says, hey,
we are no better than Russia, is also someone who solicited aid from
Russian intelligence agencies.

That`s a different story. If you`re watching a trial, and the judge finds
for the defendant and you think the plaintiff should have won, that`s
upsetting.

But if the judge finds for the defendant when you think the plaintiff
should have won, and you – and you just watched the judge take a $50,000
present from the defendant, you feel a little differently about the whole
thing.

And that`s the situation we are – Donald Trump accepted a present from
Vladimir Putin. He solicited a present from Vladimir Putin. And now he`s
defending him. It`s not an intellectual disagreement.

MELBER: Right, and the – and Rick, I mean, the equivalence there really
underscores a part of what David is talking about.

Which is, there`s no nice way to put it, something that is suspicious. You
liken it to a trial, this would not be inculpatory evidence. This would be
bad evidence.

The fact that you`re making these equivalences. Here`s Marco Rubio, a
Republican saying basically when is a Democratic political activist been
poisoned by the GOP or vice versa?

We`re not the same as Putin, Rick.

WILSON: Look, this is a guy, there`s an abundance of evidence that from
his behavior alone that Donald Trump is compromised in some degree or
capacity by the Russians.

And you know – and the fact of the matter is, there`s vastly more evidence
that Donald Trump is a Russian stooge than there ever was that Barack Obama
was a Kenyan Muslim terrorist sleeper agent.

This is a guy who is going out of his way to destroy our alliances
throughout the world. To compromise our alliances, to wreck the
relationships we`ve had with Australia, with Britain, with European
countries.

And yet, everyday that he`s called on to talk about Vladimir Putin, it`s in
terms of respect, it`s in terms of wanting to get along. It`s in terms of
how he can make Vladimir Putin`s life just a little easier every day.

And it`s a moment, frankly, that folks who are – who have paid attention
to the Russian national behavior, not only from the cold war era, but
recently, where they kill journalists, they poison –

MELBER: Right –

WILSON: Political opponents, they shoot down civilian airliners, then
invade their neighbors. This is not something that I think represents
American values in any way whatsoever, but Donald Trump apparently does.

MELBER: Neera, take a listen to Nancy Pelosi on her theory on this. I
want to get your response. Here it is.

(BEGIN VIDEO CLIP)

REP. NANCY PELOSI (D-CA), MINORITY LEADER, UNITED STATES HOUSE OF
REPRESENTATIVES: I want to know what the Russians have on Donald Trump.

I think we have to have an investigation by the FBI into his financial,
personal and political connections to Russia.

UNIDENTIFIED MALE: OK –

PELOSI: And we want to see his tax returns so we can have truth –

UNIDENTIFIED MALE: Right.

(END VIDEO CLIP)

MELBER: Neera?

TANDEN: Look, I think she is absolutely right. And I just need to remind
everyone, it was just a few weeks ago that the CIA and our intelligence
forces writ large.

Including the FBI went public with the idea, with the facts that, or their
understanding that Donald Trump, that the Russians got involved in our
election in order to help Donald Trump become elected.

And what was his response to attack our intelligence forces? To attack the
CIA?

If that doesn`t show you there`s something obviously wrong here, that there
must be some kind of collusion, when he won`t release his taxes, we cannot
get basic information out.

And just on every policy issue, it`s not what he just said over the
weekend, it`s his position on every issue. Syria, Crimea, NATO, the EU on
each one of these issues, he takes a position.

A person who`s not particularly consistent takes a position that is pro-
Russia, and then on top of it, equates us with the Russians when they have
done these incredibly horrific acts.

And I think that`s why Democrats and Republicans, Democrats on the Hill as
well as Lindsey Graham and John McCain are launching serious
investigations.

And the question is whether they`re going to have the subpoena power to get
to the bottom of these issues.

MELBER: Well, and David, the subpoena power is key, of course, because
there are things you want to look at, some of which might not be
appropriate for public consumption.

The government deals with various layers of confidentiality, but to at
least put some of this to rest.

And if this is, indeed, something that has just gotten out of proportion,
you would think this is a White House that would want to cooperate to put
it to rest.

FRUM: Well, that`s obviously not true. Look, there`s this vast ferment of
activism that is bubbling up in the country.

And a lot of it from viewers of this network. I`m not a person – I`m a
person of the right and I still am.

