Show: ALL IN with CHRIS HAYES Date: July 2, 2018 Guest: Jason Leopold, Michael Rothfeld, Irin Carmon, Leon Wolfe, Nancy Gertner, Dara Lind
STEVE KORNACKI, NBC NEWS NATIONAL POLITICAL CORRESPONDENT: "ALL IN" with Chris Hayes starts right now.
(BEGIN VIDEO CLIP)
CHRIS HAYES, MSNBC HOST: Tonight on ALL IN.
UNIDENTIFIED FEMALE: Does the President worry after comment this morning that Michael Cohen wants to flip?
HAYES: Trump`s fixer flips his priority.
MICHAEL COHEN, FORMER LAWYER OF DONALD TRUMP: I`ll do anything to protect Mr. Trump.
I put family and country first.
HAYES: Tonight, why Michael Cohen is publicly breaking with the President and just how worried should Donald Trump be.
UNIDENTIFIED MALE: The substance of what he told ABC, if it`s true should cause the President sleepless night.
HAYES: Then, why a top Republican fundraiser suddenly ended hush payments to a Playboy model? Plus, as the President meets with potential nominees - -
UNIDENTIFIED FEMALE: Would the president like to see Roe v. Wade overturned?
HAYES: Why Republicans keep hiding from the abortion question. And in the wake of massive protests --
AMERICAN CROWD: No more payment! No more Payment!
HAYES: New reporting on the indefinite detention plans for migrants when ALL IN starts right now.
AMERICAN CROWD: End family detention!
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HAYES: Good evening from Chicago, I`m Chris Hayes. Michael Cohen sure sounds like a man who is about to flip on the President of the United States. Sitting down with ABC`s George Stephanopoulos over the weekend in his first interview since being raided by the FBI two months ago, Cohen publicly distanced himself from the President declaring my wife, my daughter, and my son have my first loyalty and always will. I put family and country first. Now that sounds reasonable but it is a major about-face for a man who has previously sworn undying loyalty to the President and his family. A man who said he would take a bullet for Donald Trump and has defended him through the ugliest moments of his political career.
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JAKE TAPPER, HOST, CNN: How do you explain that there`s no evidence, no video evidence for what Mr. Trump claims he saw on television? How do you explain that?
COHEN: I`m not so sure that that`s true and I`ve worked for Mr. Trump now for a long time and I do -- and I can tell you that Mr. Trump`s memory is fantastic and I`ve never come across the situation where Mr. Trump has said something that`s not accurate.
TAPPER: There are -- seriously?
COHEN: Yes seriously.
(END VIDEO CLIP)
HAYES: ABC News also reports that Cohen`s joint defense agreement with the President that allows their legal teams to share documents and information, that agreement is coming to an end as a new lawyer takes over Cohen`s case. And that is exactly what Michael Flynn did last fall. His attorneys also cutting off communication with the President`s attorneys one week after the New York Times broke that story, Flynn pleaded guilty and agreed to cooperate with the Special Counsel. If ABC report is true, it does look like very bad news for the President for whom Michael Cohen has done all kinds of let`s say dubious work over the years. We know he brokered the President`s hush money payment to Stormy Daniels right before the election. He was spearheading efforts to build a Trump Tower in Moscow throughout the campaign and after election day, he courted Russian oligarch Viktor Vekselberg whose U.S. subsidiary went onto give Cohen a million-dollar consulting contract, one that was hidden in a Delaware LLC we didn`t know about until recently. Now, Cohen could have a lot -- could have a lot of information to share with investigator which might explain why the President had a bit of a public meltdown after the FBI raided Cohen`s office.
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DONALD TRUMP, PRESIDENT OF THE UNITED STATES: So I just heard that they broke into the office of one of my personal attorneys, good man and it`s a disgraceful situation. It`s a total witch hunt. I`ve been saying it for a long time. It`s an attack on our country of the true sense. It`s an attack on what we all stand for. So when I saw this and when I heard it, I heard it like you did, I said that is really now at a whole new level of unfairness.
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HAYES: The President later tweeted "most people will flip if the government lets them out of trouble even if it means lying or making up stories. Sorry, I don`t see Michael doing that. Cowen`s public break with his former boss comes just as the federal probe into his business dealings enters a new phase Today the judge that was assigned to review all the materials that were seized in that FBI raid known as the Special Master turned over to federal prosecutors everything found not to be protected by attorney-client privilege, that`s the vast majority of the materials found. The grand total 1.3 million items is now in prosecutors hands. Among those materials according to an earlier court filing were over a dozen pages of shredded documents which investigators had to fit back together piece by piece. And now, BuzzFeed News has obtained what it says are those recovered documents. I`m joined down by one of the reporters who managed to get those documents, Jason Leopold Senior Investigative Reporter for BuzzFeed News. I guess I`m not going to ask you how you got them, although that is a question I would love to know the answer to.
JASON LEOPOLD, SENIOR INVESTIGATIVE REPORTER, BUZZFEED NEWS: I`m not telling you, Chris.
HAYES: That`s good of you to do that. What do we learn from them?
