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House Democrats file lawsuit. TRANSCRIPT: 7/2/19, The 11th Hour w/ Brian Williams.

Guests: Frederica Wilson, Nanette Barragan, Lloyd Doggett, Neal Katyal

LAWRENCE O`DONNELL, MSNBC HOST:  Good evening, Rachel. 

So Richie Neal is going for the tax returns, as we knew he would.  It will take awhile, but there is no question how this ends.  There is just -- there is just no possible legal question here. 

RACHEL MADDOW, MSNBC HOST:  Well, the lawsuit itself is actually pretty entertaining reading, in part because they go through everything the president has ever said about his various reasons why he can`t release his tax returns and they`re all self-contradictory and they all have nothing to do with the statute.  They`re using his own words against him, like so many of these lawsuits have. 

But I also think that the Democrats are sort of -- I don`t know, we will see once it gets assigned to a judge and they start going through motions on this and everything, but the Democrats do seem to just be standing right there on the statute without having to argue much else as to why they should get those returns. 

O`DONNELL:  Yes, they don`t have to.  The statute couldn`t be more clear and now it`s just a timing thing.  How long does it take to get through the district court?  How long does it take to go through an appeals process?  How far does it go?  Does the Supreme Court take the case? 

It`s a timing issue, but the release of the tax returns to the Ways and Means Committee chairman is inevitable.  I just don`t see any way it doesn`t happen.  It`s just a question of where it is on the calendar. 

MADDOW:  And then if they do get them, there is the issue of getting them released to the chairman versus the broader committee, the committee voting whether or not they can release broader than that.  Like, I mean, at that point, that`s when the real fun starts. 

O`DONNELL:  Yes, we will see. 

MADDOW:  Thank you, Lawrence. 

O`DONNELL:  Thank you, Rachel. 

Well, Donald Trump did what he did best today, surrender.  He surrendered to the U.S. Supreme Court.  Yesterday, he threatened to defy the Supreme Court and today he just surrendered to the Supreme Court, 24 hours later, right after the threat. 

We`ll be joined by a lawyer who forced Donald Trump to surrender to the court today, Neal Katyal, later in this hour.  And there`s a very important lesson in today`s surrender for what will happen the next time a new president is sworn in and Donald Trump is forced to leave the White House. 

There are actually people who are gaining more and more currency with the belief that that won`t happen, that Donald Trump simply will not accept the inauguration of another president, especially after the president tweeted a video suggesting that he was going to stay president forever.  But, of course, Donald Trump will surrender the White House because he always surrenders to the stronger power, as he did today. 

We will see that lesson at the end of this hour, the lesson of Donald Trump once again surrendering, the thing he does more than anything else. 

In the post-Watergate reform atmosphere in Washington in the 1970s, the Inspector General Act was passed in 1978, requiring departments to have an inspector general, one who would investigate what that department is actually doing and tell the truth.  That is what inspector generals are supposed to -- supposed to do.  And that is what the inspector general of the Homeland Security Department did today, condemning the dangerous overcrowding and prolonged detention of children in border patrol facilities in the Rio Grande Valley. 

Jennifer L. Costello, the acting inspector general, did something unusual in a government memo.  She actually signed her name to it, right there on the front.  Now, you don`t see that very often in government memos because it`s not necessary.  That seems to be Jennifer Costello`s way of claiming this as her own, perhaps saying if the president`s going to fire someone for writing this report, it`s going to be me. 

Jennifer Costello has been here before.  She has told the hard truth before in an inspector general`s report under great pressure when she worked in the Obama administration.  Jennifer Costello was in the office of inspector general in the State Department in the Obama administration.  And she was the team leader on the State Department`s inspector general report on former Secretary of State Hillary Clinton`s emails that came out in the last year of the Obama administration, and that report said at a minimum Secretary Clinton should have surrendered all emails dealing with department business before leaving government service, and because she did not do so, she did not comply with the department`s policies that were implemented in accordance with the Federal Records Act. 

A lot of Democrats didn`t want to read that report three years ago when Jennifer Costello`s team delivered it, and no Republicans, and especially no one in the Trump White House is going to want to read Jennifer Costello`s report today, which she labeled an emergency management alert, saying in the first line, in italics, "DHS needs to address dangerous overcrowding and prolonged detention of children and adults in the Rio Grande Valley.

Jennifer Costello`s team has been doing spot inspections of southern border facilities and no one can stop them from taking pictures.  The first picture in the report shows the overcrowding of families on June 10th at the McAllen, Texas border patrol station.  The second pictures are taken the next day at the same border patrol station.  This third picture of overcrowding of families is on June 11th at the Weslaco, Texas, border patrol station. 

