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Trump preparing to unveil Supreme Court Justice pick. TRANSCRIPT: 7/9/2018, All In with Chris Hayes

Guests: Richard Blumenthal, Harry Litman, Vanita Gupta, Jonathan Chait

Show: ALL IN with CHRIS HAYES Date: July 9, 2018 Guest: Richard Blumenthal, Harry Litman, Vanita Gupta, Jonathan Chait

CHRIS MATTHEWS, MSNBC HOST: -- senators to flee for their lives or to demand that they fight until as one recent Democratic star put it so well, until the last dog dies. And that`s HARDBALL for now. Thanks for being with us. "ALL IN" with Chris Hayes starts right now.

(BEGIN VIDEO CLIP)

CHRIS HAYES, MSNBC HOST: Tonight on ALL IN.

DONALD TRUMP, PRESIDENT OF THE UNITED STATES: This could be a presidency that chooses the most Supreme Court Judges in history. It could happen. It could happen.

HAYES: In just one hour Trump will announce his second Supreme Court pick.

TRUMP: I believe this person will do a great job.

HAYES: Tonight, the leading contenders and why they`re all pretty much the same.

TRUMP: They`re excellent. Everyone, you really can`t go wrong.

HAYES: Then the administration failing to meet a court deadline to reunite kids with their parents. Plus, a brand new theory about Trump and Russia.

TRUMP: Putin`s fine.

HAYES: And the President`s fixer threatens to break his silence.

MICHAEL COHEN, FORMER LAWYER OF DONALD TRUMP: People are seeing through the nonsense.

HAYES: ALL IN starts right now.

(END VIDEO CLIP)

HAYES: Good evening from New York, I`m Chris Hayes. In one hour the President will announce his decision on the most consequential Supreme Court nominee in a generation at least. Washington is a buzz of speculation on just which a potential nominee has won the president`s favor. New York Times has reported that just hours ago one of the reported final four was spotted leaving the U.S. courthouse in Washington D.C. accompanied by four black SUVs believed to be Secret Service. Another spotted back at her home in Indiana where she was clearly not getting ready for announcement. But here is the truth and it`s important to keep focused on this. The real decision for Supreme Court nomination was made for Trump and the nominee will be another from the list by the conservative group of the Federalist Society and its current effective leader in this enterprise, Leonard Leo. Leonard Leo`s a man who also has strong ties to the judicial crisis network at the right-wing organization which helped block scores of Obama judicial nominees and was key in the P.R. blitz to outright deny a hearing to President Obama`s last Supreme Court justice pick Judge Merrick Garland helping Mitch McConnell effectively steal that Supreme Court seat. Leonard Leo is also connected to the dark money organization called be age group which according to the nonprofit watchdog group open secrets donated $1 million to Trump inauguration though it tried mightily to keep it a secret by donating anonymously.

(BEGIN VIDEO CLIP)

SEN. CHUCK SCHUMER (D-NY), SENATE MINORITY LEADER: President Trump during the campaign ask Leonard Leo, the founder of the Federalist Society to assemble a list of possible Supreme Court justices for him to pick from. Mr. Leo was not only aware of candidate Trump`s preference for a Supreme Court that would reverse Roe v Wade, he himself spent his career in pursuit of it. No one has been more dedicated to overturning Roe v Wade than the very man who chose the list of 25.

(END VIDEO CLIP)

HAYES: So any one of the President Trump`s picks is essentially a Leonard Leo pick and that nominee will hold in their hands the future of legalized abortion of Roe v Wade the almost certain collision course as well between President Trump and the Mueller investigation with questions about whether the President himself is above the law as well as of course a whole raft of questions about civil rights, labor rights, consumer rights, regulation that have already been chipped away by the courts majority. Senator Richard Blumenthal member of the Senate Judiciary Committee joins me now. I want to start with something that your colleague Senator Bob Casey said today and get your reaction. We`ll see what they view tonight but I`m going to be a no and that`s because it`s a corrupt process when you can only pick from 25 people from a list generated by it and developed by the Heritage Foundation and Federal Society and funded by the corporate right. I cannot support that. It`s a flawed system. Do you agree with him?

SEN. RICHARD BLUMENTHAL (D-CT), SENATE JUDICIARY COMMITTEE: I agree totally. And the reason is quite simply that every one of the names and nominees potentially on this list has been vetted and screened to meet the Trump litmus test. Let`s be very, very blunt here, Chris. I was a law clerk to Justice Blackmun in the year after he wrote the majority opinion in Roe v Wade. I`ve argued cases in the United States Supreme Court four of them. Never before has a President outsourced the decision of a Supreme Court nomination in this way. Never before has a president in effect made the Federalist Society take him as a puppet. The President of the United States has become a puppet here of a far-right fringe group and at stake are the potential of rolling back rights involving health care the millions of Americans protected from pre-existing condition, but also taking us back to a time when abortion was criminalized, women were prosecuted. They died and they were denied access to contraception. So real impacts on real lives more than just the chipping away the possible overturning because of this corrupt process.

HAYES: Let me just make sure that I understand you. I said you do you agree -- Casey says he is a "no" already. It doesn`t matter who it is. Are you and "no" already?

