LAWRENCE O`DONNELL, MSNBC HOST: Good evening, Rachel.
And, you know what`s supposed to be the simplest day of your life in the courtroom, if -- if in America you are a criminal defendant who is pleading guilty and the prosecution is asking for no jail time? That day is supposed to be today. That was supposed to be today for Michael Flynn, and, wow.
RACHEL MADDOW, MSNBC HOST, "TRMS": Yes.
O`DONNELL: Did that get out of control fast.
MADDOW: This was like the degree of difficult -- this is like in ice skating, there`s stuff that`s hard. Whatever the degree of difficulty is for just falling down on the ice, that`s sort of what he was setting up for his trick today. But alas, that appears to have failed as well. Just incredible.
And the story of Mike Flynn and prosecutors, cooperation continues for months, he`s tied up with them.
O`DONNELL: Ninety days. Yes, here we go.
And the big question in the courtroom, did Michael Flynn commit treason? I have the answer do that. That is coming up in the next few minutes. And I`ve got to say I was kind of shocked that at first, at least, seemed like no one in the courtroom actually knew the answer to that. And after the recess, the answer got a little better, but not enough. And so, that`s what this show is for.
MADDOW: When the prosecutor -- you know what, your honor, I don`t have the statute on treason in front of me. I just need to -- yes.
O`DONNELL: Of course, I hated that he used the word statute because there is no statute on treason. It`s in the Constitution. It ain`t a written law that Congress pass the, but that`s coming up.
MADDOW: Amazing.
O`DONNELL: Thank you, Rachel.
MADDOW: Thanks.
O`DONNELL: Well, as I said, it was a scene like no other in an American courtroom today. A distinguished federal judge, first appointed to the bench by President Ronald Reagan, asking a federal prosecutor if the national security advisor to the president of the United States committed treason. And the prosecutor said, quote, because it`s such a serious question, I`m hesitant to answer it.
But the answer, the legal answer could not be simpler. But no one in that courtroom today, not the judge or any of the lawyers, seemed to know the answer to that question. Did Michael Flynn commit treason? People have been throwing around the word treason beginning in the first months of the Trump administration, and I understand why.
But this is the first time that it has been mentioned in federal court and discussed by a judge and a federal prosecutor. Judge Emmet Sullivan grew up in Washington, D.C. He went to Washington, D.C. public schools for elementary school and high school, and then he went to college locally in Washington, D.C. at Howard University. He stayed at Howard for law school.
He was appointed to his first judgeship as I said, by Ronald Reagan, that was in 1984, and he moved up to an appeals court judgeship, was moved up to it by President George H.W. Bush, and then in 1994, President Bill Clinton appointed him United States district judge for the District of Columbia. He was the first judge in history to be appointed by three consecutive presidents of the United States, two different judgeships.
And so, it fell to Judge Sullivan today to consider the sentencing of Michael Flynn, Robert Mueller`s special counsel`s office was recommending no prison time for Michael Flynn`s guilty pleas for lying to the FBI. But Judge Sullivan sees the case very differently. Judge Sullivan said today he is considering prison time for Michael Flynn.
And in a surprise move, for all of the parties of the case, the judge suspended the proceedings today to give Michael Flynn and his lawyers to give them more time, 90 days, to present the argument that Michael Flynn`s cooperation with the prosecutors has earned him no prison time. Judge Sullivan was clearly concerned about some defensive statements that Michael Flynn`s lawyers made about the way he was interviewed by the FBI. Michael Flynn`s lawyers complained in writing that Michael Flynn was not warned by FBI agents that lying to the FBI is a crime.
And so, Judge Sullivan needed to hear directly from Michael Flynn about this today. And he asked him, do you wish to challenge the circumstances on which you were interviewed by the FBI? Michael Flynn said, no, your honor. The judge said, at the time of your January 24th, 2017 interview with the FBI, were you not aware that lying to FBI investigators was a federal crime? I was not -- I was aware. The court, you were aware? Michael Flynn: yeah.
The judge said, your sentencing memorandum also states that you pled guilty before certain, quote, revelations that certain FBI officials involved in the January 24th interview were themselves being investigated for misconduct, end quote. Do you seek an opportunity to withdraw your plea in light of those revelations? I do not, your honor. Are you continuing to accept responsibility for your false statements? I am, your honor.
