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The 25th amendment, is this applicable yet? Transcript 1/10/18 All In with Chris Hayes

Guests: Eric Swalwell, Nick Akerman, Joyce Vance, Michelle Goldberg, Leon Wolf

Show: ALL IN with CHRIS HAYES Date: January 10, 2018 Guest: Eric Swalwell, Nick Akerman, Joyce Vance, Michelle Goldberg, Leon Wolf

CHRIS MATTHEWS, MSNBC HOST: That`s HARDBALL. Thanks for being with us. "ALL IN" with Chris Hayes starts right now.



UNIDENTIFIED MALE: Would you be open to --

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: We`ll see what happens. I mean, certainly, we`ll see what happens.

MELBER: President Trump sidesteps Mueller.

TRUMP: Nobody has found any collusion at any level. It seems unlikely that you`d even have an interview.

MELBER: Tonight, why the President is changing his tune on an interview with the Special Counsel and why he`s ordering Republicans to take control of the Russia probe. Then --

TRUMP: Welcome back to the studio.

MELBER: The President`s performance on immigration.

TRUMP: Greet reviews by everybody.

MELBER: Igniting a right-wing meltdown.

UNIDENTIFIED FEMALE: This is a disaster. It was the lowest day of his presidency. It`s not disputing the Michael Wolff book.

MELBER: Plus the man who literally helped write the 25th Amendment in an ALL IN exclusive. And why Darrell Issa is headed for the exits.


MELBER: When ALL IN starts now.


MELBER: Good evening from New York, I`m Ari Melber in for Chris Hayes. And with the prospects of a high-stakes interview with Bob Mueller now looming for the President in maybe even the coming weeks, the news tonight is that President Trump is backing away from his prior expansive claim that he would sit down, easily, with the Special Counsel. These new remarks come as Trump and his allies are making public moves to undermine the Russia probe. And Trump urging his Republican allies to "take control." Here was the President at a joint press conference today with the Prime Minister of Norway.


TRUMP: I will say this. There is collusion, but it`s really with the Democrats and the Russians, far more than it is with the Republicans and the Russians so the witch hunt continues.


MELBER: Asked about recent reports that an interview with Mueller is now in the works, the President was newly noncommittal. And the man at the center of a criminal probe who is, of course, facing new scrutiny for this account in Michael Wolff`s book about how aggressively Trump sloppily orchestrated the steps that made all of this worse, the firing of Jim Comey, the drafting of that statement, potentially misleading the public and investigators, consider that that man now says that the scrutiny should not be on him, but instead on a former official and former candidate, who`s not currently in any government position, Hillary Clinton.


UNIDENTIFIED MALE: Are you open to meeting with him? Would you be willing to meet with him, without condition or would you demand that a strict set of parameters be placed around any encounter between you and the Special Counsel?

TRUMP: Well, again, John, there has been no collusion between the Trump campaign and Russians, or Trump and Russians, no collusion.

When you talk about interviews, Hillary Clinton had an interview where she wasn`t sworn in. She wasn`t given the oath, they didn`t take notes, they didn`t record, and it was done on the Fourth of July weekend. That`s, perhaps, ridiculous, and a lot of people looked upon that as being a very serious breach. But it has been determined that there is no collusion and by virtually everybody, so we`ll see what happens.

UNIDENTIFIED MALE: But would you be open to --

TRUMP: We`ll see what happens. I mean, certainly, I`ll see what happens. But when they have no collusion and nobody has found any collusion at any level, it seems unlikely that you`d even have an interview.


MELBER: We`ll see what happens. That could be a potentially reasonable position for any potential witness to take. But let`s be clear, it`s a contrast from that fateful day right after Jim Comey gave his testimony under oath before Congress when Donald Trump struck a confident note about testifying.


UNIDENTIFIED MALE: Would you be willing to speak under oath to give your version of events?

TRUMP: 100 percent.

UNIDENTIFIED MALE: So if Robert Mueller wanted to speak with you about that --

TRUMP: I would be glad to tell him exactly what I just told you, Jim.


MELBER: Today, Donald Trump also echoed a point he made in what you may remember, that rambling New York Times interview from December, which where he said basically everyone was saying there was no collusion, among other things. Well, here`s the top Senate Republican who investigates the Russia issues, Richard Burr, contradicting that in his widest public summary of the probe so far. This was a few months back.


SEN. RICHARD BURR (R), NORTH CAROLINA: I thought I was pretty clear that the issue of collusion is still open, that we continue to investigate both intelligence and witnesses and that we`re not in a position where we will come to any type of temporary finding on that, until we`ve completed the process.


MELBER: Those are the Republicans. Meanwhile, Democrats are saying, they`ve had enough of the GOP approach here. Democrat Dianne Feinstein releasing testimony related to the infamous Trump dossier. This was actually first published a year ago today, and the man behind Fusion GPS, which commissioned the dossier, is in this new testimony, rebutting the right-wing claims that somehow the probe was only an attempt to smear Trump, while the Committee`s top Republicans were outmaneuvered in their attempt to keep that very testimony secret. Senator Feinstein must have hit a nerve, because the President gave her a new nickname, Sneaky, and now alleges that she released the testimony in such an underhanded and possibly illegal way without authorization, which he calls a disgrace. And then he calls for a primary against Dianne Feinstein.

