The Last Word with Lawrence O’Donell, transcript 2/7/2017

Joan Walsh; Jonathan Alter; Catherine Rampell, Bob Ferguson, Vince Warren, Jeremy Bash


Date: February 7, 2017

Guest: Joan Walsh; Jonathan Alter; Catherine Rampell, Bob Ferguson, Vince Warren, Jeremy Bash

RACHEL MADDOW, MSNBC:  That he envisioned over 20 years ago – federal

district court. 


“Based on his record, I believe his confirmation would have a devastating

effect on not only the judicial system in Alabama, but also on the progress

we have made everywhere toward fulfilling my husband’s dream that he

envisioned over 20 years ago.


I therefore urge the Senate Judiciary Committee to deny his confirmation. 

I thank you for allowing me to share my views.”


The Reverend Martin Luther King’s widow, Coretta Scott King writing to the

Senate in 1986 when Jeff Sessions was up for a federal judgeship.


Tomorrow, he’ll be up for Attorney General.  Senator Elizabeth Warren

silenced on the floor of the Senate tonight for having the temerity to read

those words anew.


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, good

evening, Ari.


ARI MELBER, MSNBC:  Good evening, Rachel.  I just wanted to ask you, I’ve

been watching your phenomenal coverage and that unusual interview with

Senator Warren.


I’m –


MADDOW:  Yes –


MELBER:  Just curious.  Do you see this as something that escalated in a

heated moment on the floor or a sign of the way Republican Majority leader

here is going to run this Senate?


MADDOW:  I am not surprised that Mitch McConnell came up with a procedural

way to interrupt what the Senate Democrats were doing on the floor of the



He knows they’re there for the second all nighter in a row.  He knows

they’re tired, he knows that that’s a good time to try to provoke or poke



You know, that’s not politics, that’s human nature.  What I am very

surprised by, and I hope it’s viewed by Republicans as a political failure

and not as a political success.


What I am surprised by is that he chose the widow of Martin Luther King Jr.

as the hill he wanted to die on here.


As the thing that he was going to proclaim effectively obscene on the floor

of the Senate by using Coretta Scott King’s words as the way that he shut

up Elizabeth Warren.


He is exhibiting the kind of profound indifference to the racial contours

of the Jeff Session’s nomination that I wouldn’t have expected from

somebody as savvy as Mitch McConnell.


MELBER:  Wow –


MADDOW:  And so, if they did that on purpose to try to be racially

provocative, to try to stir up the racial edge and – or try to stir up

racial currents here, I think that’s scary and gross.


If they did it accidentally, I think it’s political malpractice.  But I

think that they’ve just turned this issue.


And Elizabeth Warren and the Jeff Sessions nomination into a much hotter,

more hotly contested and sort of scarier thing that it’s been up until now.


MELBER:  Yes, it was remarkable.  Do you –


MADDOW:  Yes –


MELBER:  Think it changes any votes? That’s my last question.


MADDOW:  I don’t know.  I mean, we’ve seen a lot of Republicans say they’re

willing to support Jeff Sessions from the very beginning.


Joe Manchin; Democratic senator from West Virginia had indicated that he

might support him.  I do think that Mitch McConnell put a very different

cast on it by doing this tonight. 


And I think this is going to galvanize a lot of people.  I think it’s going

to – you know, bring a lot more attention to that vote and might otherwise

have happened. 


Especially because the votes have been strong out for so long.


MELBER:  Yes –


MADDOW:  I don’t know.  Do you think this will move votes?


MELBER:  It’s hard – it’s hard to know, but I think the notion of using

procedures this way to, as she put it to you, be red-carded and say a

senator literally cannot speak on the Senate floor.


This is a floor where almost everything can be said because –


MADDOW:  Yes –


MELBER:  There’s a right to talk, it was striking.


MADDOW:  It is striking.  And so, I mean, we’ll see.  You know, Mitch

McConnell is a savvy operator.


I don’t think that he usually does stuff he doesn’t mean.  If he meant to

make this a race fight, even more than it already was over Jeff Sessions,

as you know, Katie by(ph) the door in terms of what comes next –


MELBER:  Yes, well –


MADDOW:  Yes –


MELBER:  Rachel, thank you for your coverage on that –


MADDOW:  Thanks –


MELBER:  Appreciate it –


MADDOW:  Appreciate it. 


MELBER:  We have quite an evening obviously unfolding and a lot of news to

break this hour.


More on that story.  But first, we’re looking at the lawyers here for

President Trump asking for that urgent hearing tonight, trying to get the

travel ban reinstated.


They ran into tough questions by federal judges, as did lawyers for

Washington state challenging the ban.


The Attorney General leading that challenge joins me tonight, it’s his

first interview since that hearing. 




CHRIS MATTHEWS, MSNBC:  An extraordinary legal battle over the fate of the

president’s travel ban.