LEOPOLD: Well, you know, when Michael Cohen was raided back in April shortly thereafter they recovered documents from his shredder in his office and they pieced these documents back together. There`s lots of speculation at the time that perhaps there was a smoking gun in these -- in the documents that he shredded. What we found is basically that you know, some of the speculation was somewhat overblown. There is a copy of a wire transfer -- excuse me -- that was made to an account at First Republic Bank that was controlled by Michael Cohen which had previously been reported. This kind of fits in with some of the payments that was made to Cohen by Elliott Broidy the Republican fundraiser, this was actually back in March. And another document appears to be an insurance payment of some sort or insurance documents. There`s also an invitation to a dinner reception in Qatar -- excuse me -- in Miami to Miami Florida to celebrate the Qatar business community. And then finally there is a number of pages from a woman who -- a California woman who claims that she was harassed and blackmailed by Donald Trump court papers. When we did some research on her, described her as a vexatious litigant who has been bombarding the federal courts with a number of different filings and lawsuits. So right now it`s kind of difficult to tell if this is -- if this will be of any help or (AUDIO GAP) are interested in at this point.
HAYES: So two things. One, just to be clear on the -- so the $62,500 that was a wire transfer that we think that comes from Broidy into Cohen as payment to Cohen or as part of the arrangement for him to then transfer it to Shera Bechard, the woman that allegedly Broidy had an affair with?
LEOPOLD: Yes, the latter would be correct. And that`s essentially what we think. We haven`t been able to get an answer you know, to that question of course, but it does seem to fit in with that narrative that`s been floating out there.
HAYES: We should -- we should note -- I mean, these are what 13 documents I think that taken out of the shredder on the day that they were -- that he was raided and reconstituted. There`s 1.3 million documents that have been turned over. The vast majority I think is 99.9 percent when there was this privileged claim made by both the President and Michael Cohen, the Special Master said no this stuff isn`t privileged. So federal investigators and the prosecutors got their hands on a huge trove of documents today.
LEOPOLD: Yes, I mean this is just a sliver of obviously of what they have their hands on. But this, you know, these documents, the ones that were in the shredder, there was a lot of discussion revolving around it as to what did Michael Cohen (INAUDIBLE).
LEOPOLD: And so when we took a look at this last week and started reporting on it, what we found was you know, some of it was previously reported on that one document the -- excuse me -- the wire transferred to First Republic Bank, that specific document has not been revealed before. I haven`t seen that out there. So that`s -- although it`s been reported, it`s a confirmation of sorts but obviously there`s a lot more out there. I think this however is not the smoking gun perhaps that people were --
HAYES: You did not -- you do not find the I did crimes post it that was (INAUDIBLE) and run through a shredder.
LEOPOLD: Exactly. To be clear there`s nothing in here that mentions Putin or collusion or anything of that sort. So --
HAYES: All right, Jason Leopold, great to have you.
LEOPOLD: Thank you, Chris. I appreciate it.
HAYES: For more of Cohen problem comes public break the President I`m joined by NBC News Investigative Reporter Tom Winter. Tom, one of the sort of precipitating incidents it appears in terms of the tying all this, the end of the joint defense agreement is a new lawyer Guy Petrillo. He`s someone who actually worked in the Southern District of New York right?
TOM WINTER, NBC NEWS INVESTIGATIVE REPORTER: Yes, absolutely, Chris. He`s a very well-respected attorney, well-known in the Southern District. Somebody who has a significant experience and background both white-collar crime and just overall crime in general. So he`s somebody who comes from a little bit of a smaller firm but is somebody who`s very respected. I just want to briefly touch on that report that you`re referring to with ABC. This was something that was ordered by the judge. So the judge actually put the slides together put and Cohen`s attorneys, the Trump Organization and Trump together on this. And the reason why this is ending is just because the Special Master review of all the material that was seized in that search warrant is ending. So it`s not an agreement that they had amongst themselves. It was an agreement that the judge ordered at the time so that`s why you`re seeing this dissolved.
HAYES: You`re saying the agreement between -- the agreement between Trump and Mike -- of Trump`s attorneys and Michael Cohen`s attorneys.
WINTER: That`s exactly correct. Yes. This was something that was put together. The Judge Kimba Wood who`s overseeing the review of the material said, hey, Michael Cohen`s team, you`ve got to go through all this stuff and assert what`s attorney-client privilege and then pass that material on to the President`s attorneys as well as the Trump Organization attorneys and then they can see if they have anything that they want to add as far as material that maybe attorney-client privilege and then the Special Master will review it. So this was kind of a shotgun wedding if you will that was put together by a judge not necessarily a formalized agreement between the three parties. Although their interest to some degree are quite aligned and certainly the President`s interest and the Trump Organizations interests are probably pretty much one of the same.
HAYES: What is your sense of -- I mean, so we`ve now sort of reached the end of what was this kind of judicial review the Special Master going through. There`s nothing right now in terms of what the FBI has or the SDNY and Michael Cohen to further do, right? They just take the documents and they`re going to sit with those and figure out and Michael Cohen what, waits by the phone or is his lawyer reaches out?