Note that Donald Trump`s reflexive calls for primaries against Republicans makes some sense, where he has some leverage. This one doesn`t make any sense. Donald Trump lost California by 30 points. He doesn`t exactly have a base of influence to the left of Senator Feinstein. Now, then, at the other end here, there is Trump`s tweet that has something very important if you look at those last two words. It`s about taking control and Republicans seizing these probes. Now, that is not something to be taken lightly. And that is not a political observation, indeed, to consider just how disturbing the claim that Republicans or any political operation should take over these probes. Well, you can turn today to the top Republican on the Judiciary Committee, rebuffing that call, saying he doesn`t know what the President means and he doesn`t even want to discuss it.


UNIDENTIFIED MALE: The President said that you should take -- that the Republicans should take control of the investigation, in light of the release of his transcript. Are you losing control of this investigation and should you regain control?

SEN. CHUCK GRASSLEY (R-IA), CHAIRMAN, SENATE JUDICIARY COMMITTEE: I don`t know what the President has in mind and I don`t think I better comment until I have a discussion with the President on that point. I don`t intend to have a discussion with the President on that point and I hope he doesn`t call me and tell me the same thing that you said he said.


MELBER: I hope he doesn`t call. I just called to say, I`m in control, as the old song goes. Now, if there`s any doubt, Senator Grassley then added this later statement. "My job isn`t to make the President look good or bad, it`s just to get the facts out. When I`m the chairman of a committee, I`m in control, and what the President says doesn`t bear upon what I do." So, obviously, he -- just likes Trump`s efforts on Comey and describing the Trump Tower meeting again tonight, his own intervention is what caused that unusual reminder, even rebuke from a Republican, that it is that guy, Grassley, not Trump, in control right now. I`m joined first by Congressman Eric Swalwell, a Democrat from California, Member of the House Intelligence Committee, and a familiar face on these stories. Sir, your view for us on what it means that the testimony was released, released only by the Democratic side and that Grassley says he`s in control.

REP. ERIC SWALWELL (D-CA), HOUSE INTELLIGENCE COMMITTEE: Good evening, Ari. You know, we have a responsibility to this great democracy, to ensure that it lives another day. And right now, we are seeing Republicans and this President trying to drive it off a cliff. So at some point, you have to reach for the steering wheel, pump the brakes, do all you can to make sure that the American people understand what`s going on. And so as Republicans and the President try to trash the FBI and what they believe occurred, the truth has to come out. So I commend Senator Feinstein for doing it. It was the right thing to do. I believe that we should also release the House Intelligence Committee`s interview with Glenn Simpson. It all should come out.

MELBER: Well, you mentioned -- Congressman, you mentioned the House. Have you read the Fire and Fury book yet?

SWALWELL: Yes, I have. And, you know, it certainly was interesting for our investigation, as far as what Steve Bannon had to say. I thought his take on how unpatriotic it is for just one floor beneath the candidate of a presidential campaign, that his highest principles would meet with foreign nationals to receive illicitly obtained dirt on their opponent. He`s right, that is unpatriotic and they had a duty to go to the FBI and they didn`t.

MELBER: And then also regarding your committee in there, that book goes further than other reporting to say that the sources that Michael Wolff has indicated that Devin Nunes wasn`t just going rogue, but was operating at the express direction of the White House. Is that your understanding?

SWALWELL: It looks that way, from what he did after the March 20 hearing with James Comey, but it looks that way today as we continue our investigation. And when --

MELBER: Have you confronted him about that?

SWALWELL: We confront him all the time. He doesn`t show up. He`s recused in name only, but he still signs, you know, under the cover of darkness, all of the subpoenas that are only going to the FBI or the bank records of Fusion GPS. Imagine that, there`s concerns about money laundering and using Russian money to fund Trump Organization projects through Deutsche Bank, but we won`t subpoena Deutsche Bank. So when the President says, when will the Republicans take control, I`ve seen in our investigation they are in control. They don`t want to subpoena the relevant witnesses or documents. They just want to advance the President`s narrative.

MELBER: Will you look to issue a minority report?

SWALWELL: We hope it`s not the case. You know, at different -- at each inflection point, whether it`s the indictments or the guilty pleas or the firing of James Comey, we have pleaded with the Republicans to get more serious about this investigation. So I`m still hopeful that we can do that. It`s better for the country if we do. But, again, we have a responsibility to get the truth out there. It`s our democracy that`s on the line.

MELBER: Congressman Eric Swalwell, thank you for making time tonight.

SWALWELL: Of course, my pleasure. Thanks, Ari.

MELBER: For more on where this probe heads, I`m joined by Nick Akerman, a former Assistant Watergate Prosecutor and Joyce Vance, a former Federal Prosecutor for the Northern District of Alabama. And also, I should mention, in fairness, the familiar faces and experts for us on the story. Nick, do you feel better or worse tonight when you see everything we just ran through?

NICK AKERMAN, FORMER SPECIAL WATERGATE PROSECUTOR: It`s not -- it`s a good feeling, in the sense that it`s just part of what we`ve been seeing over the last couple of weeks, where the Republicans have been trying to do everything possible to undercut Mueller. Fortunately, I think Diane Feinstein did the absolute right thing in releasing that testimony. I mean, it really undercut the Republican narrative on what they`ve been saying about the Steele investigation. It shows that the FBI investigation did not start because of the Steele reports.