LESTER HOLT, JOURNALIST:  A three-judge panel is considering arguments

about whether to keep a hold on enforcing the order.


UNIDENTIFIED MALE:  Is there any reason for us to think that there’s a real



UNIDENTIFIED MALE:  Well, the president determined that there was a real




that we’re having to fight in a court system to protect the security of our



SETH MEYERS, COMEDIAN & TELEVISION HOST:  It seems like Trump’s real rage

is he just found out there are two other branches of government.



Look, he’s not the first president to get frustrated with a ruling from a



TRUMP:  You know, sometimes the law – some things are common sense.  This

is common sense.


SEN. JOHN MCCAIN (R), ARIZONA:  The roll-out was disastrous.


UNIDENTIFIED MALE:  In retrospect, I should have delayed it just a bit.


TRUMP:  Well, everybody is talking and dealing, a lot of bad people are

thinking about let’s go in right now.


UNIDENTIFIED FEMALE:  Have you urged the president not to make false




to speak for the president, he can speak for himself and frequently does.


MEYERS:  Checks and balances? I thought it was just checks.




MELBER:  Hello, I’m Ari Melber in for Lawrence O’Donnell.  President

Trump’s travel ban hangs in the balance tonight after that pivotal hearing

before three federal judges on the ninth circuit.


The question, should the ban be reinstated or remain paused while cases

challenging its legality make their way through the courts?


Now, we have a special report for you right now on what went down tonight. 

The judges’ first question was are the doors to the court even open to this



President Trump’s lawyers arguing his views cannot be questioned in this

area.  In lawyer lingo, that means they told the judges this ban is not

even reviewable.




UNIDENTIFIED FEMALE:  Are you arguing then that the president’s decision in

that regard is unreviewable?






MELBER:  Don’t count the pause – a power clash as you’ll hear in court.


Trump’s lawyers telling the judge this is basically none of their business.


They do have some law on their side.  There are topics where courts don’t

review presidential decisions. 


But one of the questions in this case is whether the government is

conducting religious discrimination, which is typically unconstitutional.


So, a judge asked if this is a religious ban, then would the court doors be



Could someone have standing for that? The question drew a concession from

Trump’s lawyers that yes, there are Supreme Court cases including a 1972

case called Mandel that would open the court’s doors.




UNIDENTIFIED MALE:  If the order said Muslims cannot be admitted, would

anybody have standing to challenge that?


UNIDENTIFIED MALE:  I think Mandel and Din give a route to make a

constitutional challenge if there were such an order.




O’DONNELL:  Then the judges pushed further, saying the Muslim ban question

was not hypothetical, given comments by, yes, Rudy Giuliani.


This was a piece of evidence we reported Monday on THE LAST WORD because

challengers used it as evidence against Trump in their victorious hearing

that first blocked the travel ban.




RUDY GIULIANI, FORMER NEW YORK CITY MAYOR:  When he first announced, and he

said Muslim ban, he called me up and 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.




MELBER:  That was what the challenger cited last week and it worked in

their favor again tonight.


Maybe Rudy Giuliani is a secret member of the ACLU for all the help he’s

doing for their cause.


Tonight, another Republican-appointed judge pressed Trump’s lawyers on

whether they denied Giuliani’s statements.




UNIDENTIFIED MALE:  Either those kind of statements were made or they’re



Now, if they were made, but they were made not to be a serious policy

principle, I can understand that.   


But if they were made, it is potential evidence, it is the basis for an



So, I just want to make sure I know what’s on the table. 




MELBER:  That was the question, Trump’s lawyer backed down in his answer.




UNIDENTIFIED MALE:  Well, those are in the record.




MELBER:  The record is of course the foundation for arguments in this case.


The judges are basically pushing Trump’s lawyers to accept the reality that

one of their own advisors, a former prosecutor said this all grew out of a

Muslim ban.


Now, on the other hand, to be fair, the White House has stressed Giuliani

went rogue and they say the order isn’t a Muslim ban.


Now then the hearing moved from the government’s legal powers to its powers

of reasoning.


This is where the legal and political debate meet because we’re going to

hear a lot about why President Trump picked those seven countries to ban.


Tonight, a Democratic-appointed judge citing that moment in the lower court

when Trump’s DOJ lawyers couldn’t justify the threat of immigrants from

those seven countries. 




UNIDENTIFIED MALE:  The district court asked the representative of the

Department of Justice, you know, you’re in the Department of Justice.


How many federal offenses have we had – being committed by people who came

in with visas from these countries? And –




UNIDENTIFIED MALE:  The other – the other night was the answer, was there

haven’t been any.




MELBER:  Now, that’s true.  Here was the Trump lawyer’s answer in court on





UNIDENTIFIED FEMALE:  Your honor, I don’t have that information.




MELBER:  I don’t have that information.  But that information is available.