Other pictures show standing room only for adult males.  This picture shows 88 adult males held in a cell with a maximum capacity of 41.  Some signaling prolonged detention to the inspector general staff observed by the inspector general at the border patrol`s Ft. Brown station. 

The inspector general`s report quotes one official calling the situation "a ticking time bomb." 

The inspector general`s report says: Children at three of the five border patrol facilities we visited had no access to showers, despite the standards requiring that reasonable efforts be made to provide showers to children approaching 48 hours in detention.  We observed that two facilities had not provided children access to hot meals, as required by the standards.  Some single adults were held in standing room only conditions for a week, and at another, some single adults were held more than a month in overcrowded cells.  We are concerned that overcrowding and prolonged detention represent an immediate risk to the health and safety of DHS agents and officers and to those detained.

The inspector general`s report confirmed what we saw yesterday captured on video by Democratic Congressman Joaquin Castro at the border station in Clint, Texas, and reported by this 12-year-old girl who was held at that border station in Clint, Texas, for almost two weeks who says they slept on floors, were not allowed to play and were locked up if they cried for their parents. 

Today, more members of Congress visited the facility in Homestead, Florida, that holds the largest number of unaccompanied minors in the country.  It is a for-profit business called the Homestead Shelter.  And one of the big profiteers of that business is former White House chief of staff and former Trump secretary of homeland security, John Kelly, who is on the border of the company that is raking in profits by locking up children. 

Here`s what some members of Congress had to say. 


REP. KATHERINE CLARK (D), MASSACHUSETTS:  We`ve talked to the doctors who said they`re seeing rising cases of influenza, strep throat, fevers.  The children are arriving here. 

REP. JAHANA HAYES (D), CONNECTICUT:  What I saw in there is not anything that I would want for my children, and if I don`t want it for my children, then it`s not OK for anyone else`s children.  God help us all if this is what Americans do. 


O`DONNELL:  Congresswoman Frederica Wilson of Florida said this --


REP. FREDERICA WILSON (D-FL):  I asked to see the girls.  There are 700 girls in this facility.  I saw 30.  When I tried to go into the dormitory that houses the girls, they said to me they were in intake and it might be dangerous or contiguous.  That`s what they said to me.  So I`m staying because I want to see what`s dangerous, what is contiguous because I do not believe them. 


O`DONNELL:  Leading off our discussion now is Democratic Congresswoman Frederica Wilson from Florida.  She led that congressional delegation to inspect the Homestead, Florida facility for children. 

Also with us, Democratic Congresswoman Nanette Barragan from California who visited the detention facilities in El Paso and Clint, Texas, yesterday. 

And, Congresswoman Wilson, I`d like to begin with you.  That`s your area there in southern Florida.  What did you find there at this largest facility holding children in the United States? 

WILSON:  Well, I found an overcrowded place that children have no place being there.  Beds stacked up on each other, bunk beds where the children can barely walk.  Right across the hall from adolescent girls are adolescent boys, and when they need to use the bathroom at night, they have to go outside to port-a-toilets.  And you know it rains in Florida almost every evening, and God forbid in the wintertime. 

So people were walking around this facility with masks on their faces and I couldn`t understand that.  I`m sure it made the children feel so uncomfortable.  And I had been there for hours and I kept saying, where are the adolescent girls? 

Let me see the adolescent girls, because I am concerned about their well- being and what kind of help they are getting in addressing moving from girlhood to womanhood.  And no one showed me the girls.  I saw a group of girls in a classroom, maybe 30, but I -- they have 700 girls in this facility, and I wanted to see them, I wanted to talk to them, I wanted to touch them, I wanted to question them and find out how they were getting along. 

So when it was time to go, I said, "I am not leaving this place until I see every single girl in this facility, regardless of whether it`s intake, whether there are diseases, whatever is there, I want to see the girls.

So when I went in to see the girls, I was astonished at the living conditions, the bunk beds, the staff wearing masks and all of the upper echelon of the facility are men.  Not one single one of them speaks Spanish.  And the three top people who work there, three months ago three women who speak Spanish were terminated.

And I asked them, why were these women terminated, why are they no longer here?  They pretended as if they didn`t know who I was talking about, but I had their names.  And then they said, oh, she wanted to move, she wanted to go to this place. 

Profit and greed is what -- that`s what`s happening at the Homestead facility.  Profit and greed and they`re just accepting children and squeezing them, and it`s the only private institution in this nation, so we don`t have the same latitude of inspection that we have in all of the other facilities.  And the poor children don`t go to school.  They have school in the facility.

And the protesters outside said when the children come outside, Congresswoman Wilson, we have never seen a girl outside.  We get up on a ladder and we watch the boys play.  We have never seen a girl. 