The judge also questioned Michael Flynn`s lawyer about this. Is it your contention that Mr. Flynn was entrapped by the FBI? Mr. Kelner: no, your honor.
The court: Do you believe Mr. Flynn`s rights were violated by the fact that he did not have a lawyer present for the interview? No, your honor.
Is it your contention that any member of the FBI raises any degree of doubt that Mr. Flynn intentionally lied to the FBI? No, your honor.
And with that, Judge Sullivan personally smacked down the president of the United States who woke up this morning thinking about Michael Flynn, and at 6:41 a.m., tweeted, good luck today in court to General Michael Flynn. Will be interesting to see what he has to say despite tremendous pressure being put on him.
There was no pressure put on him in federal court today. The judge invited Michael Flynn to withdraw his guilty plea several times, and Michael Flynn insisted that he was pleading guilty because he is guilty. And it was interesting to see what Michael Flynn had to say and what he had to say, once again, was guilty.
The judge said: Mr. Flynn, anything else you want to discuss with me about your plea of guilty? This is not a trick. I`m not trying to trick you. If you want some time to withdraw your plea or try to withdraw your plea, I`ll give you that time. If you want to proceed because you are guilty of this offense, we will finally accept your plea.
I would like to proceed, your honor. All right. Because you are guilty of this offense? Yes, your honor.
So, Donald Trump was right. It was interesting to see what Michael Flynn had to say, but it was even more interesting to see what Judge Sullivan had to say. He expressed his disgust and his disdain for the crimes Michael Flynn committed. Those were his actual words, disgust and disdain.
Judge Flynn -- Judge Sullivan said to Michael Flynn, I`m going to be frank with you. This crime is very serious. As I stated, it involves false statements to the Federal Bureau of Investigation agents on the premises White House in the West Wing, by a high-ranking security officer.
Judge Sullivan repeated those words a few times in the west wing. You could see that it deeply bothered the judge, felt sacrilege us, it seems, to the judge, that these crimes were committed in the West Wing, the location of the crimes matters to this judge.
And then came the treason moment. Judge Sullivan focused on Michael Flynn`s communication with Russia about sanctions during the transition when President Obama imposed sanctions on Russia for attacking our election. In a discussion with assistant prosecutor Brandon Van Grack, the judge said, I really don`t know the answer to this question, but given the fact that the then-president of the United States imposed sanctions against Russia for interfering with federal elections in this country, is there an opinion about the conduct of the defendant following -- the following days that rises to the level of treasonous activity on his part?
And the prosecutor said, the government did not consider -- I shouldn`t say did not consider, but in terms of the evidence that the government had at the time, that was not something we were considering in terms of charging the defendant. And the judge said, all right. Hypothetically, could he have been charged with treason?
And the prosecutor said, your honor, I want to be careful what I represent. Judge said, sure. And the prosecutor clearly was not prepared for this. And not having that information in front of me, and because it`s such a serious question, I`m hesitant to answer it.
And then, after a recess, when Mr. Van Grack had time to do a bit of legal research, he said, the government has no reason to believe that the defendant committed treason, not just at the time, but having proffered with the defendant and spoken with him through 19 interviews, no concerns with respect to the issue of treason. And Judge Sullivan said, right, right. I`ve never presided over a treasonous offense and couldn`t tell you what the elements are anyway.
There is no judge in America who has presided over the trial of a treasonous offense, not one. And that is because, as I began explaining on this program, in 2013 when people were accusing Edward Snowden of treason, it is impossible to commit treason and be convicted of treason in the United States because the Constitution defines treason this way. Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.
And so, yes, everyone who joined the Confederacy and fought against the United States in the civil war, committed treason according to the Constitution. From Robert E. Lee, on down to the lowest-ranking soldier. But as part of trying to put the country back together, none of them were charged with treason.
The other way to commit treason is to give aid and comfort to our enemies, and the courts have defined enemy to mean a country named in a declaration of war by the United States of America. And because we have not had a declaration of war since World War II, we have not had a treason conviction since the cases that arose out of World War II. The last person prosecuted for treason was an American who helped the Japanese during World War II.