BLUMENTHAL: I hesitate to advance the President process. If it is one of those nominees I would be almost certainly a "no" and I believe that my colleagues will join me because at stake are not only those rights but also as you mentioned earlier the idea that we could have the swing crucial vote on whether the President has to comply with a subpoena the grand jury, whether he can pardon himself or others, whether he has to obey the Emolument`s Clause, the chief federal protection against corruption. I`ve sued the President of the United States along with 200 of my colleagues to compel him to obey that clause. I think that this nominee has to commit to recuse him or herself but I would be a "no" vote.

HAYES: Do -- you`re familiar with the court, you just told me you clerked on the court, a biographical detail that I did not know actually. There is this argument right, that this is all people who are fundamentally you know, trying to call balls and strikes in the words of Justice Roberts that that`s it`s all sort of processed driven and you know, that awesome the outside we`re so concerned with outcomes and we`re focused on that but the people like Leonard Leo and others they`re not -- they`re not testing for a litmus test on how someone`s going to decide, it`s about judicial temperament and their approach to the Constitution. Do you buy that?

BLUMENTHAL: You know, we have heard these phony platitudes again and again and again. We heard him from Neil Gorsuch, we heard him from now Chief Justice Roberts about adhering to established precedent. Just a couple weeks ago we saw and established precedent 40 years old overturned by the court with Roberts and Gorsuch supporting that step. We know that these evasive, canned, rehearsed answers are absolutely meaningless when they are accompanied by refusal in response to my questions and others to state that Brown v Board of Education was correctly decided, or Roe v Wade was correctly decided, or Loving versus Virginia, or (INAUDIBLE), other well- established principles of law so the answer to your question is no more business as usual, no more differential or courteous acceptance of these phony platitudes.

HAYES: That sounds like a make for interesting hearings one way or the other. Senator Richard Blumenthal, thank you for some time tonight.

BLUMENTHAL: Thank you.

HAYES: Harry Litman former Deputy Assistant Attorney General at Justice Department, former at U.S. Attorney for the Western District of Pennsylvania and he clerked for Justice Kennedy in the Supreme Court and Vanita Gupta is a President and CEO of the Leadership Conference in Civil and Human Rights and a former Assistant Attorney General of the Justice Department`s Civil Rights Division. So here`s to me the preamble for tonight, right? The right has felt like it was done wrong time after time. They felt like they were done wrong with Justice Bork when he was voted down, then that they got Souter, and then they got Kennedy who upheld the court holding of Roe and basically my read is they have developed a process over the years to basically vet out for that happening again. They`re very explicit about that. Trey Gowdy was complaining about Souter in those folks and my feeling is we should take them at their word that they figured out the process to make sure that that doesn`t happen again.

HARRY LITMAN, FORMER DEPUTY ASSISTANT ATTORNEY GENERAL, JUSTICE DEPARTMENT: I take him at their word and really they`ve developed this since before then. I mean Kennedy was preceded by Bork and then Ginsburg. They didn`t have the direct political line, the automatic OK from the president before. There were camps that that would choose one nominee or another but I absolutely take them at their word that they have sussed it out. They are now at the point of dominance for a generation and they`re not going to mess up.

HAYES: Vanita, what do you say to people that say you know, you can`t know ahead of time that judges are just going to make these decisions in front of them as you look to evaluate what the stakes are for her the who the President names tonight.

VANITA GUPTA, PRESIDENT AND CEO, LEADERSHIP CONFERENCE IN CIVIL AND HUMAN RIGHTS: Look, I think everything is at stake tonight. And this process has really been corrupt because not only do you have the Federalist Society and the Heritage Foundation ultra-conservative organizations that as you say has sussed out the process and vetted for the extreme agenda that they represent but in this case and this is what is unprecedented, you have a president who has been more than explicit about having tests about wanting to take away women`s freedom to control our bodies, about wanting to take away health care for millions and only appointing judges who will do that. You have a president who over the past year has lifted up nominees who have told a Senate Judiciary Committee that they will not say that Brown versus Board of Education was correctly decided. I mean this is -- this is a no kind of norms apply at this moment which is why given how much is at stake with health care, with women`s freedom, with civil rights, the Supreme Court is usually a backstop to prevent other institutions from rolling over a constitutional and civil and human rights and that is what we are faced with today with nominees who have been vetted and who have met Trump`s clearly explicitly stated tests invented by these ultra-conservative groups.

HAYES: Yes the President at one point in the campaign trail said it would be almost guaranteed that Roe would be overturned if he got two --

LITMAN: Right. And that`s how he came to have this list in the first place to reassure he was sort of a deranged candidate, and he wants to signal I`m going to do your -- I`m going to do right by you on this list.

HAYES: And it was totally unprecedented. I mean, it was this very explicit bargain where people -- there were people saying don`t trust this guy because you can`t trust him on judges and he said what do you want? Give me a list and basically, that`s what we got.

LITMAN: And not only is what we got, he`s executed it. I mean, for all the chaos and fecklessness of every other area, he`s not just on the Supreme Court by the Court of Appeals. He really has played it by the book. And I think Vanita`s word is exactly right. It`s been a backstop now for 30, 40 years and that`s exactly what`s going to be going away and is going to move to state courts and democracy. I`ll tell you what we won`t have though today. Remember within 45 minutes of the nomination of Ted -- Robert Bork, Ted Kennedy was out with this speech at defining Bork, Robert Bork`s America. We will not be able to hear about Thomas Hardiman`s America or Brett Kavanaugh`s America.