So, this is very disturbing to me, and I`m going to stay on this and find out what is going on with these girls in this facility, because we have the Super Bowl coming up in 2020 right here in Miami, and I don`t trust that facility.  I don`t trust people with adolescent girls. 

O`DONNELL:  Congresswoman Barragan, how does that compare to what you saw in your visits? 

REP. NANETTE BARRAGAN (D-CA):  Well, when I went down this time, there wasn`t that many people.  They actually said to me you came at the wrong time.  Now, when I went three months ago, we saw overcrowding, people crammed into cells.  We did see a group of women that were crammed into a cell at the El Paso border station.  That`s where you saw some footage of us talking to women, people being held there for 50 days, 70 days, women crying, really begging for help, completely unacceptable. 

And the Homestead facility is an unlicensed facility.  We should certainly not be using unlicensed facilities. 

And the other thing, Lawrence, I just want to mention happening down at the border, we saw this weekend was, we had saw a little boy, he must have been 4 years old.  They locked up the kids at Clint so that members of Congress could not talk to them.  So, they locked these kids up.  This little boy saw us.  He ran up to the Plexiglas, put his hands up as if he wanted to touch us, and you can tell by his mouth he was asking for his dad. 

It`s just heartbreaking.  We should not be putting these kids in these cells, in prison-like settings.  The harm it`s doing is unbelievable that we would do that in this country, and so we need to continue to make sure that when Congress does provide funding that we have accountability provisions and that we have guardrails.  And that was not put in to the dollars that were allocated in the last supplemental border bill, and that`s a real concern to me. 

O`DONNELL:  Will Jennifer Costello, the acting inspector general, be called to testify to talk about the report that she issued today? 

BARRAGAN:  I hope so.  I serve on homeland security.  I will certainly talk to the chairman.  It seems like it`s right for our committee to see, certainly oversight should take a look at it. 

And this is not the first time.  A report was done several months ago addressing overcrowding.  This report, if you look at it, says, again, as though this is happening again.  And, you know, one of the concerns that I have, Lawrence, is whether this is -- whether this is just part of the disregard for treating people like humans, the disregard for dignity and respect that everybody deserves. 

It`s happening to children.  It`s happening to adults.  And it`s completely unacceptable.  Everybody should be outraged at the human rights abuses happening at the southern border and at these facilities. 

O`DONNELL:  Well, when Jennifer Costello was in the inspector general`s office at the State Department, the Republicans in the house of representatives called her up to testify about Hillary Clinton`s emails, so I do hope that Democrats in the House will get her up there to testify about what she`s written about today, exposing these facilities. 

Congresswoman Frederica Wilson and Congresswoman Nanette Barragan, thank you both very much for joining us tonight.  Really appreciate it. 

BARRAGAN:  Thank you. 

WILSON:  Thank you, my friend. 

O`DONNELL:  Thank you. 

Well, today was not a good day for Donald Trump in court.  It was a losing day, a big losing day in court. 

Also, the president is now being sued by the House Ways and Means Committee after losing the census case in the Supreme Court.  Congressman Lloyd Doggett will join us.  He`s a member of the House Ways and Means Committee.  He`ll tell us about that lawsuit to obtain the president`s tax returns. 


O`DONNELL:  Today, House Ways and Means Committee Chairman Richard Neal sued Treasury Secretary Steven Mnuchin and IRS Commissioner Charles Rettig to force them to obey the federal law that requires them to hand over any tax return filed with the IRS to the chairmen of the Ways and Means Committee, in this case the tax returns that the chairman is seeking are Donald Trump`s.  Chairman Neal`s lawsuit says the Treasury Secretary and the IRS commissioner have been illegally refusing to hand over the Trump tax returns. 

The lawsuit says Section 6103(f) of the Internal Revenue Code requires in mandatory terms that treasury shall furnish the committee with any requested tax return information, enacted in 1924 in the wake of congressional attempts to investigate agency wrongdoing in the Teapot Dome corruption scandal, Section 6103(f) was intended to provide the committee with unfettered access to tax returns necessary to carry out its broad mandate to oversee Treasury, the IRS and the nation`s tax laws. 

Since its passage, the committee has routinely used Section 6103(f) for these purposes and the executive branch has met its duty to comply with those requests.  Defendants have now, for what the committee believes, is the first time ever denied a Section 6103(f) request in order to shield President Trump`s tax return information from congressional scrutiny and refusing to comply with the statute.  Defendants have mounted an extraordinary attack on the authority of Congress to obtain information needed to conduct oversight of Treasury, the IRS and tax laws on behalf of the American people who participate in the nation`s voluntary tax system. 