In the famous Rosenberg case where Julius were found guilty and put to death for spying for the Soviet Union, they were never charged with treason. They were charged with espionage. What is so shocking about what we heard today in court is, first of all, that it has come to this, a discussion of treason in a federal court in Washington, D.C., over the conduct of President Trump`s first national security advisor.
But it`s also kind of shocking that no one in that courtroom of legal scholars actually knows what treason is, including the special prosecutor who, after his research -- after his research, still didn`t realize that the reason Michael Flynn could not be charged with treason had nothing to do with anything that he said in his 19 interviews with the prosecutors. Charging Michael Flynn with treason was impossible from the start. Russia is not an enemy of the United States as identified in a declaration of war against Russia.
We are giving aid and comfort to Russia every day. Every Coca-Cola executive would be guilty of treason if giving aid and comfort to Russia was a crime, because Coca-Cola has been giving aid and comfort to Russia for decades now. But treason is the place where so many minds go, including trained legal minds, when they look at the activity in Trump world.
Betrayal, that`s what the Flynn case is about, not treason. Treason is a legal term, betrayal isn`t. We`ve all been betrayed.
Michael Flynn was betraying his country. Michael Flynn was betraying his office. Michael Flynn was betraying his oath of office. And betrayal is all over Trump world.
That is why the Trump Foundation is being dissolved now, because the Trump Foundation betrayed its legal obligation, betrayed its mission like all foundations, the Trump Foundation had a legal obligation to use the charitable money contributed to the Trump foundation for charity and, instead today, New York State Attorney General Barbara Underwood issued a statement saying their investigation found, quote, a shocking pattern of illegality involving the Trump Foundation, including unlawful coordination with the Trump presidential cal pain, repeated and willful self-dealing and much more. This amounted to the Trump Foundation functioning as little more than a checkbook to serve Mr. Trump`s business and political interests.
The New York state attorney general is suing the Trump Foundation and its officers, continuing to sue them, seeking $2,800,000 in restitution and penalties as well as a ban on Donald Trump`s children from ever serving on the board of other New York charities. That lawsuit will continue.
Betrayal is everywhere you look in Donald Trump`s life. Ask his wives. Ask the students of Trump University who he defrauded and then had to agree to pay $25 million in a settlement, thanks to the efforts of the New York state attorney general and others. Look at the Trump foundation. Look at Michael Flynn. Betrayal is what all of that is about.
After this break, we`ll be joined by Jill Wine-Banks, David Corn, and Daniel Goldman with their reaction s to what happened in Judge Sullivan`s courtroom today.
(COMMERCIAL BREAK)
O`DONNELL: Tonight, Federal Judge Emmet Sullivan is beginning his 90 days of thinking about whether he should lock up this guy.
(BEGIN VIDEO CLIP)
MICHAEL FLYNN, FORMER NATIONAL SECURITY ADVISER: We do not need a reckless president who believes she is above the law.
(CHEERS AND APPLAUSE)
Lock her up, that`s right. Yes, that`s right, lock her up.
(CROWD CHANTING)
(END VIDEO CLIP)
O`DONNELL: Leading off our accumulation tonight, Jill Wine-Banks, former assistant Watergate prosecutor, David Corn, Washington bureau chief for "Mother Jones", and Daniel Goldman, former U.S. district attorney from Southern District of New York. All are MSNBC contributors.
And, Jill, I want to get your reaction to what happened in the courtroom today. It`s supposed to be the smoothest thing you could possibly walk into, sentencing where prosecutors recommending no incarceration and here we are.
JILL WINE-BANKS, FORMER ASSISTANT WATERGATE SPECIAL PROSECUTOR: Well, I think I predicted that there was a big mistake made by the lawyers for Flynn in stating that the FBI had misled him, that he hadn`t been warned. You can`t do that in a document that starts out by saying that you are a 33-year veteran, that you`re a general, that you were the director of national security for the United States of America, but you didn`t know that it was illegal to lie to the FBI.
And I felt that the judge might react very negatively to that. I didn`t predict quite this much negativity, but I think that it was deserved, that you can`t have it both ways. Was he trying to get a pardon and please Donald Trump at the same time as he was fully cooperating?
Obviously, he deserves something for his cooperation, but he should not have done what he did. And a lot of this reminded me of Watergate, where the crimes were committed in the White House, were committed in the attorney general`s office, and that somehow did make it seem worse. I understand why Judge Sullivan was so upset about the location of the crime.