HAYES: Why not?

GUPTA: And Chris --

HAYES: Just answer that question first, Harry. Why not?

LITMAN: In short. it won`t -- it won`t sell in the same way.

HAYES: Vanita?

GUPTA: And Chris, I just -- I want to say look, we are at a point in this country where millions of Americans who never thought of themselves as activists before are literally enraged by the vision of America that this administration is putting out and the courts are a huge part of defining what freedom looks like, what Liberty looks like, what our civil human rights look like, what health care and access to health care and women`s rights are going to look like, and women are leading the charge. And I think that now is a moment where progressives who care so much about the kind of what this country is about, the kind of America we deserve are going to stand up and say look, yes the Democrats don`t have the majority in the Senate but there is a majority of senators who do believe that there should be access to health care in the millions afforded by the Affordable Care Act and who do believe that women should have the freedom to choose what we do with our bodies and who don`t want to see a rollback on civil rights and voting rights and LGBTQ rights. And that`s what we`re going to see now is the energy that is -- that is burgeoning all around the country coming to bear on the fight to save the court.

HAYES: Yes, we should say that`s tape of GOP Senators getting on the bus to go to the White House tonight.

LITMAN: Good point speaking of majorities. Gorsuch is the first Justice in history to be nominated by a President who didn`t get a majority of the vote and confirmed by a Senate that together doesn`t represent a majority of the vote and this justice will surely be the second. Well, I would say not surely with this caveat. They have 50 votes right now of people that can vote in Washington D.C. John McCain is still receiving treatment for cancer back in Arizona. That`s a very thin margin, lots can happen. I think that there -- it will be very interesting to see what happens here in the reaction tonight and how it plays out over the summer. Harry Litman and Vanita Gupta, thank you both. Next, Michael Cohen sending signals he is ready to cooperate putting him on a collision course with the President. The latest on the fallout between Donald Trump and his former fixer after this.

(COMMERCIAL BREAK)

HAYES: As we await the President`s Supreme Court announcement tonight, Donald Trump`s former lawyer and fixer Michael Cohen appears to embarking - - be embarking on a new legal strategy and it`s putting him on a collision course with his one-time boss. Cohen`s latest moves proclaiming his loyalty to country and family in the interview and then adding longtime Clinton ally Lanny Davis to his legal team has seemed to signal he`s willing to cooperate with federal prosecutors that are investigating him. Now, according to the President`s outside counsel Rudy Giuliani, they are eager to see Cohen cooperate.

(BEGIN VIDEO CLIP)

RUDY GIULIANI, LAWYER OF DONALD TRUMP: Michael Cohen should cooperate with the government. We have -- we have no reason to believe he did anything wrong. The President did nothing wrong with him so we`ve gone through every document we can.

UNIDENTIFIED MALE: So you have no concerns at all about anything that Michael Cohen might tell --

GIULINI: As long as he tells the truth we`re home free.

(END VIDEO CLIP)

HAYES: But Cohen`s newest attorney, the aforementioned Lanny Davis responded in a tweet this morning, did Rudy Giuliani really say on Sunday shows that Michael Cohen should cooperate with prosecutors and tell the truth? Seriously? Is that the Trump and Giuliani definition of truth? Trump-Giuliani next to the word truth equals oxymoron. Stay tuned #TheTruthMatters. For more on Michael Cohen`s impending showdown with the President, I`m joined by former Watergate Prosecutor Nick Akerman and former U.S. Attorney Joyce Vance both MSNBC Legal Analysts. That strikes me is a pretty clear signal in one direction or another from Lanny Davis, right? Am I wrong?

NICK AKERMAN, MSNBC LEGAL ANALYST: You mean, it`s a signal because he hired Lanny Davis?

HAYES: That he hired Lanny Davis and the first thing that Lanny Davis does under this new contract is essentially tweet a warning shot.

AKERMAN: Yes, he does but this was not unusual. During the Watergate investigation, it was amazing how many Nixon people actually went out and looked for Democratic lawyers in order to try and appeal to this idea --

HAYES: Really?

AKERMAN: Yes. That somehow, they thought that by having somebody who`s like former Senator Tydings represent them in our office they kind of bought into the idea that we were a bunch of Kennedy Democrats which was not true. So they were hiring lawyers thinking they could appeal to us and somehow get a better in if they came in with these lawyers. You even saw Jared Kushner, he`s retained the woman who was Deputy Attorney General under Clinton.

HAYES: Yes.

AKERMAN: A Democrat. I mean, I think it`s the s4ame sort of mindset that people don`t realize that what you ought to be looking for is the best possible lawyer.

HAYES: Giuliani, Joyce, also is play -- he`s been playing this game now for them for several months of just moving the goalposts on like when they`re going to cooperate under which conditions for Robert Mueller. He threw a new one -- a new one out over the weekend. Take a listen.