The lawsuit insists accurately that the law does not require the chairman of the ways and means committee to reveal any reason that the chairman is demanding any set of tax returns, but in the lawsuit, Chairman Neal did offer several reasons for the ways and means committee to examine the president`s tax returns.  The chairman cited several public complaints Donald Trump has made about the IRS, both as a candidate for president and while serving as president.  The lawsuit quotes President Trump repeatedly saying that the IRS has been unfair to him and Chairman Neal says in the lawsuit that it`s important for the Ways and Means Committee to investigate whether the IRS has been unfair to the president. 

One of the reasons Chairman Neal gives for examining the president`s tax returns is to see whether the IRS system of auditing presidential tax returns is actually working properly.  Since 1977, the tax returns of the president and the vice president have been automatically audited.  All eight tax returns filed by Barack Obama and Joe Biden while they were in the White House were immediately audited and you never heard them complain about that. 

But President Trump has complained about it endlessly, and so the committee is worried that the president may have interfered with the way the IRS audits presidential tax returns because there is no law requiring presidential tax returns to be audited, it is just an IRS guideline that requires the audits.  There is nothing in law that would prevent the president`s IRS commissioner from blocking an audit of the president`s tax returns.

And so, Chairman Neal`s lawsuit says the Ways and Means Committee might be writing legislation that would enshrine the audit of the presidential tax returns in law and give the IRS the irrefutable power of law to carry out an audit of the president`s tax returns that could not be blocked by anyone in the president`s administration. 

This is a very simple lawsuit.  Chairman Neal is going to win this lawsuit, at every stage, including any possible appeal to the United States Supreme Court.  It all turns on the meaning of the word "shall," and you don`t have to go to law school or be a Supreme Court justice to understand that word.  Treasury shall furnish the committee with any requested tax return. 

It may take awhile, but there is absolutely nothing that can stop Chairman Richard Neal from eventually getting the Trump tax returns. 

Joining us now is a senior member of the House Ways and Means Committee, Democratic Congressman Lloyd Doggett of Texas. 

Congressman Doggett, I can`t pretend for a few minutes with you that there is any suspense in this litigation, other than how long the law will take.  The law is just too clear, it`s just too simple.

But I will say I learned a few things about the history of the law in this masterful complaint today, including this very important fact that I wasn`t aware of, that the audit of presidential tax returns is just a guideline of the IRS.  It`s been going on for so long that I assumed it had slipped into law, but it is not actually protected by law. 

REP. LLOYD DOGGETT (D-TX):  That`s right, Lawrence.  And I agree completely with your conclusion.  As one of the nation`s leading experts on the tax code yourself, that we will prevail --

O`DONNELL:  The leading expert on TV.  Don`t let me do your tax returns. 


DOGGETT:  Yes.  Well, but clearly we will win this.  The question is when will we win it and it won`t be this year before it`s finally decided because the Trump administration has made it clear that their policy of total obstruction will carry them to every appellate court and they will delay as long as they possibly can. 

So I hope we will have these returns by this time next year.  If the Supreme Court decides to take the case, which they could, it will be challenging to get them before this -- the end of this Congress. 

We`re dealing, of course, as you have just explained so clearly with your last segment, we`re dealing with a lawless administration.  And whether it is child abuse on our Texas border, which is rampant with this administration, or whether it is ignoring a clear command that "shall" means "shall," this administration doesn`t intend to comply with the law, so I`m pleased that finally after so many months, we have this action filed. 

You know, here we are approaching the Fourth of July, and this is the first and only action Democrats have initiated in court against this administration`s total obstruction policy.  I agree with your prior comments, that this administration responds to strength, and it`s important not just in this lawsuit but in other actions against this lawless president that we are firm and forceful and that we insist on compliance with the law, which this president has ignored.  We can`t be weak and timid and lackluster. 

O`DONNELL:  And I think we should clarify for the audience that Donald Trump, the president himself has nothing to do with this lawsuit.  When the day comes that the court orders the IRS commissioner to hand over those returns, they`re not ordering Donald Trump to do anything, they`re not ordering the president to do anything, there will be no moment of defiance that the president could suddenly attempt to exhibit because the lawsuit has nothing to do with him.  It will be the IRS commissioner who hands over those returns by order of the court. 

DOGGETT:  I agree with you about that conclusion.  Whether Donald Trump and his minions at the have influenced what Secretary Mnuchin has done here is another question.  As you recall, because you covered it on your show, the Internal Revenue Service lawyers looked at this and they said just what you said tonight, "shall" means "shall."  We win the lawsuit. 

Secretary Mnuchin and the Commissioner Rettig ignored that opinion, went out and got a second opinion from the president`s new personal taxpayer- financed lawyer, Mr. Barr, the attorney general, to justify their action.  They will fail eventually.  I hope it will be soon and that the courts will expedite this proceeding because we need to see the returns for a legitimate purpose. 