O`DONNELL: And, Daniel, in fairness to Michael Flynn`s lawyers who are the ones who wrote all this stuff that seems to have provoked the judge today, they explained and I thought reasonably well. They said that the reason we were specifying this stuff about not being warned is that some of the other people in this investigation were, in fact, warned that lying fought FBI is a crime. And they still lied. So he was -- he said he was just trying to distinguish it from some of the other cases.
DANIEL GOLDMAN, FORMER U.S. DISTRICT ATTORNEY, SOUTHERN DISTRICT OF NY: And he went on to say, please don`t punish my client for the argument that I made.
O`DONNELL: And the judge assured everyone that he would not punish the client for the argument that the lawyers made.
GOLDMAN: And I think that`s probably right. I think the reason this went off the rails was not because of that misguided and mistaken argument. And Jill is right, it was. I think the judge sort of cleared that up early and moved on.
What sent this really off the rails is I think the judge was not as much upset at Michael Flynn for that argument, but was upset a little bit with Robert Mueller and his office for the sweetheart deal that Michael Flynn seems to have gotten where he did not have to plead guilty to the egregious conducts that he engaged in in getting paid by Turkey to lobby against the U.S. while he is Trump`s primary national security advisor on the campaign. And he did not plead guilty to that conduct. That conduct was not a part of his sentencing guidelines and the pre-sentence report.
And what really jumped out at me is that the judge thought to himself, this is worse than a zero to 6 guideline sentence that you have here, and you`ve got that because the special counsel`s office agreed not to charge you for worse conduct. But I`m going to consider that conduct. And right now, your cooperation isn`t complete and it`s not -- it may not be -- he didn`t say it wasn`t, but he certainly indicated that it may not be enough cooperation to get you down to that probation sentence. So I really took this more of a rebuke of the special counsel`s office than I did of Michael Flynn and his lawyers.
O`DONNELL: And, David Corn, the president`s tweet this morning saying, in effect, that, you know, Michael Flynn was entrapped by these FBI agents. Sarah Sanders saying earlier this morning that Michael Flynn was entrapped by FBI agents. All of that is stuff that the judge could be very well aware of and the judge could have decided, we really have to smack this down, which he did by asking those questions of Michael Flynn.
DAVID CORN, WASHINGTON BUREAU CHIEF, MOTHER JONES: I think he wanted to make clear this was a serious crime, and he didn`t want to give Flynn any wiggle room to come out later and say, well, you know, it wasn`t a real crime, I was entrapped. And so, he got him on the record and the lawyers saying, yes, this was a serious crime regardless of what they put in the presentencing memo.
And, you know, I was struck by something you said in your opening, Lawrence, about this not being treason, but betrayal. And there is a betrayal that hasn`t come up today because it`s not part of this case, and that betrayal is that Flynn, with Trump, in mid summer of 2016 got an intelligence briefing and was told that Moscow was behind the hacking and the dumping of material that was part of a Russian plan to subvert the election, to interfere in the election. And at that point on, Trump publicly kept saying it wasn`t the Russians and Flynn, who had been part of this briefing, stood by silently as Donald Trump echoed and amplified Russian disinformation.
I think both of them committed a severe act of betrayal then, which we`re not seeing much talk about because it`s not part of this criminal case.
O`DONNELL: I want to read something that Michael Flynn`s lawyer said in court today, which I think might be for Donald Trump the very worst words that were said in court today, way worse than the talk about treason.
This is Michael Flynn`s lawyer telling the judge: From the beginning of this process, literally from the beginning, General Flynn has cooperated with Director Mueller and the special counsel`s investigation in every way imaginable. And he`s prepared to continue that cooperation.
And, Jill Wine-Banks, I don`t know who is going to tell Donald Trump that Michael Flynn has been cooperating from the beginning in every way imaginable.
WINE-BANKS: Well, I don`t think it will be his lawyer Rudy Giuliani who said, after all, nobody died, so this isn`t a serious crime. Obviously, Judge Sullivan doesn`t agree with Rudy Giuliani. But maybe, even on Fox News, I mean, you had them saying in advance, well, maybe the judge is going to dismiss his plea of guilty because there`s no evidence there. And, boy, are they embarrassed now because it was the exact opposite.