There have been no deadly attacks by immigrants from any of the seven



The judges didn’t bring up that moment to give the lawyer a hard time.


The legal reason to cite that moment is because courts may review whether a

government decision is rational.


This is considered a pretty easy review usually.  The government basically

needs a rational reason for doing something, almost any reason will do.


But the government can’t offer a bad reason like discrimination or no

reason, which could be irrational, and of course does.


And after two weeks and over 20 losses, the Trump administration is still

struggling to offer that rationale reason in court. 


A travel ban order cites 9/11, but none of those attackers are from the

seven countries. 


It cites homeland security but no other deadly terrorist attackers again

are from the seven countries.   


And tonight, Trump’s lawyers cited a federal law about vetting for mostly

European travelers to explain those seven countries.


And that maybe a tough, legal argument though, because that law had nothing

to do with native immigrants traveling from those countries.


It was a law that gave extra vetting to European travelers who passed

through the seven countries.


You can think about it like this.  If a British tourist stopped in Libya,

then the U.S. would give him extra vetting on his way to United States.


That was a security measure applied to the British tourist, not to Libyan

native immigrants.


Bottom line, this was a list of countries that were deemed dangerous to

visit, not necessarily dangerous for sending their native citizens as

immigrant terrorists to the U.S.


Now, outside the courtroom it may be an effective political tactic for

Trump to say he got this list of countries from Congress and the Obama



Even if the list was for a European visa waiver program, not for banning

native immigrants.


But folks, inside the courtroom, some judges are already probing whether

this defense is yes, rational.


As a lot of law unprecedented is still on President Trump’s side.  Because

the president does have huge immigration powers. 


But tonight, it appears some judges may further probe whether he is using

those big powers rationally.


Joining me now is Bob Ferguson; Attorney General for the state of

Washington in his first interview since that hearing tonight.


What did you think of the judges’ questioning? Do you think you will win

this next round?



I really appreciate it. 


And yes, I said from the beginning when I filed this complaint on behalf of

the state of Washington that I was confident we would prevail.


We prevailed at the federal district court level of course, I’m confident

that we’ll prevail here as well.


MELBER:  When you think about this debate over the seven countries, which

is played out publicly, politically and legally. 


Do you think the judges will dig in deep to look at how the visa waiver

program has worked or as the Trump administration argues, should they stay

out of that?


Because even if these seven countries weren’t well picked, say, we

stipulate that, there’s a lot of precedent that says the president would

have this power. 


Surely, you would concede the president could suspend immigration from all

of Saudi Arabia on September 12th.


FERGUSON:  So, Ari, I’m so glad you played in your clips that segment from

the oral argument in which one of the judges asked the Justice Department,

are you saying that the president’s actions are unreviewable and after that

long pause, the answer was yes.


Look, Ari, the president does have – to your point, broad powers when it

comes to immigration.


But those powers must be able to be reviewed for example to see if there

was a discriminating intent or motivating factor behind the signing of that

executive order.


So, frankly, as my (INAUDIBLE) said at the trial court level, that argument

by the federal government that we cannot look behind the order at all is

truly frightening.


MELBER:  But can the president suspend, say, an entire state that we’re at

war with immigrants?


FERGUSON:  Well, I’m not going to begin to – hypothetical.  I’m talking

about as a case we have right now, right?


Which is a case in which this executive order was put together even by the

administration’s own acknowledgement too quickly, without sufficient –

without sufficient thought and clearly violates the constitution, other

statutory provisions as well.


That’s why I think Judge Robart, who was appointed of course by President

George W. Bush, the trial court judge ruled in our favor.


And granted frankly, the extraordinary relief of putting a state on the

whole program.


I think the ninth circuit court of appeals is going to see it the same way.


MELBER:  Your lawyer did pretty well today, I would say.  But he did have a

real rough patch on the question about all of global Muslims who aren’t

affected by this.  Take a listen.




UNIDENTIFIED MALE:  Do you have any information as to what percentage or

what proportion of the adherence to Islam worldwide are citizens or

residents of those countries?


My quick penciling suggests it’s something less than 15 percent.


UNIDENTIFIED MALE:  I have not done that math, your honor.




MELBER:  If the vast majority of the world’s Muslims are unaffected by

this, how does your case credibly state this targets Muslims?


FERGUSON:  Sure, so the part that you did not air was Noah’s answer, which

he eventually got to.


Which is in looking at whether or not there’s a motivating factor that’s



It does not mean the action, whatever action we’re talking about has to

discriminate against everybody within a particular class.


As long as you are targeting, discriminating against a group, that is

sufficient under the law. 


The key test under the law, Ari, is whether or not, in signing the

executive order, there was a discriminatory, motivating factor behind it. 