(BEGIN VIDEO CLIP)

GIULIANI: We would not recommend an interview for the President unless they can satisfy us that there`s some basis for this investigation. We`ve got to see something. I mean, something started this investigation. What we`re asking him for is, is this to witch-hunt that a lot of people think it is or is there a factual basis for this?

(END VIDEO CLIP)

HAYES: I mean, what do you make of that?

JOYCE VANCE, MSNBC LEGAL ANALYST: You know, it`s interesting Giuliani is negotiating over the President`s interview with the public, with the press but there`s no appearance that he`s negotiating with Mueller or any of his prosecutors at this point in time so I think at the point where we see Mueller scheduling an interview or grand jury testimony we`ll find out if this is posturing or just if it`s for real. But Chris I think we all know there was never any legitimate intention on the part of this President to sit down with these prosecutors for a real interview simply too risky for him.

AKERMAN: And look, I worked with Rudy Giuliani. I was in the same office with him. He wouldn`t -- if anybody ever came in and said tell me what this investigation. Give me all your evidence so I can decide whether we`re going to evade your subpoena then I will come in. He would have laughed that defense lawyer right out of the office. And the reason for it is simple. You don`t let people know what your investigation is, what you have because then they`re going to tailor their testimony to precisely what the evidence is.

HAYES: Giuliani who had sort of gone dark for a while was out talking again this weekend. He also seemed to admit something I thought was fairly significant. So you`ll remember the James Comey`s account of the President pulling him aside, everyone else leaves the room basically says can you see your way to letting Flynn go right, directly saying. Now, when he said that the President -- the White House, everyone said Comey is a liar, that never happened. Listen to what Giuliani admitted this weekend. Take a listen.

(BEGIN VIDEO CLIP)

GIULIANI: What he said to him was can you -- can you --

UNIDENTIFIED MALE: Comey since he took it as a directive.

GIULIANI: No, that`s OK. I going to take it that way. I mean by that time, he had been fired and he said a lot of other things, some of which has turned out to be untrue. The reality is as a prosecutor I was told that many times can you give the man a break either by his lawyers, by his relatives, by friends, you take that into consideration but you know, that doesn`t determine not going forward with it.

HAYES: Joyce, what do you think no big deal? First of all, confirming the essential part of the Comey account of this but also no big deal the President tells the head of the FBI lay off my campaign worker who lied to you guys.

VANCE: It`s absolutely incredible. If somebody comes into your office when you`re a prosecutor and says you know, whether it`s a lawyer or a friend of the subject or target and says please lay off my friend and here`s the reason that you should lay off of them or whatever they say to you, that`s obstruction of justice and it might be criminal, it might just be something where you tell them get out of my office, but it`s outrageous. Here we have Jim Comey`s boss, the President of the United States telling him to cut back on an investigation and apparently Rudy Giuliani is confirming Jim Comey`s version of events.

AKERMAN: And I could tell you exactly why he`s doing that because there is somebody else out. There is another witness that have a conversation with Donald Trump after that meeting between him and Comey and Trump admitted to that. It could be Hope Hicks, it could be Reince Priebus, it could be a whole host of people. But the bottom line is Rudy Guiliani is anticipating that Donald Trump is going to be shown to be a liar very soon on that issue.

HAYES: And in fact, there`s a pattern here. He keeps coming on air and admitting things that the President denied. Remember the knowledge of the payments to Michael Cohen for instance.

AKERMAN: And that`s going to be proven to by Michael Cohen`s own records.

HAYES: Right. Because he knows, Giuliani knows that this stuff is documented in other places.

AKERMAN: Right. so they have to move the goalposts otherwise they`re going to have to just right stuck with a bald-faced lie which it is anyway.

HAYES: Nick Akerman and Joyce Vance, thank you both for joining me. Coming up, could the President`s ties to Russia be even more extensive than anyone knows? A looming question ahead of his meeting with Vladimir Putin behind closed doors after this.

(COMMERCIAL BREAK)

HAYES: A week from today the President is set to meet behind closed doors with Russian President Vladimir Putin one-on-one plus translators. The meeting is raising concerns, grave ones among U.S. allies and some of the President`s own advisors that Trump will be outmatched by Putin who has reportedly been cultivating their personal relationship in a series of phone calls. According to the Washington Post, the Russian President complains to Trump about fake news and laments the U.N. -- U.S. foreign policy establishment, the deep State in Putin`s words is conspiring against them. It`s not us, Putin has told Trump, it`s a subordinates fighting against our friendship. It`s beautiful. The precise relationship between the two leaders is at the heart of the mystery still surrounding the 2016 election, did the Trump campaign, did the candidate at the heart of it conspire with Russia to subvert American democracy or and does Russia have some kind of leverage over Donald Trump?

In a new cover story for New York Magazine, Writer Jonathan Chait argues we have not allowed ourselves to consider the full range of possibilities. Chait lays out what could be considered the worst-case scenario for Trump- Russia collusion, that Donald Trump has been a Russian intelligence asset since 1987. New York Magazine Jonathan Chait joins me now. OK, it sounds insane. I just want to say it really does, like the idea that he went -- he goes to Moscow in 87 is cultivated as a Russian intelligence opposite -- asset and is this sort of like sleeper cell for decades sounds nuts. It sounds like the stuff conspiracy theories, why are you not insane?