Someone has to get through to Donald Trump that he is in jeopardy and that he can`t keep getting away with it. This has been a week of terrible fraud and criminality. His charity is now shutdown because of its pattern and practice of bad behavior. And then you have this happening.
And the warning that somebody who he was very close with and must look at why is he so close and so protective of Flynn? Why is he saying, good luck to you, Mr. Flynn, but you, Mr. Cohen, are a rat? They both are cooperating. What does he not get?
I don`t understand it. I hope someone can explain it.
O`DONNELL: Daniel, the judge said more than once -- he said this line. There is a great deal of non-public information in this case. He was actually saying at that point, I want to make sure I don`t reveal any of it, but that`s kind of -- that`s a huge piece of what was going on today. There is a great deal of non-public information in this case which the judge knows when he`s considering what to do with this sentence.
GOLDMAN: But on the flip side, maybe in answer to Jill`s question, is that Flynn`s lawyer indicated that the only additional cooperation that Flynn may be able to engage in is to testify in that Eastern District of Virginia case. That means to me, at least, as I read this, there is no expectation he will testify in a future case brought by the special counsel`s office.
It may be that his information is going to be used by the special counsel to charge additional people. But ordinarily, if a prosecutor uses information to charge someone from a witness, that witness is prepared to testify. So, there is a little bit of a silver lining, I think, that you can take if you`re Donald Trump and his other associates, and perhaps that is why he has been so supportive of Michael Flynn to date.
O`DONNELL: And, let`s listen to what Congressman Schiff said today, Adam Schiff, about this. He tweeted, after the judge acknowledged the seriousness of Flynn`s conduct, he was allowed, Trump`s former national security advisor to defer sentencing until he has fully cooperated with the government. Here`s the important line. It will be important Flynn also cooperate with our committee and testify.
And so, David Corn, it looks like Michael Flynn has a long career ahead of him as a witness.
CORN: I hope so, because it goes back do this point that we`ve talked about before. Robert Mueller is not in charge of telling us the whole story of what happened. He`s in charge of bringing criminal cases that he thinks he can reasonably prosecute.
Michael Flynn, I have associates of his. I reported this last week. Who say he had meetings with Kislyak before the election. Kislyak once told the Washington Post he had meetings with Flynn before the election. Not the things he got into trouble with the FBI interview later.
So, we in the public don`t know for sure if these meetings happened and what was discussed, and did these happen while the Kremlin was attack the United States? Was Trump`s national security guy talking in friendly terms, even cutting prospective deals with the ambassador from Moscow? I mean, those are the type of questions that the House Intelligence Committee should have taken up, which they didn`t under the Republicans, which I hope Adam Schiff and now the Democrats will take a good hard look at.
O`DONNELL: David Corn, Jill Wine-Banks, Daniel Goldman, thank you for starting us off tonight. Really appreciate it.
And when we come back, the Trump Family Foundation has been violating the law. That means those legal violations have been committed by everyone you see in that picture. Donald Trump, his three adult children, and the state of New York has had enough of it. They are forcing the Trump Foundation to dissolve, and honestly distribute its assets to real charities under the supervision of the New York state attorney general. That`s coming up.
(COMMERCIAL BREAK)
O`DONNELL: New York State Attorney General Barbara Underwood announced today that Donald Trump has agreed to dissolve the Trump Foundation, a so- called charity, and giveaway its funds to reputable charities under a court`s supervision.
The agreement comes in response to an ongoing lawsuit by the State of New York against Donald Trump and his children for what the New York State attorney general described today as "a shocking pattern of illegally -- illegality involving the Trump Foundation, including unlawful coordination with the Trump presidential campaign, repeated and willful self-dealing, and much more. This amounted to the Trump Foundation functioning as little more than a checkbook to serve Mr. Trump`s business and political interests."
Today`s agreement to dissolve the foundation will not end the attorney general`s lawsuit against the Trump Foundation, which seeks to ban Donald Trump and his children, Donald Trump Jr., Ivanka Trump, and Eric Trump from serving on the boards of any New York charities.
"The Washington Post" David Fahrenthold reports that under the deal announced today, the Trump Foundation must sell its only three remaining physical assets, which are an autographed Tim Tebow football helmet, a 4- foot tall portrait of Donald Trump, and a 6-foot tall portrait of Donald Trump. Donald Trump spent a combined $42,000 of charity money on those items. But now, the foundation values them at just $975.