MELBER: Right, which is -- which is huge but let me push you on that. I think the disclosures in there are important because they show the wide breadth of credible evidence that supported the concern to probe this. But, is selective release really the best route here? Can we get a better set of information from the Congress?

AKERMAN: Well, I don`t think there`s anything really selective about this.

MELBER: I mean, this witness versus other witnesses.

AKERMAN: Right. Well, I think they had to because what was happening here was, they were referring a matter to the FBI for investigation for criminal prosecution, relating to Christopher Steele.

MELBER: Right, which was legally bonkers, you know the term.

AKERMAN: Yes, totally bonkers. I mean, totally, totally bonkers because what this testimony shows is that Steele was the expert on Russian intelligence and M16. It shows that he went into this, given an assignment, the simple assignment was, what`s Donald Trump been up to in Russia? There was no pre-determined conclusion that he was given -- that he was supposed to come up with. He just looked at the facts. He did what every good investigator does and what I`ve done with investigators over the course of my practice. You first look at the public records. You go into databases, you see what you can find and then you go out and you talk to individuals.

MELBER: Right.

AKERMAN: And this is exactly what they did. And what Simpson testified to was that as he got the reports, it was pretty obvious to him that what was being found was totally credible.

MELBER: Joyce?

JOYCE VANCE, FORMER FEDERAL PROSECUTOR: Well, I would tend to agree with Nick. I think that the release, in this case, was appropriate and, in fact, it was a leadership moment from Senator Feinstein, a real effort to bring the country together and to help people understand that in addition to learning last week that it wasn`t the Steele Dossier that led the FBI to open this case, in fact, it was other information coming from other sources, that to the extent the Steele dossier was considered, was used to develop leads, it came from a deeply credible source. And as you read the information in the dossier, I think you can`t help but be left with the feeling that there was a significant basis for opening this case, whatever its outcome may be in the end.

MELBER: Right. And it`s so central to where we are. I mean, some of this stuff moves so fast. There`s a political desire to distract, and yet, this is all important, because what we had from Republicans on the committee was an effort to essentially ruin this man`s life and say in public that maybe he was guilty of some unknown crime and use the language of criminal referral. Is that harder to support now, is question one, Joyce. And number two, take a listen, as well, to Senator Feinstein`s update on this whole process.


SEN. DIANNE FEINSTEIN (D-CA), SENATE JUDICIARY COMMITTEE: The one regret I have is that I should have spoken with Senator Grassley before. And I don`t make an excuse, but I`ve had a bad cold and maybe that`s slowed down my mental facilities a little bit. I think that the American people have a right to know. I don`t think there`s something that`s classified, I don`t think there`s anything that`s highly problematic but at least it`s a clearing of the air so that the facts are out there.


MELBER: Joyce?

VANCE: So, Senator Feinstein is certainly incredibly gracious about this in acknowledging that perhaps a better practice would have been to go to Senator Grassley first. But nothing about this changes the fact that this was really a garbage referral. This was a referral back to the FBI of information that was provided to the Senate in large part by the FBI. If they had chosen to make this charge, they could have done it on their own. So this looks a little bit like political grandstanding. Of course, the FBI receives referrals from a lot of sources. They consider some of them, they don`t always act on them. This referral is certainly no more or less credible than it was when it was made, which is to say, not credible at all.

MELBER: Right. Which, while you complimented Senator Feinstein for her grace, you put it very carefully, very respectfully. Another way to put it is that it`s a baseless, garbage referral. On the testimony part, Nick, is Donald Trump trying to avoid actually testifying now? Is that what it mean?

AKERMAN: Oh, yes, I mean, I don`t blame him. I mean, you know, his big problem is a guy by the name of Michael Flynn. Michael Flynn, basically, pled guilty to lying to the FBI about the materiality of which he admitted has to do with the coordination between the Russians and the Trump campaign. Everyone has missed that point. So what you really have here is somebody who is going to testify to a conspiracy.

MELBER: You`re saying, just to be clear.


MELBER: That if Mike Flynn lied about something random and unrelated, it wouldn`t necessarily have been actionable?

AKERMAN: Correct. And you`re -- it`s a critical element of the crime of lying to the FBI to show that the lie was material. The materiality that he pled to had nothing to do with the Logan Act, it had to do with the coordination between Russia and the Trump campaign. So what he`s afraid of is that Flynn is basically going to spill the beans on this conspiracy and he`s going to be put into a position where he`s probably lied to his lawyers about what occurred between him and Flynn.

MELBER: Although we don`t know.

AKERMAN: But very likely, because of his track record, and he`s likely going to lie about whatever else --

MELBER: Well, Nick, you`re saying he lies all the time, and the evidence is we know he lies some of the time.

AKERMAN: Most of the time.

MELBER: So we just want to be -- Nick Akerman and Joyce Vance, on that note, I`m going to fit in a break. It`s great to have you both tonight. Have a good evening. Don`t go anywhere. We have a lot more including Ann Coulter and others taking shots at that showbiz meeting that you might have seen there yesterday. That story in two minutes.