You also note that in addition to the audit function there on page 24 of this 49-page complaint, the complaint sets out other very legitimate grounds that expert witnesses told our committee justified doing what`s being done here.  We need the returns for a number of reasons, but certainly to see that this audit guideline has been followed and that it`s put into a statute. 

O`DONNELL:  And if the litigation drags on for long enough, it could just be that on the afternoon of the next inauguration day, the new IRS commissioner hands over those returns because without the Trump Justice Department --


O`DONNELL:  -- standing in the way, all of this stuff would just collapse. 

DOGGETT:  I hope we don`t have to wait that long.  In fact, there is now, as you know, another route in that the New York state assembly has taken action.  I believe it`s headed to Governor Cuomo`s desk for signature that we could at least get the parts of the return that were filed in New York state, and I hope that will we pursued eventually also, because we need this information sooner than the next inauguration.  We need it as a part of accountability for this administration. 

Here at the Fourth of July, we need to see that our Constitution doesn`t have tank tracks all over it, as Pennsylvania Avenue will apparently have after this great celebration honoring Donald Trump. 

O`DONNELL:  Congressman Lloyd Doggett of Texas -- 

DOGGETT:  Thank you.

O`DONNELL:  -- thank you very much for joining us tonight.  Really appreciate it. 

And when we come back, we have a new presidential campaign poll out tonight, a couple of new polls.  And they do show some big changes after that first round of presidential debates. 


O`DONNELL: A new Quinnipiac poll today shows what all of the new polls this week have been showing, that Senator Kamala Harris is making big gains after the first round of Presidential debates here on MSNBC last week. Joe Biden remains the front-runner in the Quinnipiac poll, as he does in every poll. He is now at 22%, down from 30% last month, but Kamala Harris is now at 20%, a surge of 13 points in that poll for Kamala Harris. That means that she is now in a statistical tie with Joe Biden, within the margin of error in that poll.

Elizabeth Warren held her position in the third place with 14%. That leaves her in a statistical tie with Bernie Sanders, who is at 13%. That is a drop of six points for Senator Sanders. And there`s good news for Kamala Harris and Elizabeth Warren in an Iowa poll that shows Joe Biden solidly in first place at 24% with Kamala Harris at 16%, which is a statistical tie within the margin of error with Elizabeth Warren, who is at 13%. Senator Bernie Sanders is at 9% in that one in Iowa and Pete Buttigieg is at 6% in the Iowa poll.

Today, Mayor Pete Buttigieg appeared at Jesse Jackson`s Rainbow PUSH Coalition in Chicago where he addressed the shooting of an unarmed black man in his city of South Bend, Indiana.


MAYOR PETE BUTTIGIEG (D) PRESIDENTIAL CANDIDATE: We had a very emotional town hall meeting, and one woman told me that her seven-year-old grandson has already learned to fear the police. She said that`s not what`s supposed to happen in America or in Indiana or anywhere in 2019. And she`s right. And we accept responsibility - I except responsibility for the work that is left to be done.


O`DONNELL: Senator Cory Booker has now joined some of the other Democratic candidates in saying that he would try to end the immigrant detention policy at the southern border by Presidential Executive Order.


SEN. CORY BOOKER (D-NJ) PRESIDENTIAL CANDIDATE: This is a crisis that Donald Trump has created through executive action. Congress has taken none of those - none of these steps. And therefore it`s something that I can end through executive action.

I will look for a bipartisan immigration reform, and I think we can do that, but in the meantime, there are real crises that have to be dealt with.


O`DONNELL: After this break, we`ll be joined by Professor Jason Johnson and the New York Times` Mara Gay to discuss the whole new world of the Democratic presidential campaign after the Presidential debates.


O`DONNELL: Today`s Quinnipiac polls show that the debates made the difference in the way that the candidates are standing in the polls this week. Among the voters who watched the debates, Senator Kamala Harris leads the race at 29% in the Quinnipiac poll, Joe Biden is tied for second with Elizabeth Warren at 18%, Bernie Sanders is at 8%, and Pete Buttigieg is at 6%.

And now looking at the full sample of the poll that includes the people who didn`t watch the debates, Joe Biden still has the lead. Joe Biden leads with 22% in that poll, followed by Senator Harris at 20%, Senator Elizabeth Warren at 14, Senator Sanders at 13.

Joining our discussion now, Mara Gay, a member of "The New York Times" Editorial Board, and Professor Jason Johnson, Politics Editor at and a professor of politics and media at Morgan State University. Both are MSNBC contributors.

So, Mara, what I find so interesting about people who watch the debates and what those numbers do, there are going to be more debates. So it seems to me that the people who watch the debates are a leading indicator of where this could be going.