Joining our discussion now, "Washington Post" Reporter David Fahrenthold who won a Pulitzer Prize for his reporting on the Trump Foundation. Also joining us Tim O`Brien, the executive editor of Bloomberg Opinion. Both are MSNBC contributors.
And, David, let me just start with how the $42,000 becomes $975. How did the football helmet and the two Trump portraits lose $41,000 in value?
DAVID FAHRENTHOLD, REPORTER, THE WASHINGTON POST: Well, I don`t exactly know. The Trump Foundation put that current value on them. So these are all things that Trump bought at charity auctions. So these were times when he was in front of the big crowd sort of playing the role of the rich guy in the room. He overpays for these items. He pays $12,000 for the signed Tim Tebow helmet. He pays $30,000 combined for these two portraits of himself which is great.
It`s great to buy things at charity auctions but then he uses his charity`s money to pay for those things. He`s buying assets for himself using the money from a theoretically independent charity. That`s where you get into trouble. And he overpaid for them obviously.
What I`ll be interested to know is can they find them to actually sell them? I`ve been trying to track down these items and I can only tell you where one of them was. Two of them, the helmet and the 6-foot tall portrait, I have no idea where they are.
O`DONNELL: And Tim O`Brien, as David`s reporting showed us in his original reporting about the foundation, the money going into that foundation was not Donald Trump`s money. He was using other people`s money within that charitable foundation. So when people saw Donald Trump doing the grand gesture of buying the helmet, he was buying it with other people`s money.
TIM O`BRIEN, AUTHOR, TRUMPNATION: That`s right. It`s also a good moment, Lawrence, to flag David`s reporting once again, because a lot of the substance of the attorney general`s case here came out of David`s wonderful reporting around this. And earlier reporting by Bill Bastone at "The Smoking Gun", which begs the question of why -- this has been going on for years -- why it took Donald Trump becoming president to have this kind of scrutiny on the Trump Foundation.
He put in less money than outside donors put into his own foundation. The Trump family is noted that they had expenditures that were in excess of the amount of money that they received, but the problem with those expenditures is they went to awfully strange things. And, frankly, reprehensible, if you look at the way it`s laid out in the lawsuit that the attorney general has filed against the family.
His single biggest expenditure was to rehabilitate a fountain outside the Plaza Hotel in Manhattan, about over $260,000. Of course, Trump owned that hotel. Earlier today, actually when that got tweet -- I tweeted out, David Fahrenthold responded on Twitter by noting the single smallest expenditure that the foundation made was a $7 Boy Scouts of America contribution that apparently went to pay the Boy Scout fee for one of Trump`s sons.
You know, this was never, I think, really a charity. You mentioned earlier in the program that Trump betrayed the mission of the charity. But I actually don`t think he set this up with charitable intentions. I think he saw it as something that could be a vehicle for financial machinations, and the lawsuit makes that pretty clear that it was.
O`DONNELL: David, some extraordinary reporting you have today about this. You say, state investigators asked Weisselberg, who is the chief financial officer of all things Trump and apparently was a member of the board of the foundation, what the foundation`s policies were to determine whether its payments were proper. "There`s no policy, just so you understand," Weisselberg said. That is as smoking gun as you could ask for in the investigation of a charity like this.
FAHRENTHOLD: That`s right. Weisselberg was really interesting. The deposition they got from him showed you kind of how lax, beyond even your expectations for a Trump enterprise, how lax the controls were at that foundation. For one thing, Weisselberg who was the treasurer of the Trump Foundation, had been for years, had no idea he was even on the board of the foundation.
And it turned out that the board of the foundation, which included Ivanka Trump, Eric Trump, and Donald Trump Jr., all supposed to be sort of looking out for the financial interests of the foundation, overseeing its money, making sure it wasn`t mismanaged, that board hadn`t actually met since 1999.
O`DONNELL: And, Tim O`Brien, I know that you have registered absolutely zero surprise with any of this reporting. It`s not that you have the specific knowledge that David obtained. But when David was out there and discovering that Donald Trump has not put any of his money into the foundation and Donald Trump has not made payments on all sorts of charitable promises that he made, that`s the Donald Trump you discovered when you were writing your book about Donald Trump years ago.