WINTER: Well, I think you know, the document review is just a portion of this. So in total, it`s four million -- four million pieces of evidence or items that they`ve been able to look at so far. And so, the prosecutors are going to look at this. They`re going to look at all the various cell phone records, see if those match to meetings, see if those match the documents. They`re going to have text messages that they`re going to have access to. They`re using the cell bright software in this, Chris, which means that even if you try to delete a message on your phone, there`s going to be a record of that. They`re going to have a record of that and be able to look at some of that information, photographs, pictures.
There`s well over a dozen pieces of media here so they`re going to review that. In addition to that, they`re going to be able to start to ask questions based on those pieces of evidence and those items that they`ve gotten out of this search warrant so they`re going to want to talk to people. At some point presumably they`re going to want to talk to people in front of a grand jury to memorialize that testimony to be able to get it on the record so they can start to build out and sketch out this possible indictment here. We don`t know for sure that he`s going to be indicted but that would be the next steps. It`s like building a house, Chris. Basically these prosecutors and the FBI agents, they`re the architects and builders. They`re going to weigh the various materials that they have, concrete, roofing materials, timber, and look at this and say OK, what do we actually have here and what can we actually build?
WINTER: And if Michael Cohen -- you know, you were talking about it before with respect to possible cooperation, if Michael Cohen comes in and says well, I can help you build my house and I can help you build a couple other houses to put in other people or to build other cases to bring in other people to this, they`ve got to evaluate when he`s bringing to the table. So they have to look at OK, Michael, so what are you -- what do you have to offer us? What do you have to say and then try to corroborate any information he may bring forward, Chris. It`s going to be a bit of a challenge.
HAYES: All right, NBC`s Tom Winter, thank you.
HAYES: To help figure out what to make of Michael Cohen`s interview I`m joined by MSNBC Legal Analyst Nick Ackerman, former Watergate Prosecutor and MSNBC Contributor Joyce Vance, a former U.S. Attorney. And Joyce, let me start with you as someone who prosecuted cases as Federal Prosecutor. I find Cohen`s behavior strange and I`m not quite sure what to make of -- make of it. This seems like a sort of a lot of dangles for the President. I want to -- I want to read one section of the interview which again wasn`t on camera which is he said, I will not be a punching bag as part of anyone`s defense strategy he said emphatically. I`m not a villain of the story. I will not allow others to try to depict me that way. What do you -- what do you make of Cohen`s behavior here?
JOYCE VANCE, MSNBC CONTRIBUTOR: The entire interview done publicly on national television after announcing it on Twitter is a little bit unusual of a tactic for a potential criminal defendant. If I were a defense lawyer which I`ve never been, I don`t think I would advise any of my clients to do that. Prosecutors don`t like to negotiate plea agreements in public. So you know, Cohen`s got Guy Petrillo this sort of story, the SDNY prosecutor coming on board. And one assumes that if Cohen wants to talk to prosecutors in SDNY about it a deal, Petrillo can just pick up the phone and do that. So it seems far more likely that Cohen is talking to that proverbial audience of one that we hear so much about, the President. And he let the President know exactly when he could turn on his T.V. and tune in to hear what Cohen had to say and it looks like that last you know, drowning man gasp, the last time your head goes above water and you say please throw me a lifeline Mr. President so I don`t have to flip and testify against you.
HAYES: You know, it`s -- this is -- Michael Avenatti who of course represents Stormy Daniels in the lawsuit against Michael Cohen. He -- that was sort of history. I want to play what he had to say and Nick and get your reaction. Take a listen.
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MICHAEL AVENATTI, LAWYER OF STORMY DANIELS: I tell you, I think this interview this morning and in a big way was a big nothing burger. This is Michael Cohen trying to send the message to the President that he wants the President to pay his legal bills or he`s going to flip. You know, he`s playing games with the American people. If he has information that`s damaging to this President and I know for a fact that he does then he should come forward and state it and disclosed it now.
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HAYES: What do you think, Nick?
NICK AKERMAN, MSNBC LEGAL ANALYST: It`s not so clear to me that he`s trying to get Trump to pay his legal fees -- bills. It`s also very possible that he`s being harassed, he`s being pressured by all the various Trump surrogates to keep his mouth shut. And maybe this is his way of saying to the President I`m my own person. I`m going to do what I want and what`s best for me. I may be a way for him to get everybody off his back but I agree with Joyce, there is no reason for Michael Cohen to do this in public or to even be saying this. I am a defense lawyer. I would never allow my client to do this on national T.V. I really don`t see what the upside is here at all.
HAYES: You know, I feel the same way. This whole thing has been such a strange excruciating story in the last two months. I mean, just excruciating in terms of sort of watching it unfold and watching it unfold so publicly, Joyce. I mean, it`s a hard thing to think of a reference for because it`s played out so publicly and it involves -- you know it involves the sitting President of the United States. I`ve just never seen anything like this unfold in the public eye before.