MARA GAY, THE NEW YORK TIMES EDITORIAL BOARD MEMBER & MSNBC CONTRIBUTOR: Oh, that`s absolutely right. I also think it`s a good inflection point to just remember that black voters, first of all, just like the rest of Americans and especially Democrats right now, their votes are still up for grabs. So they want to see more of what these candidates have to offer. I think actually their support is spread across several candidates. And so that`s very interesting.

And look, the other issue here is that I believe black voters typically tend to wait until they have gotten to know you a little bit before they give support, but that doesn`t mean that one candidate simply by virtue of being black himself or herself has a lock on that support. It really takes me back to 2007, 2008, where actually Barack Obama wasn`t getting black support until he won Iowa. And black voters felt that they had gotten to know him a little bit, gotten to trust him. So I think we`re seeing that play out here as well.

O`DONNELL: And Jason, the - what do you make of the difference between the people who watched the debate, people who didn`t watch the debate. People who watched the debate produce a completely different polling result than the people who didn`t watch the debate.

JASON JOHNSON, THEROOT.COM POLITICS EDITOR, MORGAN STATE UNIVERSITY PROFESSOR & MSNBC POLITICAL ANALYST: So this goes back to the Kennedy/Nixon debates. I remember learning about this since school that the people who actually watched the debate with Kennedy and Nixon thought Kennedy wiped the floor with him. People who listened to it on the radio thought that they performed equally.

Visually, these things really matter. Kamala Harris presented herself as strong and capable and competent, and basically Joe Biden looked flustered. So that sort of thing is going to make a difference. But, Lawrence, this is a whole new ball game. It`s not just because it was well-produced and 15 million people watched. Conventional wisdom used to be, eh, the debates don`t matter. Clearly they matter.

This is a 10% shift from a sitting - a former Vice President has basically lost 8% to 10% of his support after one debate. So, clearly, I think everybody has been put on alert, every single campaign now. These debates are an opportunity for you to really shift the momentum of where you`re going, how much money you can raise, and how viable you are going forward.

O`DONNELL: Let`s look at the Quinnipiac poll on candidates with the best policy ideas. And this includes everyone in the poll, not just the people who watched the debate. And so these are people who`ve been watching the campaign for more than just the debate. And there is Senator Warren, best policy ideas, she`s way out in front at 31, Bernie Sanders at 18, Biden down at 11, Senator Harris below that at 8, Buttigieg at the bottom of that list at 3.

And so in the total poll, Mara, the being - the best policy ideas doesn`t get you to the top of the overall poll.

GAY: Well, potentially not, but I would say that actually it`s not just Kamala Harris who has performed better in these most recent polls but also Elizabeth Warren has been just on her heels inching up. So I do think that you have a pool of super-informed voters who - anyone who`s been paying attention knows that Elizabeth Warren has come out with very impressive policy proposals, a lot of heft to them.

But I actually think that there is some serious movement between not just Biden and Kamala Harris but also Elizabeth Warren. And really it`s Mayor Pete Buttigieg who`s got to struggle to close that gap. Elizabeth Warren`s numbers look way better now with black voters and other Democrats than they did last week.

O`DONNELL: Let`s go to that point you were making about black voters. And this is the Quinnipiac black voters poll, where Biden is definitely at the top at 31, Senator Harris is at 27, Bernie Sanders is at 16, Cory Booker is at 5, Senator Warren is at 4, and Pete Buttigieg is at zero, Jason Johnson, in the poll of black voters.

JOHNSON: And Lawrence, this is not the first or even the second time that Mayor Pete has been at zero with black voters. At this point, Donald Trump is more popular with black people than Mayor Pete. That is a problem if you are a Democrat running for office. Despite the fact that he`s rolled out this Douglass Plan to fight this back that he`s sort of taken some responsibility for some of the failings with the Police Department. I think this is going to be a serious limitation for him going forward.

Tomorrow, short plug (ph) at The Root, we roll out every single week our black power rankings for how candidates are doing amongst black voters every single week. And really amongst African-American voters, a lot of sort of insiders and activists were happy with what Julian Castro said after the first debate, but it hasn`t seemed to affect the numbers at all.

So I think what we`re seeing here is not just how black voters seem to think about someone`s policy but who they think can actually win and implement those policies. So, as long as electability still plays a roll and it does matter to black voters, you`re going to see a lot of people who may have good ideas, but it doesn`t mean they`re going to pull the most black voters in.

O`DONNELL: Now, I for one never ask candidates questions about polls. I`d rather ask them about policy.


O`DONNELL: If you`re talking to a campaign manager, go ahead, ask them about polls. But let`s listen to what Pete Buttigieg said about the way he`s asked about polls today at the Rainbow PUSH.