O`BRIEN: This is a familiar person obviously. I think the foundation is one facet of the universe of Trump operations that now have drawn the attention of law enforcement officials. You know, the Trump Organization, the Trump family, the Trump inauguration, the Trump transition, the Trump White House, the Trump Foundation are all being investigated for various shades of wrongdoing. You know, even though this stuff has been known for a long time, I think the value in reporting like David`s in all of this is it reminds us of really how remarkably craven the president has been in his various walks of life that he`s inhabited.
You know, let`s not forget that one of the events that the attorney general pointed to was an alleged fund-raiser, a purported fund-raiser that Trump held in Iowa in 2016 in which he had military veterans on the stage with him. He was raising funds ostensibly to help out vets. And he staged that event as an alternative to appearing at a debate in 2016, one of the presidential debates. And we have yet to get a full accounting for how the money was spent that Trump raised during that event, and that ostensibly went into the Trump Foundation.
O`DONNELL: And what did Donald Trump tweet when the New York State attorney general first started moving on this case? He tweeted, "I won`t settle this case." And, of course, today he made an attempt at settling it by at least beginning with dissolving the Trump Foundation.
David Fahrenthold, extraordinary reporting on this. Thank you very much for joining us. Tim O`Brien, thank you for joining us.
And when we come back, we have never seen anything like the presidency of Donald Trump. We all know that. But Presidential Historian Jon Meacham will tell us what is so extraordinary about this.
(COMMERCIAL BREAK)
O`DONNELL: We have never seen anything like the presidency of Donald Trump, but don`t take that from me. Take it from Presidential Historian Jon Meacham who has studied the history of the American presidency much more closely than I have. This is what he said this morning on "Morning Joe."
(BEGIN VIDEO CLIP)
JON MEACHAM, PRESIDENTIAL HISTORIAN: This is an existential constitutional crisis because it`s quite possible that the president of the United States right now is a witting or at least unwitting, partially witting agent of a foreign power.
(END VIDEO CLIP)
O`DONNELL: But in the face of this existential constitutional crisis, Nancy Pelosi has put out the word to the House -- in the House of Representatives to the Democrats that she does not want Democrats talking about impeachment, or at least insisting that no consideration of impeachment can be allowed until Special Prosecutor Robert Mueller has finished his investigation. And that is exactly how the Clinton impeachment happened.
The House Judiciary Committee began impeachment hearings on President Bill Clinton only after Special Prosecutor Kenneth Starr completed his four-year investigation of the president. Bill Clinton was then impeached by the House of Representatives but acquitted in the trial in the United States Senate by his jury of United States senators with 45 senators voting yes to convict and remove Bill Clinton from office, and 55 senators voting no on one article of impeachment. And on the second article of impeachment, the vote was 50/50.
But during the rampant corruption of the Nixon administration, Congress did not wait for the special prosecutor. President Nixon was the subject of a special prosecutor`s investigation at the very same time that he was being investigated by Congress. And the House Judiciary Committee began impeachment hearings before the special prosecutor completed his investigation.
And the House Judiciary Committee actually voted to approve three articles of impeachment against President Nixon while the special prosecutor was still working on the case. And it was that vote by the House Judiciary Committee that ultimately forced President Nixon to resign when Republican senators went to the White House to tell him that he would, indeed, be impeached by the full House of Representatives, and then he would be convicted and removed from office in a trial in the Senate by the required two-thirds vote in the United States Senate.
So, what is the best approach for House Democrats next year in handling the case against Donald Trump? To answer that, we`ll turn to Presidential Historian Jon Meacham who joins us next.
(COMMERCIAL BREAK)
O`DONNELL: Here is a bit of the existential constitutional crisis that Jon Meacham was referring to in the Trump presidency.
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: Did you want President Trump to win the election and did you direct any of your officials to help him do that?
VLADIMIR PUTIN, PRESIDENT OF RUSSIA (through translator): Yes, I did. Yes, I did because he talked about bringing the U.S./Russia relationship back to normal.