VANCE: I just don`t think that we have. And the really bizarre nature of Cohen`s relationship with Trump, this asymmetric relationship where he calls the President Mr. Trump and Trump speaks about him as well, you know, just one of my attorneys, you almost -- there`s a little bit of pathos to Cowen`s position and you know, I think that we`re about to see him become the next coffee boy in the Trump administration but the problem will be there`s 1.3 million documents now in the hands of SDNY prosecutors.
HAYES: And also, Nick, I mean there`s just -- as I follow this story and I know you fought very closely, there`s just a bunch of factual questions I`d love the answer to which it seems likely that that the prosecutors now have an answer to. You know, did he go to Prague or did he not. As he said he didn`t go, you know, the dossier alleged he did. What was the deal with the peace deal that he put into the hands or delivered the White House for Michael Flynn when he was still the National Security Adviser on behalf of a sort of Russian (INAUDIBLE) Ukrainian politician. How much did they talk about the you know, Trump Tower Moscow through the campaign. I mean, all this stuff presumably there are answers to and it would be nice to know them.
AKERMAN: Yes and I think that`s why these documents are so important. They are also, these documents, could make Michael Cohen an extremely valuable witness. The question with each of these cooperating witnesses is to the jury are they telling the truth. I mean you`ve got two of the witnesses who have clearly lied, Michael Flynn and Manafort`s deputy. They both have lied to the FBI. So the question isn`t going to be did they lie before but are they telling the truth to the jury now. And so the way that they can do it with Michael Cohen is these million-plus documents. I mean, is there information in there? Are there tapes? Are there documents that corroborate with Michael Cohen can say against various people who may very well be indicted. And that`s kind of the challenge that Mueller has got right now with all of these witnesses trying to put together a case where he can argue to the jury you don`t necessarily have to believe any one of these witnesses because you`ve got all of this other corroboration.
HAYES: That is a great point. Nick Ackerman and Joyce Vance, thank you both for joining me.
AKERMAN: Thank you.
VANCE: Thank you.
HAYES: Next, one of just three people that Michael Cohen claimed to have given legal advice to in the last year, that would be GOP fundraiser Elliott Broidy is now ending hush money payments to a former Playboy model. The bizarre, always bizarre details of that story in two minutes.
HAYES: A really weird story about a prominent Republican making hush money payments to an adult performer has just gotten even weirder. And no, it`s not the one you`re thinking of. Back in April, the Wall Street Journal reported that this guy Elliott Broidy who was at the time the Deputy Finance Chair of the RNC had agreed in late 2017 to pay $1.6 million -- not a small amount of money -- to a former Playboy Playmate named Shera Bechard. In a statement Broidy said, I acknowledge I had a consensual relationship with a Playboy Playmate. At the end of our relationship, this woman shared with me that she was pregnant. She alone decided she didn`t want to continue with the pregnancy and I offered to help her financially during this difficult period. Now more on that strange statement in a moment.
Broidy stepped down from his post of the RNC but the story did not go away in large part because there are some striking similarities between the story of Elliott Broidy`s hush money agreement with the Playboy Playmate in his own words and Donald Trump`s hush money agreement with the adult film actress Stormy Daniels especially since they were both negotiated by Trump Lawyer Michael Cohen who, get this, even used the exact same template in both agreements. Also, both women happen to have been represented by the same lawyer Keith Davidson which is also extremely weird. The similarities prompted a lot of speculation about what was really going on here and now there`s a new twist.
The Wall Street Journal reported yesterday that Broidy has decided to stop the hush money payments after only two of a promised eight installments of $200,000 each. Joining me now to explain what is going on with Broidy is the Co-Author that story Wall Street Journal Investigative Reporter Michael Rothfeld. All right, Michael, why is Eliot Brody stopping his payments to Shera Bechard?
MICHAEL ROTHFELD, INVESTIGATIVE REPORTER, WALL STREET JOURNAL: Well, basically because the agreement has become public and he believes that someone on her side breached the agreement. He said that Keith Davidson who represented her in the deal that you just alluded to told Michael Avenatti, the lawyer -- current lawyer for Stormy Daniels about this deal. Avenatti tweeted an allusion to the agreement the night before we reported it in April and Brody now says he has information that Davidson breached it which Davidson denies but he`s saying since someone breached it, I don`t have to pay any more. He`s paid $400,000 so far out of the $1.6 million but he did not make the payment that was due yesterday.
HAYES: All right, so presumably this will now go to court, right?
ROTHFELD: It remains to be seen as possible that you know they could try to work something out. She has new attorneys and so she could theoretically sue Broidy. She could sue -- try to sue Keith Davidson if she believes he breached it. So you know, it should be interesting because if she does sue him, we will presumably learn more about what happened, how this all went down and you know, I guess if we want to about their relationship.
HAYES: Well, OK, so I should say that Davidson -- a spokesman for Davidson said the lawyer hasn`t breached any agreement. Any accusation the contrary is false and defamatory said his spokesperson. But I want to -- let me ask you this. How confident -- how confident are you that Elliott Broidy had a sexual relationship with the woman in question Shera Bechard?