I`m probably – I have different views on the capital gains tax for most of
the people viewing this program tonight. But what I would beseech those
who want to do something constructive, is to focus on two asks.

Where other movements in the past like Occupy Wall Street have fallen apart
because they had 900 asks.

If you have 900 asks, you have none. There are only two. And Neera said
it very well. The Treasury should release the president`s tax returns and
that should be a law.

And there should be independent commission headed by competent intelligence
professionals and to nominate Madeleine Albright and Michael Chertoff to do
an independent investigation with subpoena power of what happened in the
2016 election.

Ask those two things, that`s enough.

MELBER: Well, it`s –

FRUM: And don`t be distracted by anything else.

MELBER: Well, it`s a great and fair point, especially because as you know,
as you allude to, there are Congress and a bipartisan basis under federal
law can deal with the taxes issue.

Most people`s taxes are private, but you give up privacy when you serve in
the government. And a lot of people below the president, of course, have
already given up some of that.

So, we are out of time on this conversation, fascinating stuff. David
Frum, Neera Tanden, thank you for joining.

Rick sticks around, and coming up next, the terrorist who is the top secret
target of the U.S. military raided Yemen last week was not captured.

Now, he`s allegedly taunting President Trump in a new audio recording, will
explain.

And later, I have a special report that goes inside the courtroom of the
judge who blocked President Trump`s travel ban that we were just
discussing.

And I will explain why Trump lost this round.

(COMMERCIAL BREAK)

MELBER: The terrorist who was the target of the U.S. military raid
President Trump ordered in Yemen last week is now allegedly taunting
President Trump. That is next.

And later in the hour, a special appearance by Lawrence O`Donnell.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

SEAN SPICER, WHITE HOUSE PRESS SECRETARY: I think when you look at the
totality of what was gained to prevent the future loss of life here in
America.

And against our people and our institutions and probably throughout the
world in terms of what some of these individuals could have done, I think
it is – it is – it is a successful operation by all standards.

(END VIDEO CLIP)

MELBER: Sean Spicer there briefing reporters on the U.S. Navy SEAL raid in
Yemen last week. New reports, though, suggesting the operation did not
achieve at least one key objective.

Nbc News investigative journalist Cynthia McFadden reporting tonight that
the raid was actually targeting Qasim al-Raymi; the head of al Qaeda in
Yemen.

But the effort to capture or kill him was not successful. Al-Raymi is
alive in Yemen according to multiple military officials.

And he`s released an audio recording taunting President Trump saying, “the
fool of the White House got slapped at the beginnings of his road in your
lands.”

Now, while there is much we just don`t know about this raid, McFadden is
reporting on sources describing how top officials briefed President Trump
while he made up his mind.

(BEGIN VIDEO CLIP)

CYNTHIA MCFADDEN, INVESTIGATIVE JOURNALIST: Officials tell Nbc News
President Trump was told by the Secretary of Defense and the Chairman of
the Joint Chiefs of Staff that the possibility of capturing al-Raymi would
be a game changer.

And in making their case to proceed, they told the president they doubted
the Obama administration would have been bold enough to try it.

The operation was larger than any counterterrorism strike since the killing
of Osama bin Laden in 2011.

(END VIDEO CLIP)

MELBER: The White House and the Pentagon declined to comment.

Joining us now is Jason Kander; Missouri`s former Secretary of State and a
man who served as a military intelligence officer in Afghanistan in 2006.

Working on corruption and espionage investigations within the Afghan
government. Also back with us, Rick Wilson; Republican strategist and
contributor to the “Daily Beast”.

Jason, when you listened to Cynthia`s report there, first of all, the
biggest operation since the bin Laden raid, this is a very big deal that
obviously has been slightly overshadowed by a lot of other big deals in the
news.

Put this in context for us on number one, the operation, and number two,
these reports about the way the president was briefed.

JASON KANDER, FORMER SECRETARY OF STATE, MISSOURI: The way that I received
this is from the perspective of somebody who as you mentioned served on the
ground overseas.

And one of the aspects of being on the ground overseas is that you`re
putting a lot of faith, no matter who the president is, no matter who`s in
your chain of command.

You`re putting a lot of faith in the idea that everybody along the way in
the process has done everything that can be done to make your mission
successful.

And to make sure that you could be as safe as possible. None of this is
safe. So, whether you`re a Navy SEAL or a sergeant in a motor pool, you
put faith in that idea.