BUTTIGIEG: I am asked how I`m going to earn the black vote in the polls 10 times more often than I am asked how my policies would actually benefit black Americans. It`s as if I`m being asked more about how to win than how to deserve to win. But that is our focus.



O`DONNELL: Good point, Mara, but how does he move that vote?

GAY: Well, I do have some thoughts and ideas on that, but I would just say that the first rule of politics, as you and I well know, is that you have to win in order to get anything done. And I guess I`m really enjoying watching all of these Democratic candidates come up with policy proposals that benefit black American. I`m enjoying the political conversation actually trying to address those issues that have been, I think, for way too long on the back burner of not just the country`s platform and agenda, but also the Democratic Party. I mean, black voters are the backbone of the Democratic Party, along with others.

And so this is - this is very - this is the right thing. This is just. And Pete Buttigieg might want to look to Kamala Harris. But I also have to say that the number one issue with a lot of black voters right now is beating Donald Trump. So what you`re seeing is--


GAY: --not just a reaction--


GAY: --to the policy--


GAY: --that`s coming out from these candidates. What you`re seeing is, wow, well, Kamala looks like she might be able to really give Trump a run for his money. And boy, Biden didn`t look like he was having such a great day. Can he really handle this big bully in the White House? I mean, that`s - that`s also playing out here.

O`DONNELL: Jason, Pete Buttigieg is now the fund-raising king, doing fabulously well, raising more money than Bernie Sanders, which is really extraordinary at this stage. But he does have this struggle.

JOHNSON: Yes, he does. Look, cash rules everything. Pete is going to raise money. He has got the media attention. He`s a very, very good fund-raiser. The issue is, at some point, the money has to actually turn into people believing in you and believing you can be competitive.

I think - look, I think the greatest challenge that Mayor Pete seems to have is that he was fishing in the same pond of a lot of other people. A lot of his support came from educated white liberals. Well, a lot of them are now looking at Elizabeth Warren. She`s got a plan for them. A lot of them are now looking at Senator Harris. They like how she presented herself at the debate. He`s got to sort of really eke out a space where he can hold his voters and actually have somebody that his money can help him bring to the polls for him.

O`DONNELL: Jason Johnson, Mara Gay, thank you both for joining our discussion tonight. Really appreciate it.

JOHNSON: Thanks.

O`DONNELL: And when we come back, Donald Trump`s latest big surrender.


O`DONNELL: Donald Trump has surrendered more times than we can count, beginning with Mexico paying for the wall. He surrendered to Mexico on that immediately after taking office and got on the phone to beg the President of Mexico to stop talking about it so that the Trump surrender on Mexico paying for the wall could quietly fade away.

Today, Donald Trump`s surrender is a big one. And so, in true Trump style, he had it delivered by someone you`ve never heard of, deep inside the Justice Department. Kate Bailey, whose title is Trial Attorney, United States Department of Justice, Civil Division, Federal Programs Branch. It was her job to announce today that Donald Trump will not try to defy the Constitution and delay the census for the first time in history and that the census will go forward without Donald Trump`s question about citizenship.

She wrote an email saying, "We can confirm that the decision has been made to print the 2020 Decennial Census questionnaire without a citizenship question, and that the printer has been instructed to begin the printing process."

When Donald Trump lost in the Supreme Court last week, he pretended he wasn`t giving up. He pretended that he might delay the census, which would be as wildly unconstitutional as Donald Trump refusing to leave office if he loses the Electoral College. And there are people who think that Donald Trump just might do that, that he`s just such a crazy tough guy that he`ll just stay in the White House if he loses the election and somehow hold on to the Presidency.

He won`t. He`s not a tough guy. Donald Trump surrenders much more often than he wins, and he surrenders completely, as he did today. That`s the general important lesson of today. Donald Trump does not dare to defy the Supreme Court, and Donald Trump does surrender, and surrender completely.

Here`s Donald Trump yesterday, lying about the possibility that he would delay the census.


UNIDENTIFIED FEMALE: Will you be delaying the census for the Supreme Court ruling on the census question?

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: Yes, we`re looking at that. You go through all this detail and you`re not allowed to ask whether or not somebody is a citizen. So you can ask other things, but you can`t ask whether or not somebody is a citizen? So we are trying to do that. We`re looking at that very strongly.


O`DONNELL: Looking at that very strongly to delay the census. No, he isn`t. Less than 24 hours later, Donald Trump allowed a Justice Department lawyer to announce he stopped looking at it very strongly, and he is completely surrendering to the Supreme Court decision, ordering the census to go forward without a citizenship question.

Neal Katyal is one of the lawyers who`ve got Donald Trump to surrender this time by beating Donald Trump in the United States Supreme Court on the census case. And he joins us now. Neal Katyal is a Former Acting Solicitor General in the Obama administration and an MSNBC legal contributor.