MELBER: President Donald Trump today said he got, "great reviews" for how he handled himself during, well, a meeting yesterday, a bipartisan negotiating session on immigration.


TRUMP: It was a tremendous meeting. Actually, it was reported as incredibly good. And my performance, you know, some of them called it a performance, I consider it work, but it got great reviews by everybody other than two networks who were phenomenal for about two hours. Then after that, they were called by their bosses and said, oh, wait a minute. And unfortunately, a lot of those anchors sent us letters saying, that was one of the greatest meetings they`ve ever witnessed.


MELBER: They sent those letters. They must have gotten there really quickly. I could say more, but I`m going to keep moving. During the meeting, the President expressed support for this deal to potentially protect 800,000 people, often called DREAMers from deportation. There was a discussion of the comprehensive immigration reform, that would go to the entire undocumented population estimated around 11 million. He also told Senator Dianne Feinstein, who we were just talking about, that he would, in fact, support a clean DACA bill without border security funding, which obviously would end this whole standoff, if true.

He did say, yes, I would like to do it, and the White House`s official transcript completely excised that line, which the White House then corrected under pressure. Trump supporters, though, are also unhappy, which cuts against that self-performance review he just did. Sean Hannity resorted to visual aids to demand, "Border Security first." Many of Hannity`s ideological allies also much less restrained.


TUCKER CARLSON, FOX NEWS HOST: Today in a remarkable twist, the President held a televised meeting with the very swamp creatures he once denounced. Yet these are the same people the President now says he trusts to write the immigration bill, the one he`ll sign no matter what it says. So what was the point of running for President?

REP. STEVE KING (R), IOWA: I think the President`s been encircled by folks who just don`t understand, don`t care, and adhere to the other side of the ideological agenda. And it is a sacrifice -- what he`s doing yesterday is a sacrifice of the rule of law.

ANN COULTER, AMERICAN COMMENTATOR: He was clearly trying to overcome the bad press of this Michael Wolff book by showing, oh, he`s in command. But, in fact, what he did was fulfill every description of him in the Michael Wolff book. He doesn`t listen, he has no command of the facts, he agrees with the last person who speaks to him.

Lou, this is a disaster! It was the lowest day of his presidency.


MELBER: I`m joined now by New York Times Columnist, Michelle Goldberg and Leon Wolf, Managing Editor of the conservative Blaze. Michelle, was Ann Coulter right just there?

MICHELLE GOLDBERG, COLUMNIST, THE NEW YORK TIMES: God help me. I mean, except for it being the lowest day of his presidency, there have been many, many other lower depths. But, yes, I think she was absolutely right. That he called this meeting to prove that he wasn`t a blithering idiot and showed that he has no command on the facts of the central issue of his presidency, right? I mean, the excuse for Trump is usually, he`s new at this, he`s never been in government before, but he doesn`t know -- he doesn`t know about immigration reform what you would know by, say, perusing the Fox News site for, you know, 30 minutes.

He doesn`t know what a clean DACA repeal is. He doesn`t know what comprehensive immigration reform is, or why that`s such a taboo among conservatives. You know, he just -- he has -- and he does, in fact, agree with the last person that he talks to on any subject. So nothing that he actually said in the meeting can be taken seriously in terms of policy. But it was, I think, a demonstration of just how malleable and disengaged he is.


LEON WOLF, MANAGING EDITOR, THE BLAZE: Well, let me say this. I think that people like Ann Coulter and Sean Hannity and Tucker Carlson are about to find out the hard way what Steve Bannon learned earlier this week, which is that they`re not driving the bus when it comes to Trump support. They think they are because they were early adopters of the -- of the Trump movement. And certainly, among the like, conservative leadership, you know, people who are thought of as conservative leaders. The early adopters of Trump were all hard-core immigration people but the rank and file Trump supporters, I think, are going to stick with them. Because for them, it`s not ideological at all about anything, including immigration, it`s really more kind of, they feel culturally on the outside that they want to be part of what they perceive as a winning movement.

And to them, whatever Trump does is going to be if so facto correct. I`m not discounting that some people are going to be upset, some small number of people, and they`re going to be high visibility people, but I think most of his people, if he comes out tomorrow and stands hand in hand with you know, Chuck Schumer and Nancy Pelosi and announces some great deal that he just made with the Democrats to give all of the illegal immigrants, you know, full citizenship in exchange for some border security measure, they`re going to say, see, we told you, he was a great deal maker and look at this you know, great deal that he came up with.

MELBER: Leon, here`s some callers into Breitbart on this issue.


UNIDENTIFIED MALE: First impressions of that meeting yesterday is flat-out betrayal for the voters that put him in office. I voted for him for immigration and only immigration.

UNIDENTIFIED MALE: That`s not what we voted for and I don`t believe it`s going to be accepted to the American people. And let`s be clear, it`s the American people who voted for Donald Trump are abandoned in this process, they will not vote in 2018.



WOLF: Again, I think it`s advantageous, you know, especially if you`re controlling the call screening to put people on who agree with what basically your Web site`s platform is. I`m just -- I`m telling you, among the rank and file people I talked to, I would not -- I would not be surprised if they stuck with Trump through this.