JONATHAN CHAIT, WRITER, NEW YORK MAGAZINE: so that`s a great question, Chris. I get that all the time. So first --so first of all, the piece acknowledged that that is probably not true but it might be. And one of the reasons I wrote this is you need to take seriously some of these low probability, high impact scenarios. You know, before the election sort of everyone heard that Hillary Clinton had about an 80 percent chance of winning and we all just treated it like that meant a hundred percent and didn`t think about what would that 20 percent alternative really mean. So that`s part of what I`m doing with this -- with aspects of this piece like this trip to Moscow. You know, what would it mean if it -- if it really went that deep. Now, there`s a lot of ways in which this scandal could be really bad and not go that deep but I think you need to consider that for another reason which is that everyone always says well, this has been Trump`s view forever.

All the stuff he`s saying with the Western Allies, splitting us apart from the West and how he`s sort of pissing on them all the time in saying you know, we should let them go their own way, that`s just what he`s always thought. It`s not really what he`s always thought, it`s what he`s thought since 1987. He never thought that before then or at least he never said it before then. And in 1987 is when he went to Moscow and he`s vetted by the Russians and tours Moscow and then he comes back then he starts talking about running for President for the first time and then he starts talking for the first time about how our allies are a bunch of freeloaders and we should kick him to the curb.

HAYES: Yes, we should say that he is -- I mean, I just want to be clear here, he is really consistent on that point, right, the idea of this sort of zero sum view that our allies are free riding and we`re paying for it. He takes out full-page ads that are $100,000. He sounds identical to how he does now, right. The idea that like we`re getting abused, we`re getting taken for granted and we`re paying for other people`s defense.

CHAIT: We`re paying for other people`s defense who we`re defending against the Russians.

HAYES: Right. At that point particularly, yes.

CHAIT: So it really dovetails with Russian foreign policy interests then and now.

Now, again, that`s probably a coincidence, but it might not be. I mean, I think you know you have to take seriously the possibility that it`s not a coincidence. And, you know, I tried to assemble all the information that I think can be brought to bear on this question. Like I quote John Brennan, who was the CIA director as recently as 2016, who said that he thinks the Russians have something over on Donald Trump. And the weird thing is thinking like the CIA director, hey, maybe he knows what he`s talking about, that`s the kook theory as far as we understand it.

Like, the kooks are the ones who are saying we should listen to the guy who is running the CIA. Usually the kooks are saying the CIA is part of the conspiracy, and now it`s we kooks who say let`s listen.

HAYES: And I want to follow up on that, but first there`s one piece in here that I`d completely forgotten about. So, I want to play Brennan`s testimony May 2017 that you that cite in the piece just to give people a flavor of how he talks about it. Take a listen.

(BEGIN VIDEO CLIP)

JOHN BRENNAN, FORMER CIA DIRECTOR: I`ve studied Russian intelligence activities over the years and have seen it again manifest in many different of our counterintelligence cases and how they have been able to get people, including inside of CIA to become treasonous and frequently individuals who go along that treasonous path done even realize they`re along that path until it gets to be a bit too late.

(END VIDEO CLIP)

HAYES: And you also have a reminder in the piece about that, like, he got briefed in what was it, August -- in August 2016, the head of British intelligence flies to the U.S. -- this was reported by Jane Mayer -- to brief him personally on what was going on between the Trump campaign and Russia.

CHAIT: Yeah, and The Guardian had another report about another western European or I think maybe an eastern European intelligence agency briefing him about the same thing. They were listening to intercpets of Russian officials talking about the Trump campaign and the connections they had between them.

So, we don`t know what those intercepts said, but clearly something alarmed him, set him off and made him reach these dire conclusions.

HAYES: Here -- you know, you have this metaphor of the cave, right, that we keep thinking the bottom is just right around the corner and maybe we`re at the mouth of it, right. And I`ve had this thought too, a vertigo- inducing thought. I never know quite where to orient ourselves. And we just know the facts as they come to light, you kind of assemble them, you come up with a mental theory.

My question to you is are you confident we will know the final truth, right, that like ultimately the thing will be revealed about what is true and what`s not, what the facts of the matter are?

CHAIT: I think some of the facts we`ll find out. I think the things pertaining to the end of the Trump campaign we`ll probably find out, because a lot of people are flipping and cooperating with Mueller. But if there`s leverage in Moscow my guess is that`s going to stay in Moscow. I don`t see how Mueller`s going to get at secrets locked in the Kremlin.

HAYES: All right, Jonathan Chait, thanks a lot.

CHAIT: Thank you.

HAYES: We are waiting for the president`s announcement of his Supreme Court nominee. And while the pageantry is going on at the White House, the Trump administration says they will fail to meet the court-imposed deadline to reunite immigrant children with their parents. The latest on that, next.

(COMMERCIAL BREAK)

HAYES: All right, so just last month the administration said it knew just how to reunite immigrant children that they had ripped from their parents. And then today they were proven wrong.

Homeland security said in June, quote, "the United States government knows the location of all the children in its custody and is working to reunite them with their families," adding "this process is well coordinated."

But in court today, the government said it would fail to meet a Tuesday deadline to reunite children under 5 with their parents.