And so what we definitely know about this situation is that the president
didn`t go through an interagency process.

We also know that this is a president who has many times sloughed off the
importance of intelligence briefings.

And from the perspective of someone on the ground, that`s the kind of thing
that really gives you pause.

I mean, it`s not good for our operations.

MELBER: Rick, I`ll repeat my caveat which is it`s early yet. There`s a
lot we don`t know.

WILSON: Sure.

MELBER: But officials have been speaking about it to some degree and some
have been at least candid or perhaps sharing what their concerns are.

Here`s what a senior U.S. military official, granted anonymity told Nbc
News last week, “almost everything went wrong.”

“New York Times” with an article that made a similar point, “as it turned
out, almost everything that could go wrong did.” Rick?

WILSON: Well, look, this is one of these things where, you know, Donald
Trump had the final go, no-go decision on this.

But the actions that led up to this, this was obviously in planning for
quite some time. There`s a long chain of various planning cells,
intelligence operations.

You know, the entire – as Jason was mentioning, there`s an entire chain
that goes into building an operation like this.

And look, these are risky operations by their very nature. They are
dangerous, they are uncertain.

And frankly, you know, in my view, if Jim Mattis looked at this thing and
said this is worth the risk and this is worth the effort to try to capture
a very significant al Qaeda leader in Yemen, then this is a man who`s not
looking at this in a frivolous or trivial or politicized way.

But you know, regardless of what the president`s level of actual engagement
on this was, these operations are incredibly dangerous.

They`re incredibly risky. And things do go wrong and can go wrong. We
don`t know a lot about it yet.

There may be things we find out that it was rushed or pushed, we don`t know
any of that. And I think we should sort of reserve judgment on the final
elements of that until the end.

But I will say, and then to echo Jason again, this is a president who has
ignored and blown off a lot of intelligence briefings.

These should be something that is a daily part of his ritual. He should be
doing a lot more intelligence – getting a lot more intelligence briefings
and watching a lot less cable TV every morning.

MELBER: Right, and because there`s been such a reaction or I think it`s
fair to say at times overreaction to what the president says and the type
of things this president posts online, that there`s been disproportionate
attention to that.

And not perhaps as much to this story, which is why we wanted to look at it
even though we don`t know, it`s any –

WILSON: Yes –

MELBER: President faces rough odds when making some of these tough
decisions, we do know that. Before I let you go, Jason, I know, you`re
also launching a new organization called Let America Vote.

An issue a lot of people have been thinking about. The public debate over
voter suppression in the U.S. which is, of course, what your – what your
former job as an official was.

Tell me about that before I let you go.

KANDER: Sure, well, thanks for asking. We look at the fact that the
Republicans over the last several years have really made voter suppression
a key part of their strategy.

And now they`re doing that from the White House. That`s why we see
President Trump making up the idea of 3 million to 5 million illegal
voters.

It`s really about just easing the process of passing voter suppression laws
all over the country. And it is time that we stand up and fight against
it. Time that we stand up and say it`s not OK.

So, Let America Vote is being formed to make sure that wherever this
happens, anywhere across the country, that we go there and we expose the
true motivations behind it.

MELBER: Well, David Frum said he had two “asks” for viewers tonight. I
guess you might have a third.

People can decide whether they want to get involved or not. But
interesting to learn about, Jason, thank you and Rick Wilson, thanks to
you.

Now, there are over eight cases against the Trump immigration ban. Why did
it take a federal judge in Seattle to stop it on Friday?

Next, we have a special trip inside his courtroom to show you how Judge
James Robart, the completely real judge who Donald Trump attacked as a so-
called judge.

How he put the Trump administration`s arguments to the test and why Trump
lost.

(COMMERCIAL BREAK)

ARI MELBER, MNSBC CHIEF LEGAL CORRESPONDENT: The political world is on
edge waiting to see if three judges in California will continue blocking
President Trump`s immigration ban. Tonight, they announced a special
hearing tomorrow. But those judges are not deciding the original case
blocking the ban. They`re overseeing it.

This is the man handling the original case. Judge James Robart, a respected
Bush appointee, unanimously confirmed, who sparked President Trump`s irate
twitter attacks this weekend. But to understand how we got here, you have
to understand what judge Robart did to make Trump so angry. Forget
twitter. Forget much of what passes for debate on TV. Let`s go inside the
courtroom to learn exactly why Trump lost this round.