(END VIDEO CLIP)
O`DONNELL: Joining us now, Jon Meacham, presidential historian, and an MSNBC contributor. Jon, I was really struck by your words this morning and the crisis seems to be ever more crisis filled as we go through these days. Today, we have a federal judge telling the court that Michael Flynn sold out his country as a national security advisor for Donald Trump. We`ve never been in a place like this.
What would your advice be to Democrats in the House of Representatives about how they should handle their powers next year in relation to what they`re seeing in what you call this existential constitutional crisis?
MEACHAM: Part of what they need to see obviously is all of Director Mueller`s report in the fullness of time. In a way, the first three great impeachment efforts are instructed but not dispositive. So at the risk of self-parity, let`s start in 1865. Andrew -- the Republicans tried to get Andrew Johnson before 1865 was out. They opened hearings in the House trying to find reasons to remove him from office. Ultimately, it failed by a very narrow margin in the Senate. But they were really after him because he was trying to undo the implications of the verdict of the Civil War.
Cut to Nixon. That was -- so Jonathan -- Andrew Johnson was about politics. Nixon, the reason he had to resign was they had him on tape. There was clear evidence of obstruction of justice. He was ordering one federal agency to stop another federal agency.
And we forget this, and we may end up with another element in this crisis. Nixon followed the rule of law when the Supreme Court ruled eight to nothing in July of 1974 that he had to hand everything over. He did, in fact, hand everything over. So he left after, as you alluded to a moment ago, Barry Goldwater went down and said, "You don`t have more than a dozen votes and I don`t think I`m one of them, Mr. President," which brought that home to Nixon.
Then with Clinton, you had a question of proportionality. Pretty clear what happened, but basically the country and the institutions decided it wasn`t worth undoing an election over that. Here we are now with something that goes all the way back to a nightmare of the founders coming true. And I think what I would recommend to House Democrats and Republicans would be to go read Federalist 22, which was Alexander Hamilton talking about the nefarious and pernicious possibility of foreign corruption on the new republican, lower case "r," government.
There`s a reason we have a clause in the constitution that says you can`t accept titles of nobility. You can`t grant titles of nobility. You can`t accept gifts from foreign powers unless you have the congressional approval. They were incredibly worried in the 1780s and `90s that the Republican experiment would fall prey to exactly the kind of thing that Vladimir Putin three -- two-and-a-half centuries on is doing. He`s running a campaign to destabilize the government.
And the question is, and I think we`ll have to see from Director Mueller, to what extent was candidate Trump and President Trump a knowing part of that conspiracy or to what extent did that conspiracy affect, has it affected what he does? Those are the questions that depending on the answers to them, I think we could be in a very dramatic place very quickly.
O`DONNELL: And so is this a case where it seems that the reasonable approach is, as in the Clinton case, wait for the special prosecutor to finish his work? Congress did not wait for the special prosecutor to finish the work in the Nixon case.
MEACHAM: That`s true but you also had the evidence emerging. Remember, it was a little different. You had the tape. You had the, what was it, the June 21st tape, which was the smoking gun. So there was more explicit evidence there.
It may be that Congress has something that as a layman I don`t know about. But ultimately I think it`s pretty clear already. You have him, I think, as effectively an unindicted co-conspirator. Although we should point out, as you know, it`s not impossible that President Trump gets indicted secretly and Mueller waits out the term and then they open it. And then they test the guidance on whether you can do that.
But I think on the Russia question, which to me is the most pernicious, the most destabilizing, I think we have to know a little bit more. And once we know that, then I think the House will have a duty to move seems to me.
O`DONNELL: Jon Meacham, thank you very much for joining us tonight. Really appreciate it.
MEACHAM: Thanks, Lawrence.
O`DONNELL: Tonight`s last word is next.
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O`DONNELL: Time for tonight`s last word.
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SETH MEYERS, HOST, LATE NIGHT WITH SETH MEYERS: Right now, Trump is fighting with them over the budget. Trump wants money for his border wall and Nancy Pelosi has been adamant that he won`t get it. And I`m just going to guess from looking at the two of them that Pelosi is going to win. I mean look at the two of them. He looks like he had a panic attack in a steam room and she looks like Neo from The Matrix if he shopped at Talbots. She`s Tom Cruise. He is Risky Business.
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O`DONNELL: Seth Meyers and Nancy Pelosi get tonight`s last word.
"THE 11TH HOUR WITH BRIAN WILLIAMS" starts now.
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