Adding to the difficulty is confusion over how many children need to be reunited. Last week the government said there were 101 such children, that`s children under 5 in their custody taken from their parents, then the number rose to 102, leaving one to wonder where did the other kid come from?

Today, the government said in six cases the adults have criminal histories or aren`t really the children`s parents.

As Vox reported, the ACLU says there might be, quote, "as many as 10 additional separated children the government has not included on its list."

Now, the government expects to reunite maybe half or a little more of those young children, that`s the kids under 5, by tomorrow`s court-ordered deadline. We don`t even know for sure how many older kids remain to be reunited, because the government still will not say exactly how many children are in custody they took from their parents. And that does not bode well for the July 26 deadline to reunite those kids, up to 3,000 of them.

Congressman Dan Kildee, a Democrat of Michigan, visited a facility where some immigrant children are held last week. He joins me here in New York tonight.

So, the governor basically said -- they had this court order that said kids under 5 there`s about 100 of them you have got to reunite them in two weeks and then you have another two weeks to do the full 3,000. They`re going to miss the deadline. They`re going to probably get an extension. Are you confident they know what they`re doing and they`re trying hard enough?

REP. DAN KILDEE, (R) MICHIGAN: I`m confident they do not know what they`re doing. When I visited the facility in Grand Rapids, Michigan I spoke to some of the case workers there who are responsible for managing these cases of these children.

They were spending time on the telephone calling every federal detention facility that they could find a telephone number for to try to track down the parents of the kids that are under their care. They couldn`t get the answer from the federal government themselves, from the offices, so they were calling the detention centers to try to locate parents.

HAYES: Wait a second, the case workers, this is Bethany Christian Services that`s in Michigan.

KILDEE: Right.

HAYES: You visited there. They have some tender age children under 5.

KILDEE: They did. I saw maybe a dozen or so...

HAYES: Kids under 5?

KILDEE: Yes.

HAYES: So what you`re telling me is those case workers are affirmatively just cold-calling detention centers attempting to locate parents, it`s not some central thing coming from HHS where they`re making the match.

KILDEE: No.

And I will say this, that agency, they`re trying hard. It looks like the kids are being well cared for. Privately, they -- all of them said these kids do not belong here. They shouldn`t be here. They should be with their parents.

I mean, I spoke -- to the extent that I could -- with a little boy who`s probably 3 or 4 years old. And when I walked into the room where he was sitting, he looked up at me as if I wonder if this will be mom or dad.

It just breaks your heart to see these kids torn from their parents. They don`t know where their parents are. They don`t know what`s happening.

I worked in this field. I worked in the child welfare system. I know something about the trauma that children face who have been taken away from their parents. I worked every day to try to get them back into an intact family. And that trauma, they will live with that trauma for the rest of their lives.

In this case, they were taken away from the one person, perhaps, that they knew cared so much about them that they were willing to sacrifice everything to try to save them from the violence that they were facing back home. They were taken from that one person by the government.

The worst thing about this entire story is that the Trump administration made this decision to separate these children as a tactic because they knew -- they thought it would work to prevent others from seeking shelter and asylum in the United States of America. Shame on them. Think about the morality behind a tactic to tear a child away from their parent, because they think it might dissuade someone else from coming to the shores of the United States, to cross this border to try to find some degree of security and safety for their children. Shame on them.

HAYES: Is congress -- I mean, so I`m watching the government sort of say, well, we`ve got it under control, then doing a little hide the ball on the numbers and doing these court filings, missing a deadline. Again, this is 100 out of as many as 3,000. They can`t make a two-week deadline. They`ve got 50 of them.

Is congress going to do anything about this? Shouldn`t there be some very serious oversight being exercised right now?

KILDEE: There should be. And of course our visit to the Senate was one way of exercising that oversight.

I will tell you, it took a long time to be able to get that appointment scheduled. And some of my colleagues now -- I saw that congressman Mark DeSaulnier in California tried to get into one of these facilities, was turned away. We`re not able to do our job to exercise oversight, because thge administration is telling these agencies don`t let members of congress in.

HAYES: I feel like this is bipartisan at this point. I mean, like, Republicans have been turned away as well. And it seems to me that congress should be holding hearings where HHS and where Nielsen and Azar have to come before and actually tell the truth about what is going on.

KILDEE: Absolutely.

Obviously, one of the problems that we see is that the Republican leadership in this congress have their arms so tightly wrapped around Donald Trump`s ankles that they will not do anything that upsets him.

HAYES: Ankles.

Congressman Dan Kildee, thank you very much.

KILDEE: Thank you.

HAYES: Coming up, the president`s upcoming announcement for his Supreme Court nominee. It`s going to happen tonight. Pete Williams will have the latest. And I`ll talk to Sherillyn Iffil and Jess McIntosh about what happens next after this.

(COMMERCIAL BREAK)

HAYES: All right, you are looking at live footage outside the Supreme Court, where in anticipation of the imminent announcement of President Trump`s replacement for Justice Anthony Kennedy there are protesters out. You see them holding the sign "Protect Roe," which is apposite given the fact that Anthony Kennedy was part of the majority that last upheld the core ruling of Roe, and there are many who believe that in his absence, and given the president`s explicit pledge to appoint anti-abortion justices, his explicit pledge that probably Roe would be overturned if he got two or three picks, that that is now on the chopping block and will be put -- will be effectuated by whoever he names in the next 15 minutes.