And Neal, I have to bring you up to date on the breaking news at 10:33 p.m. Just minutes ago, the President has tweeted again on this. He said, "A very sad time for America when the Supreme Court of the United States won`t allow a question of "Is this person a citizen of the United States?" to be asked on the 2020 Census! Going on for a long time. I have asked the Department of Commerce and the Department of Justice to do whatever is necessary to bring this most vital of questions, and this very important case, to a successful conclusion." And then for some inexplicable reason, he says "USA!" three times.

Neal, as I understand it, no one has - apparently no one has told the President that the case has reached a successful conclusion.

NEAL KATYAL, FORMER ACTING U.S. SOLICITOR GENERAL & MSNBC LEGAL CONTRIBUTOR: Yes, it`s a thoroughly odd tweet. And it`s very similar to the tweet he issued last week when he lost at the Supreme Court. That was a really resounding loss, Lawrence. And so, before getting into the tweet today, it`s important for your viewers to know what happened.

So last week, the Supreme Court, in an opinion by Chief Justice John Roberts, said that President Trump`s rationale for putting the citizenship question on the census was "contrived." I mean, that`s a remarkable thing for a Chief Justice of the United States to accuse a President of. And then the President last week and now again today in these tweets is saying, well, maybe we can delay the census or suggesting that.

And your whole lead-up to this question, the segment you were showing, was all about how well the President has surrendered on this, and it sure looked that way until this tweet 15 minutes ago. And that`s good that he surrendered. I mean, we should applaud a President who follows Article 1, Section 2 of the Constitution, which has been around since 1789 and requires a census every 10 years.

So I can`t really make too much of the tweet, Lawrence. It`s very hard to tell what it really means. But I do think it`s indicative of just the way this President governs, which is, really, not to govern, but to tweet. This is a guy who is tweeter-in-chief, not Commander-in-Chief. He doesn`t really like governing. He just issues these missives, has no real idea what his own Justice Department is doing on this. And the proof is in the pudding.

So, today, the Justice Department came and told the federal court we`re printing the census right now and it`s not going to include the citizenship question.

O`DONNELL: Well, there`s a very important element to Trump surrenders, and that is that there is a performance art piece that continues, in which he pretends he didn`t surrender. So, for example, on the wall, on the shutdown with Nancy Pelosi, he`s completely shut out on the wall, and then he goes to rallies and tells people, we`re building the wall.

And so this tweet, I think, lives in that family of Trump expression, where the case has reached a successful conclusion, there`s nothing to be done with that case, the Supreme Court has heard it and ruled. And the President continues to tweet about the case. That fits a Trump model.

KATYAL: Yes. So it`s a model or it lives in a family. I think the word I`d prefer is "delusional." But either way, you can do say that - in either respect. I think the difference with Mexico or something like that is very few Americans will go to the border and see that there is no wall or things like that.

Every American is going to see the census questions in the next year. And they will all know, and it will be clear as day, that there is no citizenship question on there and there is a United States Supreme Court ruling, which is just extraordinary. No President had this in history. You`ve really got to try to get the Chief Justice and his colleagues to accuse you of being conjectural and pretextual in your reasoning, but that`s what President Trump managed to do already in just a couple of years of being President.

That is - it says something about President Trump. It also says something about our United States Supreme Court, which has said effectively in this opinion to Donald Trump, "look, you can lie to the American people, you can talk about the wall or this or that, and the promises, but don`t you dare lie to the federal judiciary, and that`s what you did in this case."

O`DONNELL: And just to be clear to the audience, the Census Bureau has other methods of surveying the American people about different things, including citizenship. They just don`t do it in the 10-year census. And so they keep a pretty good count of how many people in this country are citizens and how many people in this country are not. So it`s not a mysterious number that`s otherwise unavailable.

KATYAL: That`s 100% right, Lawrence. And I think the most important thing is that the Census Bureau itself has said, if you ask this question about citizenship, it`s going to depress minority turnout and you`re actually going to get a skewed result. Those are impartial, non-political people. They`re the career experts who are saying that, in Trump`s own Commerce Department, which administers the census.

And so that`s why the Supreme Court, I think, was so concerned with this blatant attempt by President Trump at the last minute to add this thing for reasons that he claimed were about the Voting Rights Act when I think President Trump doesn`t even know that there is a Voting Rights Act. So it`s like a little hard to see it.

O`DONNELL: Neal Katyal can win in the Supreme Court and beat Trump in the Supreme Court but he can`t stop the Trump tweets.  Neal Katyal, thank you very much for joining us tonight.  Really appreciate it.

KATYAL:  Thank you.

O`DONNELL:  That is tonight`s LAST WORD.  "THE 11TH HOUR" with Brian Williams starts now.