ROTHFELD: Well, I`m very confident that they have an agreement -- if you`re asking me if Donald Trump had a sexual relationship with the Shera Bechard, I`m quite confident that did not happen, and I believe that you know, the agreement was between Broidy and her and that they were the ones who had the alleged relationship or not having been there obviously, I can`t say you know, what happened in their bed. But you know, there`s absolutely no facts to suggest otherwise. We`ve reported it from all sides. There`s no one, not one bit of information that we`ve found that would suggest that anyone other than Elliott Broidy was involved in this -- in this relationship.
HAYES: Do you have a good theory for Michael Cohen`s involvement in this? I mean, I guess we`re -- they just like knew each other from being both deputy finance chairs of the RNC and he`s like hey, I`ve got a Playboy Playmate situation. I need your help.
ROTHFELD: Yes, basically. Well, so Davidson and Cohen had worked together on the Stormy Daniels agreement and they also dealt with each other on the Karen McDougal agreement. She was the Playmate who had $150,000 hush payment from the parents of the National Enquirer. That was both in 2016. So when Bechard came to Davidson, he called Cohen because he knew Cohen might know Broidy and then Cohen is like, yes, I know him. And as we reported, Cohen called up Broidy and said hey, it`s your lucky day. You know, you have a big problem. There`s a former Playmate who says you got her pregnant and I can help you fix it. So that`s how it went down. Cohen was paid $250,000 and you were asking an earlier guest about the $62,500 payment. That was a quarter of Cohen`s fee that went to him. The $200,000 payments for what, eight installments that were paid to Bechard.
HAYES: So he`s now cutting off payment. Sure, Bechard has gotten a new lawyer. Keith Davidson has been sued by one of his former clients in Stormy Daniels for his representation and presumably -- I mean, maybe Shera Bechard will just walk away from $1.2 million but that seems unlikely. It seems likely that we`re going to see this and also ending up in court fairly soon.
ROTHFELD: Yes, unless they say they negotiate some kind of a settlement and if she doesn`t think she has a good case maybe she and Broidy could settle for half of it, you know, maybe $600,000. I mean I`m -- just pure speculation but you know, it`s quite likely that this will end up in court.
HAYES: I will say you mentioned Story Daniels and Karen McDougal, two other people with NDAs negotiated in part at least by Michael Cohen. That -- Shera Bechard is someone a lot of people want to talk to on the record. She is locked under an NDA but presumably, if Broidy is walking away from that, she would be able to tell her story.
ROTHFELD: Yes, that`s true. I mean, I don`t know what legal advice for lawyers will give her but she certainly may have a lot more information she could talk about relating to Elliott Broidy and their relationship and could also settle some of the speculations that you might be talking about that you were talking about earlier.
HAYES: Yes. Well, I just want to know the truth. That`s all. Michael Rothfeld, thanks for being with me tonight.
ROTHFELD: Thanks for having me.
HAYES: Ahead the key senators refusing to give a straight answer on Roe v Wade. Why Republicans continue to try and dodge the central abortion question ahead of the President`s nomination of a Supreme Court Justice next.
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SEN. SUSAN COLLINS, (R) MAINE: A candidate for this important position who would overturn Roe V. Wade would not be acceptable to me because that would indicate an activist agenda that I don`t want to see a judge have.
(END VIDEO CLIP)
HAYES: Republican Senator Susan Collins, possibly a key swing vote in the upcoming Supreme Court justice battle, gave two different answers yesterday when asked about supporting President Trump`s nominee.
One answer, as you just heard, drew a fairly clear line, or appeared to, on Roe V. Wade. The other didn`t.
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JAKE TAPPER, CNN ANCHOR: Don`t you think, just as an academic matter, Neil Gorsuch, for whom you voted, don`t you think he`s probably going to vote to overturn Roe versus Wade if given a chance?
COLLINS: I actually don`t. I had a very long discussion with Justice Gorsuch in my office, and he pointed out to me that he is the co-author of a whole book on precedent.
(END VIDEO CLIP)
HAYES: Now, since Collins and her Republican colleague Senator Lisa Murkowski, are both supporters of abortion rights, at least they say they are, pro-choice advocates are hoping the two senators will prevent a judicial attack on the 1973 decision that legalized abortion nationwide, found it to be a constitutionally protected right.
But right now both women aren`t saying much to put abortion rights advocates at ease, quote, "Ms. Murkowski has said that she will consider a nominee`s views on the abortion rights case, but that it alone would not be a litmus test for her choice."
Joining me now is journalist Irin Carmon, co-author of the "Notorious RBG." She`s got a piece today in The Washington Post titled "Yes, conservatives will try undue Roe versus Wade, the only question is how." Also with me, Nancy Gertner, a retired federal court judge and senior lecturer at Harvard Law School, and Leon Wolfe, managing editor of The Blaze.
Leon, let me start with you, I`ve been sort following with some fascination conservative reaction to this court opening. You know, the Republican Party is an anti-abortion party almost entirely, that`s a sort of consensus view. The legal stars of the conservative movement in the Republican Party are opposed to abortion, many think that Roe was terribly decided and sloppy.
And then all of a sudden everyone gets bizarrely quiet when the opportunity is up for a Supreme Court justice, who would presumably provided fifth vote to overturn Roe. And I don`t quite get it. Is it just politics? Is it fear of the politics of it?