MELBER: You`re literally getting awful close to calling those people like fake sources.

WOLF: Well, you know, listen --

MELBER: And I know you don`t want to do that.

WOLF: There`s a certain amount of that to politics on both sides of the aisle. I mean, you know, a lot of people view politics as just basically a team sport. You know, without the sports. It`s whoever`s wearing the right Jersey, we`re going to cheer for. And for a lot of these people, it`s not about ideology or immigration or whatever it is, it`s about Trump and whatever he does, they want to be a part of it.

MELBER: Yes, I mean, look, Michelle, Leon is outlining a common claim, although I think it is wrong. And it`s the idea that Trumpism is Donald Trump and it never moves. And you know, the evidence that we have of people who are really, really into Donald Trump, what you call the super base, are a lot of people who actually put their money down with Donald Trump. And we know that over time -- not initially because they put their money -- but over time, a lot of those people sued Trump Soho to the point that he no longer owns it, because they were unhappy with what they said was fraudulent business practices, sued Trump University, which was a business founded to give business advice that went out of business and it was a customer base of people who loved Donald Trump so much, they paid money to go learn from him and found out he wasn`t there, because there was no Donald Trump in class.

GOLDBERG: Although, that`s a little -- I think that a business is different than a cult, which in some sentences --

MELBER: Fact check, true.

GOLDBERG: You know, and so, you know, I think that we`d be better off looking at like the sociology of cults and the god that failed and how apocalyptic cults don`t abandon their prophets when the apocalyptic -- when the apocalypse fails to appear. I mean, I think that it`s more in many cases a kind of religious devotion or a religious style devotion. But that said, it doesn`t have to be all of them. His approval rating is already really low. It`s already 36 percent, you know? He doesn`t need to lose all of his base for it to tank the Republican Party. He just needs to split off a kind of hard-core chunk of it. And there`s no solution to this that doesn`t alienate someone that he needs.

MELBER: Well, Leon, I said you were wrong, look at the business. Michelle says I`m wrong, look at the cults. A final word from you for your thoughts?

WOLF: Well, listen, I don`t want to go so far as to call it a cult, but I think that -- I think that Michelle is more or less right in what he`s saying factually, which is, listen, I come at this from a different perspective. I covered the Republican primary kind of from the Republican side. And all I will say is I will believe that any significant portion of Donald Trump`s base is going to abandon him when I see it and not before.

MELBER: Fair and well put and appreciate all of the insights from across the spectrum here. Michelle Goldberg and Leon Wolf, thank you so much. Still ahead, the 25th Amendment talks swirling around the White House with Michael Wolff. Well, I`ve got a man here who was there when it all started.


MELBER: Michael Wolff`s Fire and Fury reports that Trump`s own aides talk about whether he could ever be removed from office through the 25th Amendment.


MICHAEL WOLFF, AUTHOR, FIRE AND FURY: This is, you know, I think not an exaggeration and not unreasonable and it`s not unreasonable to say that this is 25th amendment kind of stuff. This is --

CHUCK TODD, MSNBC HOST: I mean, did anybody say that in the west wing to you?

WOLFF: All the time.

TODD: 25th Amendment? They would bring up the 25th Amendment?

WOLFF: Actually, they would say, we`re not -- sort of in the mid-period. We`re not at a 25th Amendment level yet. Or they would --

TODD: That`s alarming.

WOLFF: This is alarming in every way. And then this went on, OK, this is a little 25th Amendment. So 25th Amendment is a concept that is alive every day in the White House.


MELBER: More from that book. Reportedly, Steve Bannon said this was a real possibility,, telling people he thought there was a 33 percent chance the Mueller investigation would lead to the impeachment of the president and a 33 percent chance that Trump would resign, perhaps in the wake of a threat by the cabinet to act on the 25th Amendment.

But does activating the 25th Amendment apply to the current state of affairs in any way? One of the men who helped draft it is here right after this.


MELBER: Welcome back.

After the assassination of President Kennedy, congress became quite concerned about what would happen in the event of a severely incapacitated president -- wounded, unable to serve. So an amendment was drafted, devised to address a tragedy Americans, of course, hope would never occur.

Now, principle author of the 25th amendment, which was drafted in 1963, and then historically ratified quite soon after by constitutional standards in 1967 was Senator Birch Bayh of Indiana.

I`m excited to say Jay Berman is the former chief of staff to former Senator Birch Bayh. He was a congressional aide to the senator, working to get that constitutional amendment passed,which happened, of course. That is a rarity in and of itself.

Thanks for coming in.

JAY BERMAN, FORMER CHIEF OF STAFF TO SENATOR BIRCH BAYH: Thank you. Yes, it`s very rare and it`s even rarer, the fact that we have one senator who guided into passage two constitutional amendments. No one since the founding fathers have been responsible for that. So he had the 25th on presidential succession, and the 26th, along with Senator Jennings Randolph, which was 18-year-old. And he almost had a third, which did, in fact, pass congress, came three votes short at one point for ratification in the states, and that was the equal rights amendment.

MELBER: I feel like I`m back in law school. But I liked law school. Don`t take that the wrong way.

I`m going to ask you about whether all of this could apply in this context with Michael Wolff reporting that Trump aides are talking about it.