And we think in this case the evidence is clear from President Trump’s own

words and the judges hammered on that as you pointed out later in the oral



MELBER:  Washington State Attorney General Bob Ferguson on what’s being a

busy stretch for you, thanks for joining tonight.


FERGUSON:  Thank you, Ari, have a great night. 


MELBER:  Absolutely.  I want to turn now to Vince Warren; executive

director of the Center for Constitutional Rights. 


You run an organization that has handled many such cases, including

challenging another important presidential power, the war-making power in

detention cases.


In full disclosure, we met many years ago when I worked with CCR.  But I

want to ask you, when you look at this, there is an argument that this is

the heart of presidential power. 



think that’s right, it is the heart of presidential power. 


And I think, you know, what’s clear particularly when we talk about the

discrimination question, I think the Attorney General is right in their

view that you don’t have to discriminate perfectly.


You don’t have to discriminate against everyone.  So, for example, if the

president came up with some law that said we are going to discriminate

against black people in three states in the United States, that doesn’t

cover everybody in the United States.


But it doesn’t mean it’s not discrimination.  So, I think there’s a

plausible and a very good, solid argument that they’re making that it

doesn’t have to be perfect discrimination in order for it to be

unconstitutional and problematic. 


MELBER:  There are so many different lines of attack here, which is common,

because lawyers like to put everything on the menu for a judge.


But putting your litigation hat on, which do you think are actually most

likely to get the ban permanently struck down?


WARREN:  I mean, I think there are range of questions, and I think there’s

an equal protection argument with respect to discrimination.


And I think the first amendment question with respect to religion, I think

it’s also strong.


There are a lot of – there are state court arguments, there are state

constitutional arguments, there’s a lot of stuff that’s in there.


I think the strongest piece is that President Trump and his – and his –

and his folks said pretty clearly that they wanted to create a ban.


They actually wanted to create a ban before he was the president-elect,

before he was the Republican nominee.


He’s been talking about this before he even had access to a lot of the

intelligence stuff.


So, I think it’s fair for the court to be able to look behind what his –

what his claims are now.


Particularly when you have an administration that doesn’t seem to be so

happy to tell the truth all the time and that they fudge the facts.


I think it’s actually not only within the court’s power, but I think it’s

prudent to look behind some of those.


MELBER:  Well, that was one of the roughest parts in these arguments



And at one point, the DOJ was struggling basically, to provide some of the

basic type of record evidence, just the basic facts and precedent that

you’d want to provide a judge. 


And they said back to the judge, well, this is going really fast.  And the

judge had to point out well, it’s going fast because the Trump

administration asked for this emergency hearing.


I want to actually – this is the last clip we’re going to play.  But it’s

pretty interesting, I want to play that part. 




UNIDENTIFIED MALE:  Yes, your honor.  These proceedings have been moving

quite fast and we’re doing the best we can.


I can’t –


UNIDENTIFIED FEMALE:  You’re saying the proceedings are moving fast, but

you appealed to us before you continued in the district court to develop

the record.


So, why should we be hearing this now if it sounds like you’re trying to

say you’re going to present other evidence later?




MELBER:  In your view, has there been some subpar lawyering here because

the administration has not put its best foot forward to defend this in



WARREN:  Well, I think it’s ad hoc lawyering.  I mean, in the sense that

they are making this up as it goes along.


Because the time frame, the order was issued so rashly and so badly and

without any good roll-out, everybody is scrambling to try to figure out

what the legal arguments are.


There’s one point that I think the judge made which was really interesting.


When he was asking the questions – one of the judges was asking the

questions about, well, isn’t it true that for these seven countries that

Congress’ response to them was actually to vet people more in these seven



And is there anything wrong with that, is there a changed circumstance?


You know, the judge was essentially saying, look, if it ain’t broke, why is

President Trump trying to fix it?


You have to convince me that it’s broke.  And of course, the government

lawyer couldn’t possibly do that.


MELBER:  Right, and that again goes to part of where the Justice Department

does not want to be, which is the innards of this rule.


That’s why they started by saying, don’t even look under the hood.  You

look under the hood if you had a more what?


Lawyers call tailored or targeted program, it might be more defensible. 


The question on me is whether the appeals court or the Supreme Court wants

to second-guess immigration to that degree?


CCR Executive Director Vince Warren, thanks for being here –


WARREN:  Thanks so much for having me –


MELBER:  I appreciate it.  Coming up, we do have more on the breaking news

that Rachel and I were discussing right at the top of our show. 


Elizabeth Warren being formally rebuked by Republicans on the Senate floor

for a floor speech where, among other things, she was quoting Coretta Scott





MELBER:  Another breaking news item tonight.  After President Trump ordered

that raid in Yemen which killed some Yemeni civilians, the government of

Yemen now officially is saying it is banning the U.S. from any more ground



The two countries basically had an agreement previously that was allowing

the U.S. to conduct some operations, trying to target al Qaeda in the

Arabian Peninsula.