LEON WOLFE, THE BLAZE: Well, look, Chris, I`m in my early 40s. And I remember the Robert Bork confirmation hearings. And so anybody who`s my age or older, which includes everybody in the United States Senate right now, is not going to go through that again. They`re just not.
You know, I think that the precedent was set that you know, a judge`s ideology can be enough to torpedo them. And so I think that`s the lesson that the GOP took away for probably two or three generations when it comes to this fight.
And you know, it is kind of a sad and unfortunate effect of the way that Roe versus Wade, I think, poisons our national politics. I mean, I know a lot of people are confused as to how anybody could vote for Donald Trump. I mean, I didn`t vote for him, but I understand why people did. And it`s because they feel democratically shutout of having a voice in the abortion issue until it goes way in terms of the SCOTUS, and so that`s where we are.
HAYES: What do you think of that, Irin?
IRIN CARMON, AUTHOR: Well, I mean, where do I start? Don`t ask don`t tell is alive and well. There is an enormous amount of gaslighting happening right now where the reason Donald Trump became president was based in part on his explicit promises, and these were unprecedented promises, to appoint justices that would, in his words, automatically overturn Roe v. Wade.
So, the kind of innocence that we`re seeing this week where people are claiming that it`s scare-mongering to fear that a justice appointed by Trump to replace Kennedy would in any way have anything to do with Roe v. Wade.
I mean, this is a political transaction that took place in the open. The head of the Susan B. Anthony list said in January 2016 don`t vote for Trump, we can`t rely on him when it comes to Roe v. Wade only to then co-head his pro-life advisory council on the basis that he had promised her to appoint, quote, unquote, pro-life judges.
So, the idea that these activists who faithfully turned out for Trump who so far he has delivered on his promises for, are not going to get what they want -- now, what we`re going to see is more of a kind of stealth language around Roe. We`re not going to see people who have been as explicit as Bork, or perhaps as explicit as Ruth Bader Ginsburg when it comes to their ideas about reproductive freedom, but there is absolutely no question that Gorsuch, Roberts, and anyone who is appointed to replace Kennedy if Trump appoints someone and they`re confirmed for this senate, they are gunning for Roe. It`s only a question of how explicit will they be, how long will they take to get there, what legal theory they`ll use, but this is something that the right has been working on for 45 years and they have finally gotten their chance.
HAYES: I will note that Leon`s last point about feeling democratically shut out, and that`s Roe poisoning the system that way and people getting mobilizing is not at all inconsistent with what you`re saying, Irin. I mean, that is exactly the point, like the anti-abortion movement in this country is incredibly mobilized, incredibly strong, for precisely the reason that they genuinely don`t -- they want to see abortion banned, that is why they have...
CARMONE: Ruth Bader Ginsburg agrees with Leon. She would have preferred that it was taken -- that it was left to the states. But we also have 45 years of precedent and people who have organized their lives around legal abortion and we also have conservatives on the Supreme Court who have voted to uphold federal bans, so the notion that this is about states` rights is pretty disingenuous when you have Republicans introducing a nationwide 20-week ban just this year.
HAYES: Nancy, you`re a former federal judge. You`re a district court judge. And I wonder how you think about this? There seems like this crazy ball hiding with every sort of judicial confirmation battle where extremely smart, sophisticated people who`ve spent lots of time thinking about issues pretend that like none of it`s ever occurred to them and they`re all blank slates and it drives me insane.
NANCY GERTNER, FORMER FEDERAL DISTRICT JUDGE: Well, I think it`s a complicated -- it`s a more complicated situation. First of all, it didn`t begin with Bork, you know, Louis Brandeis was seriously attacked way back when. So, Bork was almost recent memory of that, but there have been political battles for a long time.
Maybe one way to look at it, you know, I was confirmed by the Senate as well. One way to look at it is there`s a range of reasonable positions that a judge can take and there`s no question that when a president is elected he will pick his range. And then there are, as we argued about Bork, people outside the range, people whose positions are not within the mainstream, people who are sort of willy-nilly going to overturn precedent.
And I think that within the range you`re right, it`s hide the ball, it`s a Kabuki ritual. You don`t want to talk about it. But the people who are outside the range, those are the ones we have to be talking about.
What makes this -- what makes Trump different is that I have never before heard of a president that had a slate. It`s like treating the bench, treating the judiciary like you would who`s going to be my vice president. I have a slate of candidates. That`s never been done before.
HAYES: Yeah, both the sort of explicit promise and the slate of candidates, which to Leon -- I think Leon helped him with conservatives. These are the five that they`re saying are on the short list now. Thomas Hardman, Raymond Kethledge, Amul Thapar, and Amy Coney Barrett, and of course Brett Kavanaugh who many people think -- or have been talking about forever.
Let me ask you this, Leon, you have David Souter, you have got Sandra Day O`Connor, you got Anthony Kennedy, all three appointed by Republicans, all three voting to uphold the core holding of Roe. If that happened, if Donald Trump were to appoint a justice who would vote to uphold the core holding of Roe, would conservatives feel angry and betrayed?