Let`s begin with one of Judge Robart`s first questions. Is this a Muslim
ban? The judge pressed challengers for more evidence than mere statements
made in the heat of the campaign.

(BEGIN VIDEO CLIP)

JAMES ROBART, UNITED STATES FEDERAL JUDGE: It seems to me that it`s a bit
of a reach to say the president`s clearly anti-Muslim or anti-Islam based
on what he said in New Hampshire in June.

(END VIDEO CLIP)

MELBER: The lawyer challenging the ban, Noah Percell, had an answer. The
answer was Rudy.

(BEGIN VIDEO CLIP)

NOAH PURCELL, WASHINGTON SOLICITOR GENERAL: We have the president`s
adviser saying on national television that, you know, the president asked
him to come up with a Muslim ban, this was after the election, asked him to
come up a Muslim ban in way that would make it legal and that`s what they
did.

(END VIDEO CLIP)

MELBER: He is referring to this.

(BEGIN VIDEO CLIP)

RUDY GIULIANI, FMR MAYOR OF NEW YORK CITY: When he first announced it, he
said Muslim ban. He called me up, he said put a commission together, show
me the right way to do it legally. What we did was we focused on instead
of religion, danger, the areas of the world that create danger for us which
is a factual basis, not a religious basis, perfectly legal.

(END VIDEO CLIP)

MELBER: That clip is important, the challengers say, because it shows an
intent to discriminate even if the order doesn`t use the word, Muslim. The
lawyer defending the ban, Michelle Bennett, insisted the ban doesn`t target
Muslims but she also said it doesn`t really matter because President
Trump`s powers are so broad he can make these decisions without court
oversight. That led Judge Robart to this question.

(BEGIN VIDEO CLIP)

ROBART: Given the breadth of authority of the executive in the area of
immigration, do you acknowledge any limitation on his or her power?

MICHELLE BENNETT, FEDERAL GOVERNMENT LAWYER: Your honor, I don`t think
your honor needs to answer that question to decide on this case.

ROBART: Well it seemed like a good question.

(END VIDEO CLIP)

MELBER: The attorney is ducking there, arguing if there are limits on the
president`s immigration powers, Trump has not reached them. And she said
congress has given huge power to the president in the amended immigration
and nationality act.

(BEGIN VIDEO CLIP)

BENNETT: We have the president acting pursuant to power that congress gave
him which means under the Youngstown still seizure cases, he`s acting at
the apex of his power.

(END VIDEO CLIP)

MELBER: She`s citing a Supreme Court case there on President Truman
seizing steel mills. And it is true that congress passed a law giving the
president the power to suspend aliens. But it also prohibited
discrimination based on nationality. Challengers say that makes the ban
illegal since it discriminates against the nationality of seven countries
which brings us to the worst moment for Donald Trump in that courtroom.

You know, sometimes the simple questions are the hardest. Judge Robart took
a step back and asked whether immigrants from those seven countries have
been arrested for terrorism.

(BEGIN VIDEO CLIP)

ROBART: How many arrest have there been of foreign nationals for those
seven countries?

(END VIDEO CLIP)

MELBER: That is a tough question because so far, the Trump administration
has no good answer which was evident.

(BEGIN VIDEO CLIP)

BENNETT: Your honor, I don`t have that information.

(END VIDEO CLIP)

MELBER: I don`t have that information. Or maybe the information just hurt
Trump`s case.

(BEGIN VIDEO CLIP)

ROBART: Let me tell you the answer to that is none, as best I can tell.

(END VIDEO CLIP)

MELBER: Now that is huge. The judge suggesting there that while the
president may have the legal power to ban some countries, he still needs a
reason. He needs a rationale. He needs facts.

(BEGIN VIDEO CLIP)

ROBART: I`m also asked to look and determine if the executive order is
rationally based, and rationally based, to me, implies to some extent I
have to find it grounded in facts as opposed to fiction.

(END VIDEO CLIP)

MELBER: That is a federal judge telling the Trump administration
alternative facts don`t fly in court. That the ban needs some rational
link to real threats not fears or made up attacks, not that anyone would
make up terror attacks.