Now, back here at home, security experts warning the president’s travel ban

is not helping make the U.S. safer either. 


We have more on that next.   




MELBER:  President Trump is obviously an unusual client.  While the Justice

Department is defending his travel ban with that hearing tonight. 


Trump continues his own public pressure campaign, suggesting any ruling

against his order would make the federal judiciary responsible for the

fallout from any terror attacks on American soil.


And then in a meeting with the National Sheriff’s Association today, Trump

insisted the ban was common sense, he hopes it won’t go before the Supreme



And then in a bizarre exchange we’re going to show you.  There was a

sheriff complaining about a state senator’s potential legislation regarding

civil asset forfeiture.


Which to be clear is about as dry as it sounds.  And then President Trump

basically said he would get involved with a threat of payback.


He didn’t even know who the legislator was yet.  Take a listen.




UNIDENTIFIED MALE:  On asset forfeiture, we got a state senator in Texas

that was – that was talking about introducing legislation to require

conviction before we can receive that forfeiture money.


TRUMP:  Can you believe that?


UNIDENTIFIED MALE:  And I told him that the cartel would build a monument

to him in Mexico if he could get the legislature signed – 


TRUMP:  Who is the state senator? You want to give his name? We’ll destroy

his career.






MELBER:  Joining me now is Jeremy Bash; Msnbc national security analyst and

former Chief of Staff to CIA Director Leon Panetta as well as at the



Good evening to you, let’s start open, any comment on what I just showed at

the president’s approach to the federal judge and the federal judiciary’s

oversight of these issues.


Which you of course dealt with on the national security side.



Look, I think the president likes to attack institutions.


He’s attacked a free press, he’s attacked the intelligence community, he’s

downgraded the role of the director of national intelligence and the joint



I think it’s all an effort so that when his policy-making goes forward,

he’s not constrained by facts, people who are experts in their field.


And that’s dangerous.  It’s dangerous for policy-making, and I think it’s

also dangerous for national security. 


MELBER:  When you look at the security side, I wonder what your

observations are having listened to that hearing.


I mean, there are certainly times where your old colleagues at the CIA or

Pentagon would say, look, keep the judges out, you know, we respect them.


But we would prefer to do our own business.  I mean, the CIA often when it

comes to areas where the rest of the government is held to account, they

have some exceptions.


Some of them well earned, some of them logical.  But what is your view of

the balance you heard in that courtroom today?


BASH:  Well, look, I think the president does deserve some deference in

matters of national security.


But I think in this case, with regard to this executive order, the national

security aspect was sort of invented at a (INAUDIBLE).


The threat was hyped.  Supposedly there are some secret information or

intelligence that would justify an emergency measure like this.


I think the administration should come forward and explain what that is,

that causes us to on an emergency basis close our borders to seven



MELBER:  Have you heard –


BASH:  So far –


MELBER:  I mean –


BASH:  We haven’t heard any –


MELBER:  You point your finger – have you heard maybe more on background

or folks who don’t want to put their name attached to it.


What the rationale is to the seven countries because as I was reporting

here in the top of the show.


There has not really been a security-based argument.  There’s an argument

that federal law dealt with visa waiver countries because of European

tourists which we’ve shown why that’s a different application to the law.


But even that is old and not about the current security threat.  Do you –

do you know of one ?


BASH:  No, I don’t, and I’ve been trying to find one.  I think we’ve been

all in this town hunting for what is – what is motivating this other than

the campaign rhetoric and the political rhetoric about a Muslim ban.


And so far, no one can come up with it.  And I would just note that viewers

should also take a look at an important filing that was made in the ninth

circuit by ten former senior national security officials.


It was made late Sunday night, it’s on their website.  It was signed by a

number of people including four people who ran the CIA.


General Mike Hayden, John McLaughlin, a career CIA analyst who rose through

the leadership ranks of the agency.


Mike Morell, also a career national security professional and analyst and

Leon Panetta, my old boss who ran both the CIA and the Pentagon.


Four men who basically argued there is no reason to protect the country in

this way.


There’s a reason to protect the country from terrorism, you do it in a

focused way, following leads and following specific threat streams.


That’s how we have prevented another 9/11 in the past 15, 16 years.  You

don’t do it through these blanket bans.


And there’s no real reason from a national security perspective to do it in

this way.


And worse, Ari, and this is what came out in their filing, it actually

would hand ISIS a major victory, so it actually can make our country less



MELBER:  Jeremy Bash, as always, appreciate your expertise, thank you.


BASH:  Thanks, Ari. 


MELBER:  Now, coming up, we have more on that breaking news.  A dramatic

turn of events on the Senate floor this evening just within the last hour

with Republicans formally voting to rebuke Elizabeth Warren.


She was given a floor speech about Senator Sessions’ nomination to be

Attorney General and she was quoting Coretta Scott King’s opposition to

Jeff Session’s 1986 nomination to be a federal judge. 