But before I get to that, which is the application now, building on what you just explained, what was it that you and your boss were able to do then to get to a super majority and to get out in the states, when today we`re accustomed to congress that can`t even pass basic legislation, never mind this.

BERMAN: It was a different time and place. And my boss was an incredible legislator. NHe had grown up in the Indiana legislature. He had a lot of friends on the Republican side -- Ed Brooke, Howard Baker, (inaudible), people he worked with. This was truly a bipartisan effort and was really the mind-set was that it was an institutional reform. It grew out of, yes, the assassination of President Kennedy and the context of people thinking that in the nuclear age, you had to guarantee some level, the performance of government 24/7.

So there was a desire to get something done, but, of course, you had 535 different views as to how to get it done. So really some legislative genius that led to its passage.

MELBER: Let me put up on the screen so we`re clear exactly what we`re talking about, the language, which is where we often start, is that the president would be unable to discharge the powers. The vice president and the principal officers of executive department, or another other body, which congress hasn`t seen fit to create, would then inform this very severe process by written declaration. Then, the vice president would assume the powers as a term we never have used in modern history, but that does exist constitutionally as, quote, "acting president."

Now, if the president disputes -- something about lawyers, they`re always gearing up for the fight -- then two-thirds of the both the House and congress required to declare the president unable to discharge duties.

As applied to what Michael Wolff is reporting that has so many people talking, let`s begin with that last clause -- it assumes that a president is in the position to dispute.

BERMAN: Yes. The president is authorized under the constitutional amendment to declare that the decision taken by a vice president and a majority of the cabinet, in this case, because no other body has been authorized yet by the congress, he`s in a position to dispute that and then there`s a procedure.

MELBER: But that implies consciousness.

BERMAN: It implies consciousness, absolutely, positively.

MELBER: So then we go to the Michael Wolff question.

BERMAN: That`s right.

MELBER: Do you see anything from your knowledge of being part of drafting this amendment that it would be anywhere in the ballpark of being apply here.

BERMAN: Today? No.

MELBER: Why not?

BERMAN: Because I think there`s a difference between unable and unfit. I might think this president is unfit, because I disagree with virtually everything he says and does, but I don`t think he`s unable. In fact, if I go back, I think the fundamental issue here is we always envisioned the removal of a president under section IV as a political act, informed by medical authorities and decision making, but a political act to remove a duly elected president.

Donald Trump was elected to do exactly these things by the people who voted for him.

MELBER: I mean, you say that as a Democratic critic.

BERMAN: That`s the sad narrative in this situation. I don`t think we had a right to expect something else to be happening. And therefore, our level of disappointment is so great that we have to get rid of this guy. I mean, as a practical matter, the potential solution in this case, because people seem to be searching around to try to fit a square peg in a round hole and looking whatever it is, is impeachment. That`s the process. And quite frankly, impeachment, and we said this, there`s a legislative history of Senator Bayh on the floor of the senate saying this, that the bar of removal under section IV is higher than the bar for removal under impeachment.

MELBER: Well, it would seem.

So my final question to you, as someone involved in this and who is a Democratic critic with your bona fides in quite good standing is, do you worry that things like the 25th amendment and this discussion about the president`s quote/unquote sanity are efforts to impugn, delegitimize, or destabilize him through these tools rather than through the ballot box or the legal process?

BERMAN: Well, I think there are a lot of people who are simply so overwhelmed and consumed by the deviation from norms as we know them in the performance of the office of the president, and this is quite radical, that they are searching around for an answer. And, you know, someone maybe inadvertently before Michael Wolff said oh the 25th amendment. We know and Steve Bannon said, or it was quoted to say there`s a 33 percent chance. What does that mean?

MELBER: Very little I think is the answer.

BERMAN: Right, OK. So, if you don`t want to look at impeachment and you are looking around at the 25th amendment, well how is that going to work? Because it actually requires two-thirds of the House and two-thirds of the senate.

MELBER: Higher bar, yeah.

BERMAN: Much higher bar.

MELBER: Jay Berman, you`ve taught us a lot tonight, so it`s fascinating listening to you.

BERMAN: Thank you. My pleasure.

MELBER: I really appreciate you being here.

BERMAN: Thank you.

MELBER: We`re going to fit in a break, but a lot more ahead. Another big- name Republican announcing retirement. Democrats looking to pick up the seat and potentially flip the House in 2018.

And a disastrous first day of work. That`s Thing One and Thing Two next.


MELBER: Thing One tonight, it was a rough first day for Trump`s new ambassador to The Netherlands, Pete Hoekstra. You`ll remember last month, he had an odd exchange with a Dutch reporter who was fact checking the ambassador on spot with video.


UNIDENTIFIED MALE: Speaking of threats, at one point you mentioned in a debate that there are no-go zones in The Netherlands and that cars and politicians are being set onfire in The Netherlands.

PETE HOEKSTRA, U.S. AMBASSADOR TO THE NETHERLANDS: I didn`t say that. That is actually an incorrect statement. We would call it fake news.

UNIDENTIFIED MALE: Is that fake news, because it`s what you said.

HOEKSTRA: No, it`s not what I said.