(BEGIN VIDEO CLIP)

KELLYANNE CONWAY, COUNSELOR TO THE PRESIDENT: I bet there was very little
coverage. I bet – I bet – its brand new information to people that
President Obama had a six-month ban on the Iraqi refugee program after two
Iraqis came here to this country, were radicalized and they were the
masterminds behind the Bowling Green massacre. (INAUDIBLE) because it
didn`t get covered.

(END VIDEO CLIP)

MELBER: That kind of falsehood could hurt Donald Trump in court. Judge
Robart said he might block a ban that is irrational while Trump`s lawyer
argued the president has the power to be irrational in this key exchange.

(BEGIN VIDEO CLIP)

ROBART: To some extent I have to find it grounded in facts as opposed to
fiction.

BENNETT: Your honor, we actually don`t think you are supposed to look at
whether it`s rationally based.

(END VIDEO CLIP)

MELBER: Not supposed to look at it if it`s rationally based. You heard
that right. The Trump administration`s position is basically you got to
fight for your right to be irrational. Now why would they say that?
Partly because lawyers make every possible argument and presidents want
deference. But also for another reason.

The DOJ may realize that if the debate is about whether facts support this
ban, they could lose. In other words, even if courts find the president
has this power and it`s not a religious test, and it doesn`t violate due
process, courts could still strike it down, the ban, they could strike it
down if it`s not based on facts. And the facts are the ban only limits
immigration from countries that have never sent attackers, while ignoring
countries that have sent attackers to the U.S.

(BEGIN VIDEO CLIP)

JEFF MERKLEY, UNITED STATES SENATOR: There have been zero fatal terror
attacks carried out by immigrants from the seven nations listed in the
order. Zero. Now we have been attacked by individuals from other
countries who aren`t listed in this order. From Saudi Arabia, from the
United Arab Emirates, from Egypt and Lebanon.

(END VIDEO CLIP)

MELBER: Those are the kind of facts the judge cited. So after all the
recent noise and grandstanding and tweets, after all the chaos and
questions and confusion, the current status of the travel ban was not
decided by the loudest person in the room or the person with the sharpest
insult. It was decided quietly, dispassionately, by an independent judge.
There`s no denying this ruling`s power. It`s the kind of power that does
not need to yell to be heard.

The ruling re-opening America`s doors was heard all over the world.
Whether you support or oppose the ban that is exactly what an independent
judiciary is supposed to look like. It`s a very beautiful thing. Now up
next, Lawrence O`Donnell has something to say about Kellyanne Conway and
the press.

(COMMERCIAL BREAK)

LAWRENCE O`DONNELL, MSNBC ANCHOR: At the end of the first week of the
Trump presidency, Kellyanne Conway issued this challenge to the owners of
TV news networks.

(BEGIN VIDEO CLIP)

CONWAY: Who`s cleaning house? Which one is going to be the first network
to get rid of these people who said things that just weren`t true? Not one
network person has been let go. Not one silly political analyst and pundit
who talked smack all day long about Donald Trump has been let go. They`re
on panels every Sunday. They`re on cable news every day.

Who`s the first editorial writer? Where`s the first blogger that will be
let go that embarrassed his or her outlets? We know all their names. I`m
too polite call them out by name. But they know who they are. And they`re
all wondering who will be the first to go. It`s the election was three
months ago. None of them have been let go.

(END VIDEO CLIP)

O`DONNELL: Who will be the first? George Will. Already has been the
first. Fox news let him go two weeks ago for being consistently and
thoughtfully anti-Trump.

(BEGIN VIDEO CLIP)

GEORGE WILL, POLITICAL COMMENTATOR: Just when you think American politics
has hit rock bottom, Mr. Trump rises or stoops to the challenge of saying
there is no rock bottom for American politics.

(END VIDEO CLIP)

O`DONNELL: While Donald Trump was campaigning for president, he was also
campaigning to get George Will kicked off FOX News. Broker down political
pundit George will who was wrong almost all the time should be thrown off
FOX news, boring and totally biased. When Donald Trump won the election,
George Will`s days at FOX News were numbered.

George Will is a Pulitzer Prize winning columnist for decades has been the
best solidly conservative thinker and writer in the country. Even those of
us who sharply disagree with George Will find his columns mandatory reading
as they have been for republican and democratic presidents throughout his
career. There is no one at FOX News smarter than George Will, and now he`s
gone. The president of the United States didn`t want to see George Will on
his favorite network and now he never will.