STEVE DAINES, UNITED STATES SENATOR:  This is a reminder not pertinent

necessarily to what you just shared, however, you stated that a sitting

senator is a disgrace to the department of justice. 



senator (INAUDIBLE) who said that. 


DAINES:  And this -


WARREN:  Although I would be glad to repeat it in my own words.  So quoting

Senator Kennedy, calling then nominee Sessions a disgrace is a violation of

senate rules?  It was certainly not in 1986. 


DAINES:  In the opinion of the chair it is. 


WARREN:  So let me understand then -


DAINES:  The senator is warned. 




MELBER:  And that is certainly an unusual event on the senate floor and one

that has some differing precedent, which we will get to.  But to show you

what happened, then 20 minutes later Senator Warren interrupted again, this

time by Senate Majority Leader Mitch McConnell. 




WARREN:  They are –




DAINES:  The majority leader. 


MCCONNELL:  The senator has impugned the motives and conduct of our

colleague from Alabama as warned about the chair.  Senator Warren quote

said Senator Session has used the awesome power of his office to chill the

free exercise of the vote by black citizens.  I call the senator in order

under the provision of rule 19. 


WARREN:  Mr. President? 


DAINES:  Senator from Massachusetts. 


WARREN:  I’m surprised that the words of Coretta Scott King are not

suitable for debate in the United States Senate.  I ask leave of the senate

to continue my remarks. 


DAINES:  Is there an objection? 




WARREN:  I appeal the ruling –


DAINES:  Object – objection is heard.  The senator will take her seat. 


WARREN:  Mr. President, I appeal the ruling of the chair and I suggest the

absence of a quorum. 


DAINES:  The clerk will call the roll. 




MELBER:  Then in a vote of 49-43, the senate held the vote on that

underlying issue the result being to silence Senator Warren.  Now, moments

ago she spoke out on this.  This was her first interview or really public

statement of any kind and what again was very unusual on the senate floor. 

This is an unusual circumstance in the sense that you have the conduct of a

senator about remarks of another senator who is also, obviously, up for



So there’s more than one thing going on.  But here’s how she explained it

in this new interview with Rachel Maddow. 




WARREN:  Reading that letter out loud, according to Mitch McConnell,

impugned Senator Sessions and therefore I got gavelled and was forced to

sit down and I am not allowed to speak on the floor of the senate.  I’m not

allowed to speak so long as the topic is Senator Jeff Sessions. 




WARREN:   I’ve been red carded on Senator Sessions. 




MELBER:  For more on this developing news, I’m joined by Joan Walsh and

Jonathan Alter. Joan? 


JOAN WALSH, AMERICAN AUTHOR:  It’s unbelievable.  I mean, to see her being

told to sit down was almost painful.  And the idea that a senator is above

criticism, when you nominate a senator for a cabinet position, his

colleagues cannot criticize him is kind of crazy, kind of elitist.  And

let’s remember he didn’t just silenced Elizabeth Warren, he silenced

Coretta Scott King. 


And that’s just a shocking thing to do.  On top of everything else Jeff

Sessions was not a senator when these comments by senator - the late

Senator Kennedy and the late Mrs. King were made about him.  These were

comments that came in the course of that unfortunate senate nomination for

judgeship where he was rejected by a republican senate.  So the idea that

these words that moved a republican majority senate in 1986 are now not fit

to be spoken. 


And she wasn’t just, you know, prohibited from continuing that statement,

she’s prohibited from making any statement through the rest of the debate

on Sessions.  I just didn’t know that was possible. 


JONATHAN ALTER, AMERICAN JOURNALIST:  I just think it’s profoundly stupid

of Mitch McConnell.  I mean, what has he done?  He’s shone a light on the

objections to Jeff Sessions as essentially a racist, that Coretta Scott

King, who’s still a revered figure in this country brought up now the

attention of the nation or people who are interested in politics is riveted

on this.  To use a cliche, the optics are horrendous, as they have been for

the Trump administration so far.


It’s almost like the disease of bad optics is contagious and now it’s moved

to Capitol Hill where they are doing things that defy political common

sense and normally Mitch McConnell, what everyone thinks of him is a smart

operator.  This was a dumb thing for him to do. 


MELBER:  Well and to your point, they have the votes on most of these. 


WALSH:  Right. 


MELBER:  The only thing left is a debate on the senate floor, which is not

exactly the roughest or toughest opposition tactic.  It is literally words

in a public debate that then move on to a vote.  Now we’ll put up on the

screen for folks and most people don’t know and don’t care much about rule

19, I haven’t thought about it a long time.  But it says no senator in

debate shall directly or indirectly by any form of words impute to another

senator or other senator any conduct or motive unworthy or unbecoming a



The core of the rule if you’re interested in this kind of thing is to try

to protect a little bit of comity and good faith -


WALSH:  And quorum - yes quorum. 