WOLFE: Oh, I mean, I think you only have to look back to 1992. I think that was one of the key elements that led to George H.W. Bush being defeated, that and the tax hike. I think those are the to things that as a Republican president you cannot do, which is number one raise taxes and number two appoint a liberal justice to the Supreme Court.
In previous years, yeah, but it`s become such a people on both sides of this great ditch throwing lava at each other that any more I don`t think that that`s going to happen.
And I would say that it`s not just Republicans who are concerned...
HAYES: Just to -- hold on a second. When you say not going to happen, what do you mean won`t happen?
WOLFE: Well, I mean, I just think if he does it I do think that he runs the risk of maybe somebody like John Kasich getting traction as a third- party candidate, kind of what happened in 1992, some independent coming up and taking 10 percent of the vote, you know, throwing it to the Democrats or whatever the situation is.
I don`t think that he`ll lose in the Republican primary, but I do think it will hurt his general election chances, I agree.
HAYES: Nancy, what were you going to say?
GERTNER: I want to back off for a moment, we are talking about a right that has been -- the court has been picking at and undermining and limiting for the longest time, so what`s really in the winds here is are we going to make abortion criminal again? That`s what Roe v. Wade now stands for, because to some degree it is the least protected right in the lexicon at this point.
So I also suggest that we`re not -- it`s really more than Roe v. Wade, although that`s what this discussion is about, the next Supreme Court is going to have to deal with issues of presidential power. If the Mueller investigation winds up challenging the president, there`s going to be issues of presidential power in addition to affirmative action, et cetera.
So I mean it is a complicated -- it`s a much more complicated discussion.
HAYES: Yeah. Irin Carmon, Nancy Gertner, and Leon Wolfe, thank you very much for joining us. Appreciate it.
CARMON: Thanks, Chris.
HAYES: Coming up, the resistance shows no sign of slowing down as the as the Trump administration replaces family separation with indefinite detention. New reporting ahead.
Plus, All In book club in tonight`s Thing One, Thing Two next.
HAYES: Thing One tonight, Donald Trump fancies himself a great salesman. He slapped his name on everything from food and beverages like Trump Steaks, Trump Wine, Trump Vodka and Trump Water, to a whole slew of now defunct goods, including Trump Cologne, Trump Mattresses and the Trump clothing line. One of his few successes was of course in books, with his best-seller "The Art of the Deal."
But true sales power is demonstrated by the plugging of someone else`s book, which Trump did over the weekend, quote, "a friend of mine, a man who has truly seen politics and life as few others will ever will, Sean Spicer, has written a great new book, `The Briefing: Politics, the Press and the President.` It is a story told with both heart and knowledge. Really good. Go get it."
And if you look at this sales chart, you can see the bump that happened when the president plugged that book. But if you look a little closer at that chart, you`ll see something else. And that`s Thing Two in 60 seconds.
HAYES: President Trump might not be much for book reading, but he`s happy to plug books by people who have remained loyal and haven`t spilled anything juicy about their six-month stint at the White House. And so new author Sean Spicer got a plug from Trump on Twitter for his new book coming our later this month.
And if you take a look at data from Novel Rank, a site that estimates Amazon book sales, you`ll see a big jump there on Saturday, the day the president tweeted about the book, more than a 130 percent increase in fact, except the grand total was, drum roll, please, 14 copies sold. Now, that is up from 6 the day before.
Now, to be fair, that does not include e-book sales, and Spicer did rack up nine of those on Saturday and then another eight on Sunday.
It is not immediately known whether the president was one of those pre- orders.
(BEGIN VIDEO CLIP)
TRUMP: Reading a book. I`m trying to get started. Every time I do about half a page I get a phone call that there`s some emergency, this or that.
I love to read. I don`t get to read very much, because I`m working very hard on lots of different things.
(END VIDEO CLIP)
HAYES: A historic victory in Mexico. Leftist candidate Andres Manuel Lopez Obrador winning that country`s presidential election on Sunday.
Amlo, as Lopez Obrador is known, has tried for the Mexican presidency twice before, in 2006 and 2012. He fell short those times, ones very, very narrowly, but this week a specific mix of factors propelled him to a resounding victory -- the rising violence that saw last year`s Mexico`s most violent year on record to endemic poverty, a gaping inequality gap, to entrenched corruption, which is front of mind for many throughout the government, all of which Lopez Obrador promised to combat.
Unsurprisingly he is also a harsh critic of Donald Trump, having even written a book "Oye Trump,` whose title translates to Listen Up Trump.
Today, Donald Trump tried to make nice.
(BEGIN VIDEO CLIP)
TRUMP: I just spoke with the president-elect of Mexico. We had a great conversation about a half-hour long. We talked about border security. We talked about trade. We talked about NAFTA. We talked about a separate deal, just Mexico and the United States. We had a lot of good conversation. I think the relationship will be a very good one.
I think he`ll do a -- I think he`s going to try to do very hard. I think he`s going to try and help us with the border.