Joining us next, Jonathan Alter and Jay Rosen, the question is, who will be
the next journalist who gets fired in the Trump war on the media?

(COMMERCIAL BREAK)

O`DONNELL: George Will, conservative columnist, called Donald Trump a
bloviating ignoramus, a buffoon, a political sociopath and history`s most
unpleasant and unprepared candidate. And Donald Trump has finally
succeeded in his campaign to get Fox News to fire George Will. So who`s
next? Joining us now Jonathan Alter, an MSNBC Political Analyst and
Columnist for the Daily Beast. Also joining us Jay Rosen, a media critic
and professor of journalism at New York University. He is the author of
Press Think, a web blog about journalism. Jay, you`ve been studying the
Trump phenomenon, trying to figure out how the media should confront it and
what tools it needs to use that are different from what we`ve seen in the
past. Now we see Kellyanne Conway coming out in a straight-on overt
attempt to try to get people fired out of this business. Where do we stand
now?

JAY ROSEN, CRITIC: Well, I think a lot of journalists think they can handle
Kellyanne Conway. They can ask her the tough question that`s going to
demolish her, of course, that never happens.

O`DONNELL: Right.

ROSEN: I think also they`re having trouble adjusting to fact there aren`t
that many Republicans who are willing to go on and defend Donald Trump.
And so the few who can speak as Trump`s defender are in more demand and
that gives her the power. I also think they`re having trouble grappling
with the fact that the production of confusion is a method that the Trump
Whitehouse is using as control and the fact that when we`re done listening
to Kellyanne Conway, we know less as viewers doesn`t seem to bother the
journalists who interview her and they`re sort of slow in accommodating
this fact. and so right now I think the Trump Whitehouse is much better at
reading the deep grammar of the press than the press is at interpreting -

O`DONNELL: What do you mean the deep grammar?

ROSEN: The deep grammar is like the logic beneath the practice. So, for
example, the fact that you need your interviewees to come back is part of
the deep grammar of journalism, right? It affects a lot of what you do but
it`s not on the surface, it`s not explained to viewers. It`s not something
that journalists would talk about very often. But certainly Kellyanne
Conway knows that and gives her an advantage because she knows she has to
be welcomed back.

O`DONNELL: But Jonathan, there`s been a Trump enemy list for years now.
I`ve been on it for six years now. He`s been trying to get me fired off
this network for six years. He would never come on this program.
Kellyanne Conway would never come on this program. There are programs on
other networks they will never go on and they are all doing very, very
well. Rachel Maddow got Kellyanne Conway once but it`s not going to be
frequent. Rachel`s doing fantastically well wthout having this constant
access journalism game.

JONATHAN ALTER, AN MSNBC POLITICAL ANALYST: Well there`s a myth that you
have to have certain people on to get good ratings. And there`s not any
direct correlation. Now that myth was fostered by the fact that every time
Trump went on in 2015 and 2016 cable networks saw their rating spike.

So that became almost like drug. You know we need to get him back to keep
these ratings high. And it was always an implicit deal. And sometimes
Trump would even make it explicit. I heard accounts from producers at
other networks before he`d go on the air he would say well you`re not going
to ask me about the birther stuff, right? We`re not going to talk about
that tonight. And the implication was if the anchor asked him about it he
wouldn`t be back the next time.

So that game him a measure of control. But now these networks don`t need
Trump. They don`t even need Kellyanne Conway for their ratings. And I
think the idea that she is somehow going to buffalo all these owners into
firing a lot of Pundits is not withstanding George Will stay. I don`t
think it`s going to happen because the countervailing force from Trump
critics out in the audience is very strong. And if they start to throwing
people on the fire their going to hear about it.

O`DONNELL: Well you know I`m off next week and I just want the world to
know it`s because I will have been disappeared by the Trump or Putin Army
that deals with reporters. We`re going to take a quick break. We`re going
to be right back.

(COMMERCIAL BREAK)

MELBER: President Trump takes on American Chords on Twitter again tonight.
That story is next.