MELBER:  – in debate between senators. 


WALSH:  Exactly. 


MELBER:  It is not obviously at a basic level about confirmation process

where someone is leaving the senate and their - their conduct so to speak

is going to be assessed sooner or later depending on their record.  I want

to share one more thing from Senator Schumer’s office which in a late night

unusual blast.  Lot of unusual things tonight.  They say, quote, senate

republicans have regularly flaunted rule 19 in the past, republicans never

asked them to sit down this is a clear case of selective enforcement. 


Only Senator Warren accurately quoting from MLK’S widow provoked

republicans to action, Joan. 


WALSH:  Well that’s obvious.  And the point that you raised, I’m not a

lawyer, I’m not a scholar of the senate, but it’s clear that is intended to

keep, you know, certain boundaries around debate and I can understand it. 

But it’s not intended to be used in a situation like this.  And an

impartial president, or a fair minded president would have, you know,

looked at this as two senators, their having a debate and sided with

Senator Warren because that’s not the way the rule was intended to be used. 


So, and this is so interesting because I’m not sadly because I think he

should be opposed, she should be voted down because of his racial past and

his voting rights past first and foremost.  I’m not aware of a single

republican who is in danger of voting against him.  I wish I could say it

was different.  Are you, John?


ALTER:  No.  And, you know, also think back to a couple of years to when

Ted Cruz and Rand Paul and others were going at it on the senate floor and

seen some pretty harsh things as Senator Schumer indicated.  Rule 19 has

been honored in the breach, a fair amount in recent years.  So for them to

choose this occasion -


MELBER:  Right. 


ALTER:  – to shine a light on it in this way is perplexing.  We would not

be talking about this.  It’s not as if the attention of the world was

riveted on the senate floor tonight. 


WALSH:  Right. 


ALTER:  This was - this was the last stages -


MELBER:  Right. 


ALTER:  – of something that’s a done deal, Sessions is going to get

confirmed -


MELBER:  And the underlying issue Jonathan -


ALTER:  Yes. 


MELBER:  – is of course the questions that did dog then Prosecutor

Sessions when he was up for the federal judgeship, which is there were

accusations made on the record, some under oath, that he had made a lot of

racially incendiary comments, that he was basically having difficulty with

black colleagues within the prosecutor’s office.  Now, in fairness, there

was a strenuous rebuttal of that at the time and they continue to rebut

that.  That is something that is up for debate. 


I just wonder as final thought to you John and Joan you’re staying with us

for the program - I wonder how do you talk about any of that fairly, right,

without raising the prospect of impugning him as a nominee. 


WALSH:  Right. 


MELBER:  In other words whether you were on the attack or defense, you’re

going to be discussing that alleged conduct. 


ALTER:  Of course.  And, you know, when you’re talking about confirming

somebody for a position that is this important, to say that, oh, but this

big chunk of his record, what lead him to be denied a federal judge in the

past, that’s off limits -


WALSH:  Now he’s senator. 


ALTER:  Yes, because - because now he’s protected by being in the club. 


WALSH:  Right. 


ALTER:  Well I don’t think the American public responds very well to the

club protecting people from basic accountability.  Almost think that

McConnell wants to polarize this a little bit, wants to rally the Trump

folks who are behind Sessions so that he has some really adamant supporters

when he goes into that job at the justice department. 


MELBER:  Wow.  Jonathan Alter, thank you for joining us.  Joan stays. 

Coming two weeks in and we do have some new polling here about what

Americans think of Donald Trump’s presidency and whether the honeymoon is





MELBER:  Here’s something you may not have seen yet.  The federal official

in charge of implementing President Trump’s travel ban, Homeland Security

Secretary John Kelly, said something interesting.  He now says it would

have been better to roll out the ban differently. This was before the House

Homeland Security Committee today.





this is all on me by the way, I should have delayed it just a bit so that

so that I could talk to members of Congress, particularly the leadership of

committees like this to prepare them for what was coming.




MELBER:  Credit where it’s due and whatever amount of credit may be due,

but that is useful testimony from a public official.  The roll-out, which

was widely known as confusing that’s been well documented.  Secretary

Kelly’s comments though are still at odds with the way President Trump has

been describing it.  This is his recently - that’s two days ago.





very smooth.   We had 109 people out of hundreds of thousands of travelers

and all we did was vet those people very, very carefully.




MELBER:  Now typically even when there are disagreements or missteps  it is

early on for this administration and voters tend to give new

administrations something of a honeymoon period.  We checked today and it

looks like that is not happening. 51 percent of Americans now disapprove of

how President Trump is handling his job. 42 percent approve.   That’s

according to Quinnipiac Poll.   Gallup tracking shows 54 percent

disapproval while 42 percent approved.