At the top of the hour, we will know who Donald Trump`s nominee to replace Justice Anthony Kennedy, giving he Republicans a conservative jurisprudence that could reshape the country.

I`m joined now by NBC News justice correspondent Pete Williams.

Pete, you`ve been a long-time observer of the court. You`ve covered the court. How has this process been different?

PETE WILLIAMS, NBC NEWS: Well, let me start by telling you, first of all, who the nominee is not going to be. We know it`s not going to be Amy Coney Barrett. And we know it`s not going to be Raymond Kethledge.

And how do we know that? Because they`re both home -- one in Michigan, one in Indiana.

We don`t know where the other two are, but there are strong indications to think it may well be Brett Kavanaugh, the judge here in Washington.

Among the indications, Brett Kavanaugh was seen leaving the D.C. courthouse, which is just a couple of blocks down Pennsylvania Avenue from the White House earlier this afternoon in a small flotilla of secret service vehicles. Now, they may have been taking him somewhere else. We don`t know where he went, but he doesn`t usually travel that way.

Secondly, the D.C. Circuit issued a court opinion today, an unsigned opinion for the court, a per curiam opinion, it`s called, that he was a member of. That`s a little unusual. The D.C. Circuit doesn`t normally hand opinions down on Monday, so that`s suggestive -- it`s not definitive, it`s suggestive.

As for Thomas Hardiman, we don`t know where he is. We didn`t know where he was last year either when the choice was down to between him and Neil Gorsuch.

But as for what`s different this time, everything, because last time when the president nominated Neil Gorsuch, he was trading a conservative seat, the one left vacant by Antonin Scalia`s death, for another conservative judge, in this case Neil Gorsuch from the 10th Circuit. This time it`s a conservative for Anthony Kennedy, who came to the court 30 years ago as a conservative but became the justice who was willing to vote sometimes with the liberals when the court, for example, approved same-sex marriage, when the court whittled away at the circumstances that states could impose the death penalty, upheld affirmative action.

So in a number of ways he was the swing vote that this -- whoever is appointed by President Trump is certainly not going to be, it`s going to lock in a permanent 5-4 majority for perhaps years to come.

HAYES: Do we know -- Kavanaugh and Hardiman are the two sort of finalists. These are both people that have sort of -- Kavanaugh particularly sort of moved in conservative legal circles for years.

WILLIAMS: Yes. In fact, he is -- he`s as close to a child of Washington as you can get. He was not actually born here, but he grew up in Maryland nearby, where his mother was a state court judge.

But he went to Georgetown University. He worked in the Justice Department under the solicitor general at the time, who was Kenneth Starr. And if that name`s familiar, it`s because he became the independent counsel investigating Whitewater and the Lewinsky scandal. And Brett Kavanaugh was a senior aide to Ken Starr during that work.

And then he went to work in the George W. Bush White House. So he`s traveled in those Republican and legal and political circles.

And interestingly, by the way, he said in a law review article a couple of years ago that his experience in the White House persuaded him that a president should not be subject to civil lawsuits, criminal investigations, or criminal prosecutions because of the pressures of the job.

Now, he went on to say that that would require action by congress to make the president exempt, but it tells you something about how he sees the obligations of the office.

HAYES: That`s a fascinating tidbit. Pete Williams, thanks for joining us.

WILLIAMS: You bet.

HAYES: To talk about who the presidents`s about to nominate on the Supreme Court, I`m joined by Sherrilyn Ifill, president and director counsel of the NAACP Legal Defense Fund, and Jess McIntosh, executive editor at Share Blue media.

Sherrilyn, your thoughts tonight.

SHERRILYN IFILL, NAACP LEGAL DEFENSE FUND: Well, my thoughts tonight, Chris, is that this is pretty extraordinary. It is extraordinary not only because the president has teed up a reality show announcement once again, but because this is an extraordinary circumstance. We`re dealing with a president whose close campaign aides have been under investigation, at least two indictments of senior people around the president, an ongoing special counsel investigation, the president having offloaded the selection of Supreme Court nominees to the Federalist Society.

The whole context of this is deeply unusual, an election coming up in just three months after last year, or two years ago when there was no vote on Judge Garland for the Supreme Court on the theory that it was too close the an election, but it was twice the amount of time as this one.

This is all so unusual. And so while I`m happy to talk about, you know, either of these potential nominees, Kavanaugh, or Hardiman, we shouldn`t forget the unusual context. This vote should not be happening this year. This is a rush. This is the same congress that as you indicated, Chris, has not had one oversight hearing about these children who have been separated from their parents. And we have Secretary Azar and Nielsen all giving conflicting stories about where the children are. No congressional intervention, but they canceled a recess in anticipation of trying to rush through a Supreme Court nominee who will change the shape of American democracy, equality and justice for generations to come.

What an unusual circumstance this is and really quite dangerous circumstance.

HAYES: I`m going to go back just momentarily to Pete Williams who I think has some news about who this choice is likely to be.

WILLIAMS: So, we are told now -- NBC News is reporting that the president will nominate Brett Kavanaugh to succeed Anthony Kennedy on the U.S. Supreme Court.