The Islamic movement has now gotten to a point where they have put Europe into chaos. Chaos in The Netherlands. There are cars being burned. There are politicians that are being burned. And yes, there are no-go zones in The Netherlands.

UNIDENTIFIED MALE: You call it fake news, obviously...

HOEKSTRA: I didn`t call that fake news. I didn`t use the word today.


HOEKSTRA: No. I don`t think I did.



MELBER: "I don`t think I did."

Two days later, Hoekstra said he did regret that exchange, but he did not apologize or really dig into addressing the 2015 comments.

Now, how did that play at his first interview with Dutch media today? That is Thing Two in 60 seconds.


MELBER: The first day for Trump`s ambassador to The Netherlands started off pretty well with a ride in a very nice carriage and he got to meet the king, and then he met the Dutch press.


UNIDENTIFIED MALE: Will you will visiting our no-go areas?

UNIDENTIFIED FEMAEL: In light of your recent interview, have you considered having time to recuse yourself?

UNIDENTIFIED MALE: Do you now reached the conclusion that you were wrong when you stated that politicians and cars are being burned?

UNIDENTIFIED MALE: Are politicians being burned in The Netherlands in the past? Is that something you believe, yes or no?

HOEKSTRA: I`m not revisiting the issue.


MELBER: Some tough journalists out there.

Now, after refusing to discuss his own comments, Pete Hoekstra got quiet.


UNIDENTIFIED MALE: Did you read the quote over the fireplace from John Adams?


UNIDENTIFIED MALE: If you`re truly an honest and wise man, could you please take back your remark about burned politicians or any politicians that were burned in The Netherlands?

HOEKSTRA: Yes, thank you.


UNIDENTIFIED MALE: Are you going to answer the question?

UNIDENTIFIED MALE: Mr. Hoekstra, can you mention any example of a Dutch politician who was burned recently?

UNIDENTIED FEMALE: Good morning, ambassador.

HOEKSTRA: Good morning.

This is not how this works, guys. Come on.

UNIDENTIFIED FEMALE: This is The Netherlands. Answer the questions.

UNIDENTIFIED MALE: This is not how it works.

UNIDENTIFIED FEMALE: Will you please answer the questions.

UNIDENTIFIED MALE: No, you didn`t. You didn`t answer mine.

HOEKSTRA: Yeah. (inaudible).

UNIDENIFIED FEMALE: You didn`t answer his question, you didn`t answer his question.

UNIDENITIFIED FEMALE: If you don`t have any further questions, then we can move on.



MELBER: Honestly, it`s pretty devastating. We will note the first day on any job does often have a learning curve and we are wishing Ambassador Hoekstra good luck.


HOEKSTRA: I stand before you as the new ambassador from the United States to The Netherlands. It is a truly humbling experience.



REPRESENTATIVE DARRELL ISSA, (R) CALIFORNIA: To come before the committee I chair, the oversight committee, the one you produced these documents to, in the January time frame without the need for a subpoena?


ISSA: Do I need to serve a subpoena on yourself and Lanny Brewer and the other people under direct investigation in my committee, or will you agree to come voluntarily in the January time frame before the committee?

HOLDER: I will consider any request that you make.

MELBER: California Republican, Darrell Issa, who spent a lot of time on the House Oversight Committee investigating the Obama administration, now announcing his retirement this afternoon after nearly two decades in Congress. He`s the second California Republican to announce retirement this week.

Ed Royce, the chairman of the House of Foreign Affairs Committee said that on Monday. That`s now 21 Republican house members who are quitting and it`s only January of this midterm year, compare that to just seven Democratic house members now retiring outright.

The discrepancy may not bode well for Republicans, Democrats need to pick up 24 seats to flip the house, no easy feat, but as Republicans like Issa continue to retire in districts that Clinton won though, then the more the house Republican majority would seem to be at a numerical risk.

Another question in politics is why are these Republicans retiring? Well they may be fearing backlash against their party in thee next election as result of Donald Trump. Here`s what Republican and congressman Dave Trott said about his decision to quit.


UNIDENTIFIED FEMALE: You`re not running again?



TROT: Just not the right time for me to be in Washington. We`re not that productive, and that certainly isn`t just a consequence of President Trump, they weren`t that productive before he got there, but it`s just not the right time for me to be serving.

UNIDENTIFIED FEMALE: How much is President Trump a part of this.

TROTT: It`s a factor. We have different styles and I sometimes don`t understand what he does and says.


MELBER: I`m joined now by David Jolly, a former Republican congressman himself from Florida, and Cornell Belcher, MSNBC political analyst and a Democratic pollster.

Now David you are what these individuals are planning to become, a former Republican member of Congress.


MELBER: Do people in that line of work sometimes retire because they`re afraid they`re going to lose the next race?

JOLLY: Of course. If you`re Republican from a purple district going into 2018, you`re looking at job applications at Taco Bell or Target. And the good news is Target pays $15 minimum wage by 2020.

Under Donald Trump, if you`re reasonable Republican, this is a terrible job. There is very little ability to represent your constituents and your community in a party that is led now by this person with neonationalist sympathies and with alt-right sympathies and with somebody with very little leadership who has hijacked the party.

Look, we can`t overlook the fact that in the seven special elections we`ve had in this cycle, Republicans have underperformed in every single one, and none of those districts have been competitive districts. And so, going into 2018 as purple district Republican, you`re going to lose in 2018 if you`re in a purple district.