(END VIDEO CLIP)
HAYES: It is unclear where the president gets that optimism from considering that Lopez Obrador has blasted Trump`s plans for a border wall, and quote, the demogoguery of patriotism, criticisms echoed across the United States this weekend as thousands gathered to protest the administration`s border policies. The latest on that next.
HAYES: The Trump administration is now planning to detain immigrant families indefinitely for days, weeks, even months, in direct violation of a 2015 court order. The Department of Justice arguing in a new filing Friday night they can legally keep kids together with their parents behind bars, or maybe in tent camps on military bases, as long as they want because of a new court order banning family separation and ordering the families to be reunited.
Now that court filing came just one day before hundreds of events across the country protesting family separation and the administration`s immigration policies. Big cities like Los Angeles, the U.S. border in El Paso, Texas, to cities and towns all across the country.
I want to bring two reporters who had been doing quite a work on this administration`s immigration policies, NBC`s Julia Ainsley and Vox`s Dara Lind.
Dara, let me start with you, because this is something you`ve been writing about a lot. You said from the beginning that basically the end game here was always indefinite family detention and I thought it was interesting they buried this on a Friday night, this court filing, where they basically said, look, you want us to unify families. We have a court order saying that we have to unify families. So, fine, we`re going to unify them and hold them as long as we want and you`re going to have deal with it.
DARA LIND, VOX: Right. Instead of saying the court order that came out last week and the 2015 court order that co-exists in peace and combined prevent the administration from either separating families or detaining them indefinitely, the administration says that because each of those court rulings only banned one thing, the more recent court ruling essentially trumps and means that they do get to keep families in detention as long as they`re detaining them together.
HAYES: Yes, and I want this to be clear, this has been a forced choice from the beginning. The entire argument has been, well, we either have to separate families and prosecute everyone or we have to hold families together in indefinite detention. They could just put them together and give them supervised release. No one is making them hold people. And in fact they`re explicitly prohibited from doing so by the Flores court consent decree, right?
LIND: right. I mean, there are multiple alternatives to detention that the administration either ended before doing this or has been using in small degrees while they try detain as many families as possible.
But their -- they have consistently believed that only reason they`re going to stop people from coming to the U.S. or from absconding into the U.S. without showing up for their court dates, is to keep them in detention for as long as possible and preferably to deport them as quickly as possible.
HAYES: So, Julia, we have got some more reporting going on about how hard it has been for the administration to unite these families. Politico saying that as the deadline looms, Trump officials are struggling to reunite migrant families. They`re now working under a clock from this federal judge that says you have to reunite them.
Do we have a sense of what the numbers are? They seem like they`ve gone dark in terms of even reporting what the status of things are.
JULIA AINSLEY, NBC NEWS: Right, Chris, they went dark. I mean, the number we were using a lot when the separation policy was really gearing up in full swing was about 2,300. There are 2,300 children who were made unaccompanied minors, because of this administration and that there were about 11,200 in total in HHS custody. Some of those have been separated before and some of those just crossed without parents altogether.
But we know that about 300 to 500 were easily reunited. That doesn`t mean they reached in and they were able to do some sort of systematic reuniting. Those were children we believe who had just recently crossed the border and so they were still in the custody of Customs and Border Protection. It is much easier before you send them out to 17 states across the country. It`s much easier when they`re still at the border, they`re close by to the federal detention centers that are holding the parents to quickly put them together.
Now they are far flung and there doesn`t seem to be a systematic way to do this. And something that Dara touched on that I just wanted to go back to, about the forced choice that is really not a forced choice here is that the Obama administration was in the same position in 2015. They didn`t need a court order to tell them not to separate parents and children, they just thought that that was humanitarian nonstarter, but they were also operating under that Flores agreement that was reinstated in 2015 to say that it also applied to children with their parents, and they decided to let them go on ankle monitors.
So the fact that that is not in the discussion now really has a lot of people scratching their heads. How can they come forward and make a legal argument that they have no other choice when the Obama administration was in the same place and definitively found another solution.
HAYES: And Dara, it seems to me that there is like a real practical and profound -- both practical and legal and humanitarian issue, which is like they going to do this? Are they going to comply with a federal court order? And are they going to reunite these families and these parents and kids? That is an open question at the moment.
LIND; See, the administration might not have been in this position had they not maintained to Julia and me and to the rest of the press that they knew where all the parents and children were and could reunite them whenever they wanted and were choosing only to do so when parents agreed to be deported.
It is not clear that that was actually true, because if that were the case, why aren`t they doing it now? And so simultaneously they`re coming up against this deadline for how long they can keep families in detention who have come more recently and this deadline for how long before they have to start reuniting everyone.
HAYES: They need to be publicly reporting this data. I mean, the amount of dissembling, obfuscation, and outright deception from the beginning on this has just been completely, completely unacceptable. Julia Ainsley and Dara Lind, thank you very much.
LIND: Thank you.
HAYES: Before we go, a reminder, there is a new episode of our podcast "Why is This Happening?" out tomorrow with Eliza Griswold. She is an amazing new book that takes a humanizing look at what happens when frakking comes to your town. It`s an astounding story. Subscribe wherever you get your podcasts.
That is All In for this evening. The Rachel Maddow Show starts right now.
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