He is the person we were just talking to. Her it is just a little shy of eight minutes before the president was to speak, so this thing did hold pretty well, given -- I don`t know when the president made this decision, certainly by this afternoon when we now think Brett Kavanaugh was taken to the White House by a little caravan of secret service vehicles.

So it held pretty well, but this is what we`re about to hear from the president. We`ll see Brett Kavanaugh there in the White House with his family and the president will formally announce the news. But We can report that the president will choose, will nominate, Brett Kavanaugh, a U.S. District Court appeals judge here in Washington to succeed Anthony Kennedy, Chris.

HAYE: Thank you, Pete, for that.

Kavanaugh, not surprising. And someone who, as Pete and I -- Pete was saying, this is a guy who cut his teeth on the Starr report, co-wrote the Starr report, has moved in conservative right wing legal circles for the entirety of his career. He was largely seen as someone, like Neil Gorsuch, who would be in this position.

JESS MCINTOSH, EXECUTIVE EDITOR, SHARE BLUE: Oh, absolutely. And I think the least surprising thing about it is and we know about Kavanaugh is sympathetic to the idea that a commander-in-chief shouldn`t be dealing with questions from investigators, shouldn`t be indicted, shouldn`t be subpoenaed. And we know that Donald Trump makes decisions about everything based on what that person can do for Donald Trump.

So as soon as that legal thinking became paramount in Kavanaugh`s resume, of course Donald Trump was going to pick him. It is the least surprising thing that we could see.

But Sherrilyn is absolutely right, it is not about the pick, its about this vote. No matter who he put in, the fact that a president who is under investigation for possibly colluding with a foreign adversary to take the White House, is deciding who is going to make our policy for the next generation, is absolutely insane. Everybody who is in D.C. right now needs to get to NARAL, pro-choice America`s rally, go to the Supreme Court, stay there.

The reason why we had Kennedy in the first place is because America got really, really mad about the possibility of Bork, and they stopped it. And they got Anthony Kennedy in his stead. We can do this again, but it is going to be really, really hard.

HAYES: Yeah, I mean, Sherrilyn, last time I had you on to talk about this, you were stressing out, and I think there is sort of different ways people think about this, but it is a very razor thin majority they hold. It is one vote as long as John McCain stays in Arizona where he is getting treatment for cancer at this moment.

How do you see this?

IFILL: Well, it`s obviously if we go to the vote, it is very, very close, but Brett Kavanaugh, since he is the nominee, in light of the fact that Mitch McConnell wants to press ahead with this, he is going to face some extremely tough scrutiny on the very issues that Pete Williams raised earlier. This is someone, whoever the nominee, who has to be able to demonstrate that they are prepared to be independent of this president.

The president has already teed up questions that will likely go to the Supreme Court, whether he can pardon himself, for example, a whole plethora of issues that may wind up in the Supreme Court that are about the president.

And so this nominee, Brett Kavanaugh, is going to face seriously tough scrutiny on those points and the razor thin margin may not come out in his favor. I certainly hope that people recognize the importance of this and will vote for what is the best for this country and our future.

HAYES: Sherrilyn Ifill and Jess McIntosh, thank you both.

We are awaiting the president`s announcement, which is scheduled to be in just a few minutes. I`m going to hand things off to Rachel Maddow now, who will pick up our coverage of this impending announcement. Good evening, Rachel.

END

RACHEL MADDOW, HOST: Good evening, Chris. Actually, let me hold on to you for a second. We`ve just had this news that Pete Williams just broke on your air. Obviously, this is going to be an historic night no matter who is nominated. This president has not been in office a year-and-a-half yet. He`s making his second Supreme Court nominee.

But now with Pete reporting, NBC News, reporting that it is Brett Kavanaugh, it`s interesting. This is somebody who has been the subject of really, really, really hard fought confirmation proceedings in Washington before.

Chris, let me just get your -- just personally, as you`re learning this news just as we are, what is your reaction to this?

HAYES: You know, my reaction, twofold. One, I`m not surprised. It always seemed like this was the most Gorsuch like pick of the bunch. And by that I mean someone who had punched all the tickets, all the sort of elite credentials, and who had also spent his life in conservative right wing legal circles in which people can be sure they`re not going to get a suitor, right.

I mean, there is an entire infrastructure that`s been built up on the right to create processes, to create associations, to create pipelines of cultivation, to make sure that they get conservative justices appointed by Republicans who end up ruling in ways that align with their policy preferences and their constitutional theories, and they`ve gotten very good at it.

Gorsuch has performed in the first few years he`s been on the court speaks to that. And I think that Kavanagh is cut of that same cloth.

So it`s not surprising that this vetting process, which started way before the president was even sworn in, and one that has been the subject of a lot of attention and labor by people for whom this matters a lot, would produce this pick.

MADDOW: Yeah.

I think the thing that you`re identifying here, which I think is absolutely right, Chris, is that there is this infrastructure on the right when it comes to judicial nominees that just doesn`t have any parallel whatsoever on the left.

And so, therefore, there is a, even with an unpredictable president like this, there is a predictability to conservative nominees that would produce somebody like Kavanaugh.

Chris, thank you, my friend. Much appreciate.

HAYES: Thank you, Rachel.

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