MELBER: Well Cornell, David says this comes out of weakness and he cites Taco Bell, what is your view here? Do Democrats need to think outside the bun?

CORNELL BELCHER, MSNBC: It`s a taco bell reference, I get it.

One of the things you`re looking at right now -- but I do want Democrats to sort of curb their enthusiasm -- but when you look at what is happening now and compare it with 2006, our last wave election, you do have some things similar.

I can`t underline how important retirements are this year because they were also critical to 2006, because it`s really hard to take out an incumbent of either party. When you have open seat race, a lot of them go from lean Republican to toss-up. It`s big.

Also like 2006, what you had was a president with approval ratings in the 30s and a Congress with approval ratings hovering around the mid to high 20s and a country is thinking that things are heading the wrong direction.

All of that bodes well for a sea change election. However, at the same time you still do have Democrats right now with their brand not very well positioned. This is all about what anger and disappointment with Donald Trump, none of this is actually about Democrats right now. Hopefully in the next four or five months some will become what Democrats vision, what they want to do.

MELBER: Well Cornell, what would the message be other than opposing Trump?

BELCHER: I think one of the messages has to be a positive vision. It has to be an upbeat vision about the future and how we secure the future. How we make things more affordable. Affordability is big deal right now whether you are talking about health care and college, we have to put forward a plan.

But we also have to put forward our values of how we are against the divisiveness and we are for bringing people together, working across party lines and bringing all of America together to secure a better future. I think there`s some there there in that.

MELBER: David?

JOLLY: To Cornell`s point, I don`t think there`s an American tonight who could tell you what Democratic message is or who their leader is. That`s really important because of all the chaos in Republican politics, the tax bill allows Republicans going into November to say we`re for lower taxes, Democrats voted for higher taxes. Elections are decided on contrast. That`s a very important contrast that Democrats have to overcome.

MELBER: There`s a nonpartisan expert at Cook Political Report, Dave Wasserman, and he says look, people haven`t factored in how much worse things could get for House Republicans in the next 300 days. But David, even as a fellow traveler and sometime critic, the House Republicans are going to say at least in some districts well, they finally got a bill passed with taxes and they may be able to hide some of the negative impact on that because people haven`t felt it yet.

JOLLY: Sure, and I don`t believe the race will be decided over Russia. This is a constitutionally grave moment over Russia, over the president`s fitness. But at the end of the day as Bill Clinton said, it`s the economy stupid. The economy is doing well. There are tax cuts in place, regardless of the fact that they prefer corporations and rich rather than main street, the reality is that people are going to be feeling good come November.

This is a challenge for Democrats. Now, ground is falling away from Republicans, all the energy is on the left. They can`t wait to get to November. This is the Democrats` to lose but they need their message and they don`t have it right now.

MELBER: And Cornell, I think David just made an important observation that is somewhat counter intuitive, one thing that everyone in Washington seems to agree on is that a constant focus on Russia is somehow good for the Democrats. I make that observation because a lot of top Democrats are pushing that topic above any other, and I make that observation because Donald Trump and his people think that`s why they`re doing it, partisan impugning.

While it is incredibly important national security/legal story, many people have made the basic observation it could be the most important story since Watergate, speak to David`s critique of D.C. Democrats thinking that Russia, separate from its import, is also somehow a political tailwind.

BELCHER: Well, I don`t think all D.C. Democrats feel that way. I think there is some Democrats, you know, like Senator Warner of the great state of Virginia, my state, trying to get to the truth. Doing what Congress is supposed to do, Democrat or Republican, supposed to get to the truth, especially on issues of security.

I think Russia thing helps. I think an unpopular -- I saw the polling that voters were more likely to vote against a member that voted for this tax plan and I will remind you that Obama also cut taxes, People didn`t necessarily feel them at the same time.

I think that the Republicans is their agenda. Their agenda is not something that American people broadly have wanted. American people have not overwhelmingly wanted the repeal of Obamacare or tax cut for rich people or offshore drilling.

So the problem here is their issue agenda. Does Russia help? Yes, but to the congressman`s point, I don`t think the election will be won or lost because of Russia, but it certainly helps Democrats.

MELBER: Interesting points, and not all what you might have expected to hear. Cornell Belcher and David Jolly, I want to thank you both. And David, David, let`s talk Taco Bell anytime. You want to get some Gorditas we`ll go out.

JOLLY: You got it.

MELBER: That is our show All In for this evening. I`m Ari Melber, filling in for Chris Hayes.

I want to tell you about something we are excited about tomorrow night. I have a show on MSNBC, it airs 6:00 eastern. Tomorrow I have an exclusive interview with a woman Riva Levinson. She wrote this piece about her time working with Paul Manafort alleging he lacked a total moral compass. She worked, of course, at that firm he ran with Roger Stone and others doing a lot of international consulting.

That`s tomorrow in our show at 6:00 p.m. eastern. I hope you will consider joining me for it. I also want to say thanks to Chris Hayes for letting me sit in tonight. It`s been a lot of fun. That`s the end of my time and I`m very happy to toss it over to Rachel Maddow. How are you Rachel?



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