(COMMERCIAL BREAK)

MELBER: Tonight the Justice Department filed its official brief defending
the travel ban. Now oral arguments scheduled for torn in the 9th circuit
in California. This hour Donald Trump tweeting the threat from radical
Islamic terrorism is very real. Just look what`s happening in Europe and
the Middle East, courts must act fast. Joining me now to get into it is
Matthew Miller, a former director of the Office of Public Affairs for the
Department of Justice under Attorney General Eric Holder. Good Evening to
you. Let`s start with what we`re seeing in the pushback from President
Trump. The broadest and most benign context one can give is that
presidents do battle with the courts, FDR famously had a long-running
battle that even involved court packet. President Obama criticizing
Citizens United. The notion of that tension is not new. This level of
personally picking on a judge, which recalls what happened in the campaign,
is rare, to say the least, given your time at DOJ, what do you think of
that aspect?

MATTHEW MILLER, MSNBC CONTRIBUTOR: You`re right. It`s very rare. And
what`s different is so, yes, President Obama obviously disagreed withes the
Citizens United decision, did it publicly. He never questioned legitimacy
of the courts to make that decision. And he never personally attacked a
judge the way Trump has done. What Trump has done over the weekend with
these tweets, questioning the legitimacy then moving to actually blame the
Federal Judge if a terrorist attack happens is so far beyond the pail and
actually it`s going to hurt his case in court? I think there`s a good
chance that the judge looks at, you know, let`s not look at this case on
its merits. But judges are people, too. And I think when the judge looks
at the questions about the President`s power and how the President behaves,
he make think to himself , you know, this is the time when someone needs to
rein in the President before it`s too late.

MELBER: Right, you`re talking about a boomerang. Alan Dershowitz, Harvard
Law Professor, iconoclastic legal thinker who supported a lot of executive
power, who supported torture warrants. He`s on record saying part of the
ban he believes is illegal, and yet even he had this to say tonight on our
air r about this boomeranging.

(BEGIN VIDEO CLIP)

ALAN DERSHOWITZ, HARVARD LAW PROFESSOR: It`s ridiculous and also hurts his
case tremendously. You don`t attack the integrity of the judge. That
doesn`t help you. It doesn`t help politically and it doesn`t help legally.
It will very much alienate the Appellate Court Judges. It was just dumb.

(END VIDEO CLIP)

MELBER: The idea there is tension between the branches already exist but
whether this Supreme Court or John Roberts who has held up the institution
of the court and its integrity as a goal of his tenure might feel a need to
push back harder on this kind of attack from a president.

MILLER: Yes so center of this case as you covered in an earlier segment is
the inherent power of the Presidency. That`s what the judge is looking at.
And so he`s looking and asking in general, what powers does the president
have? But I think given President Trump`s behavior, he might also look at
the question, what powers does President Trump have? When you see a
President that came into office that started by attacking the news media,
undermining and trying to delegitimize the central pillar of our democracy.
And then now his move to the courts, try to undermine and delegitimize a
court. The judge may say this President is different from other
presidents. I`m still going to make a finding based in law, based on the
facts of this case but I have to look at how the President`s behaving and
decide early on that the courts need to tell this President that there is a
limit to his power.

MELBER: Right and part of this question is what is normal and what is
abnormal? John Yu, who authored the torture memos and is another defender
of robust executive power came out today in The New York Times and said
even I have concerns about this President`s Executive Power which is a bit
like Darth Vader saying, hey, I think you guys are being a little tough
here. One planet maybe, but I don`t want to destroy the whole solar system.
I mean, when John Yu says you`re overboard, what does that tell you?

MILLER: It means you`re really overboard. John Yu is someone who said the
President had authority to torture people, just flat-out the President had
the authority in law to torture people. So when John Yu comes and says
you`ve gone too far, it`s absolutely right. The President has just
overreached with his power. And you can make a credible argument for the
President`s case here. You can make an argument for him having the power to
make these decisions on immigration. But when you look at what he said
both in a campaign and what he said in his tweets and his what supporters
have said, It gives the people suing a very good case.

MELBER: Well and as we showed in some of the footage from that hearing,
that`s what one Federal Judge was concerned about, even if you this power,
have you exercised it in such a way, such an intent it may go over the line
because of some of the rational problems. Matt Miller from DOJ, thank you
for joining as always. Always I`m Ari Melber. You can always find me on
Facebook at facebook.com/arimelber or as Lawrence O`Donnell knows you can
always e-mail me at ari@msnbc.com. I do read the inbox. That is our show
and the 11th Hour starts right now.

END