To put this in some context The Word Team looked at this today.  It took

922 days for President Obama’s approval rating to fall to 42 percent in

Gallup.  Donald Trump has been in office 19 days.  Now coming up we have a

pop quiz for you.  What reportedly bothered President Trump most about this

SNL sketch?  The answer coming up.




MELBER:  Question.  President Trump was most bothered by which part of this

SNL skit?




BOBBY MOYNIHAN:  I want to ask about the travel ban on Muslims.


MELISSA MCCARTHY:  It’s not a ban.


MOYNIHAN:  I’m sorry?


MCCARTHY:  It’s not a ban.  The travel ban is not a ban which makes it not

a ban. 


MOYNIHAN:  But you just called it ban. 






MELBER:  Newly disclosed court documents raising some questions about

potential conflicts of interest within the Trump Whitehouse.  This is all

part of a $150 million libel sued filed by First Lady Melania Trump.  The

First Lady going after a company that publishes the British tabloid Daily

Mail over an article they have retracted.  Now Mrs. Trump’s role as First

Lady is not explicitly mentioned but the complaint refers to an opportunity

she had “to launch a broad-based commercial brand in multiple product

categories.  Each of which could have garnered multi-million dollar

business relationships for a multi-year term during which plaintiff is one

of the most photographed women in the world. 


Joan Walsh is back with us and also joining me is Catherine Rampell of the

Washington Post.  I will start from a criticism here of Richard Painter who

was an ethics lawyer for George W. Bush, who I should mention is also suing

the Trump Administration over some of these issues.  But he says look

there’s never been a First Lady of the U.S. who insinuated she intended to

make a lot of money because of the once in a lifetime opportunity of being

First Lady.  And since we’re talking lawsuits, we’ll give you the rebuttal

and then your guys (INAUDIBLE) Catherine Charles Harder who is Melania

Trump’s attorney and a top, well-known attorney in these kind of libel

cases says look the First Lady has no intention of using her position for

profit and will not do so.  It’s not a possibility.  Your thoughts




lawyer should read his own complaint is what I would say.  I mean if you

look at the complaint it says this is a once in a lifetime opportunity in

which she will have a multi-year experience in which she will be among the

most photograph women in the world.  And that is the perfect time to launch

her own brand and to capitalize on that fame.  So I don’t know how her own

attorney can argue, you know, within the span of 24 hours seemingly that

she either wants to capitalize on her new found fame and profile and

doesn’t want to.


MELBER:  You’re right and Joan some of them is second nature to them.  And

by the way there’s nothing wrong with that if you don’t want a career in

public service. 


WALSH:  Sure.


MELBER:  No greater -


WALSH:  Go after the money.


MELBER:  Yes.  No greater American icon than Jay-Z said I’m not a

businessman.  I’m a business man.   And Trump was a business, the name and

the brand, the family.   Nothing wrong with that.


WALSH:  Right.


MELBER:  And we have a country that rewards that.


WALSH:  Right.


MELBER:  It seems the problem is the transition out of private gain into

public service.


WALSH:  And this is beyond the transition.  I mean there’s an official

transition.  But this is really she’s in the Whitehouse.  There - well

rarely buy, you know, She is the First Lady. And I just can’t believe that

the lawyer would undercut his only real argument for damages here.   I also

find it hard to believe, Ari, that this allegation, which we don’t even

dignify by repeating, was widespread enough to actually cost her

opportunities.  So I think it’s terrible –I mean, this is kind of an

inconsistent argument.  I think it’s terrible for her to be looking for

those opportunities but I also find it hard to believe that this, which did

not circulate that widely, people, found the charges radioactive could be

blamed for costing her millions in opportunities, even if she decided it

was appropriate for her to pursue them.


MELBER:  Right and Mrs. Trump, Catherine has a very strong case on the

underlying issue.  The question of it is it worth that many millions and so

the lawyers tend to do some inflation. But we could put on the screen in

the larger context, you know, they have applied for trademarks for make

America great, keep America great, all these kind of things, which show a

Nexus of the political messaging with wanted to make money.  You don’t need

the trademarks something to get votes, Catherine.


RAMPELL:  You don’t need to trademark something to get votes.  I mean this

is why we have been having this discussion for months now about the

importance of having Donald Trump then candidate now president extricate

himself from the enormous conflicts of interest that he has created.  That

there’s a reason why we don’t want people who are in public service to be

putting themselves in position to directly benefit from that service, at

least in a financial sense.


MELBER:  Catherine Rampell and Joan Walsh thank you both for joining

tonight, appreciate it.


WALSH:  Thanks Ari.


RAMPELL:  Thank you.


MELBER:  That does it for The Last Word.  As always you can e-mail me at

ari I’m tired.  I think I’m going to get some rest.  But you

should stay up because The 11th Hour with Brian Williams is live starting





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